§ 58.1     Usual Protections
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 58.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Section 362 of the Bankruptcy Code applies with full force in Chapter 13 cases. The filing of a Chapter 13 petition operates as a stay of all debt collection efforts, all court proceedings involving the debtor or property of the estate,1 all efforts to repossess property and all acts to perfect or enforce liens.2 Debt collection actions after the filing of a Chapter 13 petition subject the creditor to sanctions, and any action taken in violation of the stay is void or at least voidable.3 There is nothing specific to Chapter 13 that limits the ordinary effect of the automatic stay under 11 U.S.C. § 362; in fact, the broader definition of property of the estate in Chapter 13 cases enlarges the protection of the automatic stay in Chapter 13 cases.4

[2]

The statutory exceptions to the automatic stay in § 362(b) apply in Chapter 13 cases.5

[3]

The automatic stay becomes effective in a Chapter 13 case upon the filing of the petition. It has been held that the automatic stay arises at the moment the Chapter 13 petition is filed but is not effective earlier on the same day.6 Because a Chapter 13 petition is “filed” when received by the bankruptcy court,7 the automatic stay does not arise when the petition was mailed to the bankruptcy court but never received by the clerk.8

[4]

There is some disagreement whether the automatic stay arises on the filing of a Chapter 13 petition by an individual who is not eligible for Chapter 13.9 The stay is effective even if debtor’s counsel fails to file the attorney’s affidavit or the clerk’s affidavit required by the 1984 bankruptcy amendments.10


 

1  See §§ 45.1 [ What Is Property of the Chapter 13 Estate? ] § 46.1  What Is Property of the Chapter 13 Estate?47.8 [ Miscellaneous Real and Personal Property ] § 46.12  Miscellaneous Real and Personal Property.

 

2  11 U.S.C. § 362(a). See, e.g., In re Garcia, 276 B.R. 627 (Bankr. D. Ariz. 2002) (Automatic stay precludes mortgage holder from exercising contract right to accelerate debt until the stay expires or relief from the stay is granted.).

 

3  See § 78.1 [ Remedies for Violation of Stay ] § 62.5  Remedies for Violation of Stay.

 

4  See § 68.2 [ Additional Protection for Postpetition Property and Income ] § 58.3  Additional Protection for Postpetition Property and Income.

 

5  See § 58.5  Alimony and Support Exception, § 58.6  Domestic Support Obligation Exception after BAPCPA§ 58.7  Criminal Action or Proceeding Exception§ 58.8  Police and Regulatory Power Exception§ 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA, § 58.10  Pension Loans Exception after BAPCPA and § 58.11  Miscellaneous New Stays and Exceptions after BAPCPA.  See, e.g., In re Larsen, 232 B.R. 482 (Bankr. D. Wyo. 1998) (IRS did not violate automatic stay because exception in § 362(b)(9) permits an audit, assessment or notice of deficiency.).

 

6  See McLouth v. Advanta Mortgage Corp. (In re McLouth), 268 B.R. 244 (D. Mont. 2001) (Rejecting “unified day” theory, automatic stay arose at 4:59 p.m. when the Chapter 13 petition was filed; stay was not in effect at 11:00 a .m. when foreclosure sale occurred.).

 

7  See § 38.2 [ Time for Filing Schedules, Statement of Financial Affairs, Plan and Other Documents ] § 37.4  Time for Filing Schedules, Statement of Financial Affairs, Plan and Other Documents.

 

8  In re Delong, No. 03-74355, 2003 WL 22989682 (Bankr. C.D. Ill. Dec. 16, 2003) (unpublished) (Automatic stay arose when hand-delivered petition was received by the bankruptcy court at 10:24 a.m. on September 17, and foreclosure sale at 9:30 a.m. that same day divested debtor of all interest in the real property; petition mailed on September 12, but never received by the court, was not filed, did not commence a case and never invoked the automatic stay.).

 

9  See § 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?.

 

10  In re Bryant, 51 B.R. 729 (Bankr. N.D. Miss. 1985). See § 34.2 [ Petition, Signed by the Debtor ] § 36.2  Petition, Signed by Debtor—“Wet” Signature Issues.