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The Automatic Stay
The automatic stay provides for a
period of time in which all judgments,
collection activities, foreclosures, and
repossessions of property are suspended
and may not be pursued by the
creditors on any debt or claim that
arose before the filing of the bankruptcy
petition.
As with cases under
other chapters of the Bankruptcy
Code, a stay of creditor actions
against the debtor automatically goes
into effect when the bankruptcy petition
is filed. 11 U.S.C. § 362(a). The
filing of a petition, however, does not
operate as a stay for certain types
of actions listed under 11 U.S.C.
§ 362(b). The stay provides a breathing
spell for the debtor, during which
negotiations can take place to try to
resolve the difficulties in the debtor's
financial situation.
Under specific circumstances, the
secured creditor can obtain an order
from the court granting relief from the
automatic stay. For example, when the
debtor has no equity in the property
and that property is not necessary for
an effective reorganization, the secured
creditor can seek an order of the court
lifting the stay to permit the creditor to
foreclose on the property, sell it, and
apply the proceeds to the debt.
11 U.S.C. § 362(d).
It should be noted that, although
creditors are stayed from action
against the debtor unless relief is granted
by the court, section 331 of the
Bankruptcy Code permits applications
for fees to be made by certain professionals
during the case. Thus, a trustee,
a debtor's attorney, or any professional
person appointed by the court may
apply to the court at intervals of 120
days for interim compensation and
reimbursement payments. In very large
cases with extensive legal work the
court may permit more frequent applications.
Although professional fees
may be paid pursuant to authorization
by the court, the debtor cannot make
payments to professional creditors on
prepetition obligations, i.e., obligations
which arose before the filing of
the bankruptcy petition. The ordinary
expenses of the ongoing business, however,
continue to be paid.
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