Regardless of whether you file Bankruptcy under Chapter 7 or Chapter 13 you will be protected by what they call the “Automatic Stay” while your case is open. I like to tell clients that this is like the Court putting a big wall around you to protect you from creditors trying to collect on their debts. It stops all collection activity, including any phone calls, letters, lawsuits, foreclosures, etc.
The “Automatic Stay”:
- Occurs immediately upon the filing of the case
- Stops all collection activities, including:
- Foreclosures and Repossessions
- Letters and Emails
- Phone Calls
- Creditors Who Continue to Try to Collect Can be Punished by the Court
- Judges can award money to the debtor, including attorney’s fees and costs when a creditor violates the automatic stay
- It is important to document any contact by a creditor; or payments withdrawn by the creditor from your bank after we file so that your attorney can act on your behalf
One of the most powerful uses of the Automatic Stay is to stop foreclosures. If your house is scheduled for foreclosure, you should contact a bankruptcy attorney as soon as possible. If you can file for bankruptcy prior to the time of the foreclosure sale, then the foreclosure will be stopped immediately. This can be a very effective tool to help save your home.
There are certain exceptions which can reduce the time period of the Automatic Stay. These usually only apply to people who have filed for bankruptcy more than once in the last year just to take advantage of the Automatic Stay, and then failed to follow through and the cases were dismissed. This exception can be overcome, if the debtor is able to demonstrate that the current bankruptcy filing was made in good faith. Also, under certain limited circumstances, a creditor can seek permission from the Bankruptcy Court to allow them to continue with their collection activities. While any creditor can attempt this, it is most commonly used by mortgage holders and secured loan holders (i.e., car loans, etc.) to seek repossession or foreclosure of property for which the debtor continues to fail to make the required payments.
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