Section 362 of the United States Bankruptcy Code governs the functions, availability, and duration of the automatic stay. Simply put, it stops all judicial proceedings against the debtor. Functionally, the stay freezes a debtor’s assets immediately as of the date of filing, preventing individual creditors from picking away at them for their own benefits and to the detriment of the ultimate goal of the bankruptcy.
In Chapter 7 liquidation cases, the stay guarantees the protection of the debtor’s property or equity therein, both so it can be exempted to provide a fresh start and so nonexempt property can be fairly distributed to creditors. In Chapter 13, the stay ensures protection of property that may be necessary not only for the debtor’s fresh start but also for the success of the debtor’s plan.
Along with other provisions governing property of the estate, the stay permits the bankruptcy court to deal with all aspects of the debtor’s situation in an orderly manner. It prevents, at least until such time as the bankruptcy court allows, other courts and parties from interfering with or complicating the bankruptcy process.
Virtually all activity concerning the debtor and the debtor’s property thus comes into a single forum to be handled in accordance with the (usually) overriding purposes of the bankruptcy. If you have any question as to how the automatic stay maybe implemented in your particular case, contact a Fort. Lauderdale Bankruptcy Lawyer.
Will it help me stop foreclosure of my house? Yes, the automatic stay will help you stop foreclosure. As the real property is part of a debtor’s bankruptcy estate once the case is filed, the automatic stay will suspend all judicial proceedings against the real property.
In order to stop the foreclosure sale, the bankruptcy case must be filed at least one day prior to the foreclosure sale, and notice must be given to all parties of the foreclosure case, including the state court where the sale is pending, the day before the scheduled sale.
Will it stop garnishment of wages? Yes, the automatic stay will stop garnishment of wages once your bankruptcy case has commenced. The automatic stay only prevents the commencement and stops the continuance and/or execution of judicial proceedings, it will not, however, recover the wages that have already been garnished in the past if it was done in accordance with a judicial decree.
