U.S. Bankruptcy Code imposes something called an automatic stay the moment that a petition for bankruptcy is filed. The automatic stay will usually halt the commencement, enforcement or appeal of actions and judgments against a debtor from the creditors they owe money to that are attempting to collect these debts incurred prior to the bankruptcy petition. In addition, the automatic stay protects property of the bankruptcy estate itself from collection actions and proceedings.
If a creditor violates the automatic stay their actions are voided out. Any violation of the stay might cause the violating party to have damages assessed to them. But, like every complicated law, there are exceptions. A creditor might be allowed to take their collateral if they obtain permission from the court first. They’ll get this by filing a motion for relief from the automatic stay.
The court will either grant the motion or provide security to the creditor, ensuring that the value of their collateral won’t decrease during the stay. Without the protection of the automatic stay creditors could hypothetically race to the courthouse in order to improve their positions against a debtor. If this happened, and let’s say that a debtor’s business was facing just a temporary crunch, it might not survive a “run” by creditors when their business could otherwise be salvaged. A run may also result in waste and it might be unfair to similar creditors that are owed money too.
There are three kinds of avoidance actions, and all of these try to cut down on the risk of the legal system encouraging the downfall of a debtor who is financially unstable and who hasn’t declared bankruptcy yet. The bankruptcy system will usually reward creditors who continue extending financing to debtors and will discourage creditors from ramping up their debt collection efforts.
Even though these rules seem simple, a few exceptions exist in each category of avoidance action.
Mallory McGuinness works for a debt collection company. She also writes articles on business, finance, consumer spending, and collection agencies. You are welcome to reprint this article – but get your own unique content version here.