Once a Chapter 13 bankruptcy petition is filed, the automatic stay goes into effect with the order of relief being entered on the filing date. It’s this automatic stay that prohibits the creditors from taking any further action outside the bankruptcy to collect monies that are owed to them from the debtor. The automatic stay is a wonderful tool to give a debtor breathing room to submit a plan to pay creditors in an orderly manner over time. However, the automatic stay is not bullet proof and can be lifted to allow an individual creditor the right to resume collection activities outside of the bankruptcy case. This loss of the automatic stay can occur when a creditor files a Motion for Relief from the Automatic Stay with the bankruptcy court and there can be several different reasons for a particular creditor to file this motion. Avoiding this “lifting of the automatic stay” is critically important to the success of a Chapter 13 repayment plan.
The first way to avoid the loss of the automatic stay is to keep the Chapter 13 plan payments current and not fall behind on the payments. If a debtor falls behind in payments under the Chapter 13 repayment plan, there is no money coming into the plan to be distributed to the creditors. If the creditor is receiving no money through the Chapter 13 plan, this can lead to the creditor filing the Motion for Relief from the Automatic Stay, in effect telling the bankruptcy court “we are not receiving money from the repayment plan, as proposed, so lift the automatic stay so we can actively pursue the debtor outside of the bankruptcy for the money that is owed to us.”
The second way to avoid the loss of the automatic stay is for the debtor to keep the regularly monthly mortgage payment current on his or her home. In a Chapter 13, if the debtor owes a mortgage on his or her home, the regular payments that come due each month after the bankruptcy case is filed must continue to be paid. If these ongoing monthly mortgage payments are not paid, the mortgage creditor will file a Motion for Relief from the Automatic Stay, asking the bankruptcy court to lift the automatic stay so it may begin taking steps to foreclosure against the home. An experienced bankruptcy attorney can often work out an agreement with the mortgage company to keep the stay from being lifted. However, doing so will most likely result in significant additional cost for the debtor by having to pay the mortgage creditor’s attorney fees and filing fee costs in filing the motion. These costs can sometimes range from $500 to $1000 in additional expense which the debtor will be responsible to pay. So keeping current on monthly mortgage payments that come due after the filing of a Chapter 13 bankruptcy petition is critically important – not just to save the home but to also keep from having to pay the additional expense of attorney’s fees and court costs.
The third way to avoid the loss of the automatic stay is to keep insurance coverage on homes and vehicles. If there is money owed on a home or car, the original contract with the creditor requires that insurance coverage be maintained in case the home or car is damaged. If this insurance coverage is not maintained while in the Chapter 13, the creditor can file the Motion for Relief from the Automatic Stay in order to take back the home or vehicle from the debtor.
These are the three primary reasons that will cause a creditor to seek to lift the automatic stay in a Chapter 13 case. If you are considering a filing for bankruptcy relief and wish to consult with a qualified bankruptcy attorney about your options, please contact one of our locations nearest you in Alabama, Mississippi or Tennessee for a free, confidential consultation.