U.S. Bankruptcy Court
Middle District of Alabama

Bankruptcy Reform Implementation

Automatic Stay

Exception to  Automatic Stay - Lease & Rental Agreements

§ 362(b)(22) excepts from the automatic stay an eviction or similar proceeding against a debtor residing under a lease or rental agreement where the landlord had obtained a judgment for possession prior to the debtor's filing.
Section Form Flowchart ECF Event Deadlines Flags
362(b)(22)
362(l) 		 Petition
§362(l)(4)(b) Notice		 362(b)(22) bk>misc>Intent to Cure Default
(certification and deposit due at filing)

propjudg-Deadline to Cure Default  30 days to cure entire monetary default

 FUNDS (indicates there are funds in the court registry)
bk>misc>Cure of Residential Judgment


satisfies propjudg
bk>court events>Certified Copy of Docket Event
(served by Clerk after 30 deadline for Deadline to Cure Default is due)


satisfies propjudg
bk>motion>Release Funds from Court Registry

 

bk>order>Release Funds from Court Registry
 

The debtor can attempt to delay the exception from applying for 30 days:
§ 362(b)(22) is subject to the provisions of § 362(l), which states that § 362(b)(22) applies on the date that is 30 days after the petition's filing if: 1) the debtor files with the petition a certification that - under relevant law - the debtor would be permitted to cure the default that gave rise to the judgment for possession and 2) the debtor deposits with the Clerk of Court on the petition filing date the amount becoming due within 30 days after filing

The debtor can attempt to make the exception inapplicable to the debtor’s case:
If the debtor does both of the above [i.e., certification plus deposit] and also files a second certification indicating that the default has been cured, § 362(b)(22) shall not apply unless the court orders otherwise after a hearing on the landlord's objection to the debtor's second certification. If the court upholds the landlord's objection, § 362(b)(22) applies immediately, and the clerk must serve on the landlord and the debtor a certified copy of the court's order.

Immediate Application of Exception:
When initially filing the voluntary petition commencing the case, the debtor must indicate on the petition that a judgment for possession exists and must provide on the petition the name and address of the landlord who has obtained the judgment. If the debtor indicates on the petition that a judgment for possession exists but does not file any certification (discussed above), § 362(b)(22) applies immediately, and the clerk must serve on the landlord and the debtor a certified copy of the docket indicating the absence of a filed certification.
 

Exception to Automatic Stay -Endangerment of Property/Illegal Use of Control led Substances

§ 362(b)(23) excepts from the automatic stay an eviction proceeding against a debtor involving residential property based on endangerment of such property or the illegal use of controlled substances on the premises, but only if the landlord files a certification that an eviction has been filed or that the debtor - during the 30 days preceding the filing of the certification - endangered such property or illegally used (or allowed to be used) a controlled substance on the premises.
Section Form Flowchart ECF Event Deadlines Flags
 362(b)(23)
362(m) 		 Lessor Certification
§362(m)(3)(B) Notice		 362(b)(23) bk>misc>Protection of Property from Damage

15 days for debtor to file objection to lessor certification of eviction action
bk>court event>hearing
bk>court events>Certified Copy of Docket Event> If no objection is filed within 15 days

Exception applies 15 days after filing of certification: 
Under § 362(m), § 362(b)(23) applies on the date that is 15 days from the filing of the landlord's certification. However, if the debtor files an objection to the landlord's certification within the 15 days, § 362(b)(23) does not apply unless ordered to apply by the court, in which situation the clerk must serve on the landlord and the debtor a certified copy of the court's order upholding the landlord's certification (and the landlord may proceed with the eviction without first seeking relief from the stay). Furthermore, if the debtor fails to file - within 15 days - an objection to the landlord's certification, § 362(b)(23) applies immediately, and the clerk must serve on the landlord and the debtor a certified copy of the docket indicating the debtor's failure to file.
 

Limit on Automatic Stay for Repeat Filers

30 day limit on automatic stay for filers with one previous case:
Under §362(c)(3),  the automatic stay  terminates on the 30th day after there is a filing in  an individual case under Chapter 7, 11 or 13 within one year  after the prior  case (under any chapter) was dismissed (except for a case refiled in another chapter after a dismissal of a Chapter 7 case based on the means test) 

Party in interest can motion for continuation:
A party in interest (including the debtor) may move to extend the stay and show that the filing is in good faith.  A case is presumed to be in bad faith for this purpose if  more than one case was pending in Chapters 7, 11 or 13 and at least one such case was dismissed for:
(1) failure to file required documents without substantial excuse
(2) failure to provide adequate protection
(3) failure to complete a plan or
(4) there is no showing that the debtor's financial situation has changed so as to allow a final discharge or completion of a plan.

No automatic stay for filers with two or more previous cases:
Under §362(c)(4), the automatic stay does not go into effect at all if an individual had two or more cases filed (under any chapter)  and dismissed  during the prior year until the court so orders after a hearing and demonstration that the filing was made in good faith.  Upon request by a party in interest, the court shall promptly enter an order confirming that no stay is in effect.

Party in interest can motion for continuation:
The same bad faith factors noted above are also applicable to this determination.   

Section
§362(c)(3)/(4)		 Form
 flowchart		 ECF Event
Deadlines Flags
Bk>Motions> Extend the Automatic Stay
Bk>order>Order on Motion to Extend the Automatic Stay
Bk>Court Events>Clerk's Evidence of Repeat Filing

 		Repeat
Bk >Motions> Terminate Automatic Stay
Bk>Motions> Impose Automatic Stay
bk>Order>Order on Motion to Impose on Automatic Stay
Bk>Misc>Debtor's Statement of Good Faith Filing

Fraud - 2 Year Extension of Stay

Under §362(d)(4), if the court finds that the filing of a petition was part of a scheme to delay, hinder, and defraud creditors that involved either
(1) A transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval or
(2) multiple bankruptcy filings affecting such real property --
If recorded in compliance with applicable state laws governing notices or interest or liens in real property, an order entered under paragraph 4  shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of the order by the court, except that a debtor in a subsequent case may move for relief from such order based upon changed circumstances or for good cause shown.
Section
 362(d)(4)		 Form
 ECF Event
 Deadlines
 Flags
 

Automatic Lifting of Stay After 60 Days

Under §362(e)(2), except for fraud (§362(d)(4)), there is an automatic lifting of stay 60 days after party in interest's motion for relief from stay in Chapters 7, 11 or 13 unless a final decision is rendered by the court during the 60-day period or the period is extended by agreement of all parties in interest or by the court for good cause.
Section
 Form
 ECF Event
 Deadlines Flags
 362(e)(2) bk>motion>Motion for Relief from Stay

Failure to File/Comply with Statement of Intent

Under §362(h)(1), the automatic stay terminates if the debtor does not timely file (i.e., within 30 days after the petition date) its Statement of Intent with respect to property subject to a security interest and complies with the stated intention.  The court may extend the stay upon the motion of the trustee if the property is of value to the estate and adequate protection is afforded to the creditor.
Section
 Form
 ECF Event
Deadlines
 		Flags
 362(h)(1) Bk>Trustee>Trustee's Motion to Determine Value of Property

 30 Days Deficient
bk>Order>Order on Trustee's Motion to Determine Value of Property