11 U.S.C. § 362 — Automatic stay

Page 76 TITLE 11—BANKRUPTCY § 362 HOUSE REPORT NO. 95–595 The section specifies four means of providing ade- quate protection. They are neither exclusive nor ex- haustive. They all rely, however, on the value of the protected entity’s interest in the property involved. The section does not specify how value is to be deter- mined, nor does it specify when it is to be determined. These matters are left to case-by-case interpretation and development. It is expected that the courts will apply the concept in light of facts of each case and gen- eral equitable principles. It is not intended that the courts will develop a hard and fast rule that will apply in every case. The time and method of valuation is not specified precisely, in order to avoid that result. There are an infinite number of variations possible in deal- ings between debtors and creditors, the law is contin- ually developing, and new ideas are continually being implemented in this field. The flexibility is important to permit the courts to adapt to varying circumstances and changing modes of financing. Neither is it expected that the courts will construe the term value to mean, in every case, forced sale liq- uidation value or full going concern value. There is wide latitude between those two extremes. In any par- ticular case, especially a reorganization case, the de- termination of which entity should be entitled to the difference between the going concern value and the liq- uidation value must be based on equitable consider- ations based on the facts of the case. It will frequently be based on negotiation between the parties. Only if they cannot agree will the court become involved. The first method of adequate protection specified is periodic cash payments by the estate, to the extent of a decrease in value of the opposing entity’s interest in the property involved. This provision is derived from In re Yale Express, Inc., 384 F.2d 990 (2d Cir. 1967) (though in that case it is not clear whether the payments re- quired were adequate to compensate the secured credi- tors for their loss). The use of periodic payments may be appropriate, where for example, the property in question is depreciating at a relatively fixed rate. The periodic payments would be to compensate for the de- preciation. The second method is the provision of an additional or replacement lien on other property to the extent of the decrease in value of the property involved. The pur- pose of this method is to provide the protected entity with a means of realizing the value of the original prop- erty, if it should decline during the case, by granting an interest in additional property from whose value the entity may realize its loss. The third method is the granting of an administra- tive expense priority to the protected entity to the ex- tent of his loss. This method, more than the others, re- quires a prediction as to whether the unencumbered as- sets that will remain if the case if converted from reor- ganization to liquidation will be sufficient to pay the protected entity in full. It is clearly the most risky, from the entity’s perspective, and should be used only when there is relative certainty that administrative ex- penses will be able to be paid in full in the event of liq- uidation. The fourth [enacted as third] method gives the par- ties and the courts flexibility by allowing such other relief as will result in the realization by the protected entity of the value of its interest in the property in- volved. Under this provision, the courts will be able to adapt to new methods of financing and to formulate protection that is appropriate to the circumstances of the case if none of the other methods would accomplish the desired result. For example, another form of ade- quate protection might be the guarantee by a third party outside the judicial process of compensation for any loss incurred in the case. Adequate protection might also, in some circumstances, be provided by per- mitting a secured creditor to bid in his claim at the sale of the property and to offset the claim against the price bid in. The paragraph also defines, more clearly than the others, the general concept of adequate protection, by requiring such relief as will result in the realization of value. It is the general category, and as such, is defined by the concept involved rather than any particular method of adequate protection. Editorial Notes AMENDMENTS 1984—Par. (1). Pub. L. 98–353 inserted ‘‘a cash payment or’’ after ‘‘make’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 362. Automatic stay (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protec- tion Act of 1970, operates as a stay, applicable to all entities, of— (1) the commencement or continuation, in- cluding the issuance or employment of proc- ess, of a judicial, administrative, or other ac- tion or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; (7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and (8) the commencement or continuation of a proceeding before the United States Tax Court concerning a tax liability of a debtor that is a corporation for a taxable period the bank- ruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title. (b) The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay— (1) under subsection (a) of this section, of the commencement or continuation of a crimi- nal action or proceeding against the debtor; Page 77 TITLE 11—BANKRUPTCY § 362 (2) under subsection (a)— (A) of the commencement or continuation of a civil action or proceeding— (i) for the establishment of paternity; (ii) for the establishment or modification of an order for domestic support obliga- tions; (iii) concerning child custody or visita- tion; (iv) for the dissolution of a marriage, ex- cept to the extent that such proceeding seeks to determine the division of property that is property of the estate; or (v) regarding domestic violence; (B) of the collection of a domestic support obligation from property that is not prop- erty of the estate; (C) with respect to the withholding of in- come that is property of the estate or prop- erty of the debtor for payment of a domestic support obligation under a judicial or ad- ministrative order or a statute; (D) of the withholding, suspension, or re- striction of a driver’s license, a professional or occupational license, or a recreational li- cense, under State law, as specified in sec- tion 466(a)(16) of the Social Security Act; (E) of the reporting of overdue support owed by a parent to any consumer reporting agency as specified in section 466(a)(7) of the Social Security Act; (F) of the interception of a tax refund, as specified in sections 464 and 466(a)(3) of the Social Security Act or under an analogous State law; or (G) of the enforcement of a medical obliga- tion, as specified under title IV of the Social Security Act; (3) under subsection (a) of this section, of any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title or to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title; (4) under paragraph (1), (2), (3), or (6) of sub- section (a) of this section, of the commence- ment or continuation of an action or pro- ceeding by a governmental unit or any organi- zation exercising authority under the Conven- tion on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on January 13, 1993, to enforce such governmental unit’s or organization’s police and regulatory power, including the enforce- ment of a judgment other than a money judg- ment, obtained in an action or proceeding by the governmental unit to enforce such govern- mental unit’s or organization’s police or regu- latory power; [(5) Repealed. Pub. L. 105–277, div. I, title VI, § 603(1), Oct. 21, 1998, 112 Stat. 2681–866;] (6) under subsection (a) of this section, of the exercise by a commodity broker, forward contract merchant, stockbroker, financial in- stitution, financial participant, or securities clearing agency of any contractual right (as defined in section 555 or 556) under any secu- rity agreement or arrangement or other credit enhancement forming a part of or related to any commodity contract, forward contract or securities contract, or of any contractual right (as defined in section 555 or 556) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such contracts, including any master agreement for such contracts; (7) under subsection (a) of this section, of the exercise by a repo participant or financial participant of any contractual right (as de- fined in section 559) under any security agree- ment or arrangement or other credit enhance- ment forming a part of or related to any re- purchase agreement, or of any contractual right (as defined in section 559) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such agreements, including any master agreement for such agreements; (8) under subsection (a) of this section, of the commencement of any action by the Sec- retary of Housing and Urban Development to foreclose a mortgage or deed of trust in any case in which the mortgage or deed of trust held by the Secretary is insured or was for- merly insured under the National Housing Act and covers property, or combinations of prop- erty, consisting of five or more living units; (9) under subsection (a), of— (A) an audit by a governmental unit to de- termine tax liability; (B) the issuance to the debtor by a govern- mental unit of a notice of tax deficiency; (C) a demand for tax returns; or (D) the making of an assessment for any tax and issuance of a notice and demand for payment of such an assessment (but any tax lien that would otherwise attach to property of the estate by reason of such an assess- ment shall not take effect unless such tax is a debt of the debtor that will not be dis- charged in the case and such property or its proceeds are transferred out of the estate to, or otherwise revested in, the debtor). (10) under subsection (a) of this section, of any act by a lessor to the debtor under a lease of nonresidential real property that has termi- nated by the expiration of the stated term of the lease before the commencement of or dur- ing a case under this title to obtain possession of such property; (11) under subsection (a) of this section, of the presentment of a negotiable instrument and the giving of notice of and protesting dis- honor of such an instrument; (12) under subsection (a) of this section, after the date which is 90 days after the filing of such petition, of the commencement or con- tinuation, and conclusion to the entry of final judgment, of an action which involves a debtor subject to reorganization pursuant to chapter 11 of this title and which was brought by the Secretary of Transportation under section 31325 of title 46 (including distribution of any proceeds of sale) to foreclose a preferred ship or fleet mortgage, or a security interest in or relating to a vessel or vessel under construc- Page 78 TITLE 11—BANKRUPTCY § 362 tion, held by the Secretary of Transportation under chapter 537 of title 46 or section 109(h) of title 49, or under applicable State law; (13) under subsection (a) of this section, after the date which is 90 days after the filing of such petition, of the commencement or con- tinuation, and conclusion to the entry of final judgment, of an action which involves a debtor subject to reorganization pursuant to chapter 11 of this title and which was brought by the Secretary of Commerce under section 31325 of title 46 (including distribution of any proceeds of sale) to foreclose a preferred ship or fleet mortgage in a vessel or a mortgage, deed of trust, or other security interest in a fishing fa- cility held by the Secretary of Commerce under chapter 537 of title 46; (14) under subsection (a) of this section, of any action by an accrediting agency regarding the accreditation status of the debtor as an educational institution; (15) under subsection (a) of this section, of any action by a State licensing body regarding the licensure of the debtor as an educational institution; (16) under subsection (a) of this section, of any action by a guaranty agency, as defined in section 435(j) of the Higher Education Act of 1965 or the Secretary of Education regarding the eligibility of the debtor to participate in programs authorized under such Act; (17) under subsection (a) of this section, of the exercise by a swap participant or financial participant of any contractual right (as de- fined in section 560) under any security agree- ment or arrangement or other credit enhance- ment forming a part of or related to any swap agreement, or of any contractual right (as de- fined in section 560) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connec- tion with 1 or more such agreements, includ- ing any master agreement for such agree- ments; (18) under subsection (a) of the creation or perfection of a statutory lien for an ad valo- rem property tax, or a special tax or special assessment on real property whether or not ad valorem, imposed by a governmental unit, if such tax or assessment comes due after the date of the filing of the petition; (19) under subsection (a), of withholding of income from a debtor’s wages and collection of amounts withheld, under the debtor’s agree- ment authorizing that withholding and collec- tion for the benefit of a pension, profit-shar- ing, stock bonus, or other plan established under section 401, 403, 408, 408A, 414, 457, or 501(c) of the Internal Revenue Code of 1986, that is sponsored by the employer of the debt- or, or an affiliate, successor, or predecessor of such employer— (A) to the extent that the amounts with- held and collected are used solely for pay- ments relating to a loan from a plan under section 408(b)(1) of the Employee Retirement Income Security Act of 1974 or is subject to section 72(p) of the Internal Revenue Code of 1986; or (B) a loan from a thrift savings plan per- mitted under subchapter III of chapter 84 of title 5, that satisfies the requirements of section 8433(g) of such title; but nothing in this paragraph may be con- strued to provide that any loan made under a governmental plan under section 414(d), or a contract or account under section 403(b), of the Internal Revenue Code of 1986 constitutes a claim or a debt under this title; (20) under subsection (a), of any act to en- force any lien against or security interest in real property following entry of the order under subsection (d)(4) as to such real property in any prior case under this title, for a period of 2 years after the date of the entry of such an order, except that the debtor, in a subse- quent case under this title, may move for re- lief from such order based upon changed cir- cumstances or for other good cause shown, after notice and a hearing; (21) under subsection (a), of any act to en- force any lien against or security interest in real property— (A) if the debtor is ineligible under section 109(g) to be a debtor in a case under this title; or (B) if the case under this title was filed in violation of a bankruptcy court order in a prior case under this title prohibiting the debtor from being a debtor in another case under this title; (22) subject to subsection (l), under sub- section (a)(3), of the continuation of any evic- tion, unlawful detainer action, or similar pro- ceeding by a lessor against a debtor involving residential property in which the debtor re- sides as a tenant under a lease or rental agree- ment and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for posses- sion of such property against the debtor; (23) subject to subsection (m), under sub- section (a)(3), of an eviction action that seeks possession of the residential property in which the debtor resides as a tenant under a lease or rental agreement based on endangerment of such property or the illegal use of controlled substances on such property, but only if the lessor files with the court, and serves upon the debtor, a certification under penalty of per- jury that such an eviction action has been filed, or that the debtor, during the 30-day pe- riod preceding the date of the filing of the cer- tification, has endangered property or ille- gally used or allowed to be used a controlled substance on the property; (24) under subsection (a), of any transfer that is not avoidable under section 544 and that is not avoidable under section 549; (25) under subsection (a), of— (A) the commencement or continuation of an investigation or action by a securities self regulatory organization to enforce such organization’s regulatory power; (B) the enforcement of an order or deci- sion, other than for monetary sanctions, ob- tained in an action by such securities self regulatory organization to enforce such or- ganization’s regulatory power; or (C) any act taken by such securities self regulatory organization to delist, delete, or Page 79 TITLE 11—BANKRUPTCY § 362 refuse to permit quotation of any stock that does not meet applicable regulatory require- ments; (26) under subsection (a), of the setoff under applicable nonbankruptcy law of an income tax refund, by a governmental unit, with re- spect to a taxable period that ended before the date of the order for relief against an income tax liability for a taxable period that also ended before the date of the order for relief, except that in any case in which the setoff of an income tax refund is not permitted under applicable nonbankruptcy law because of a pending action to determine the amount or le- gality of a tax liability, the governmental unit may hold the refund pending the resolution of the action, unless the court, on the motion of the trustee and after notice and a hearing, grants the taxing authority adequate protec- tion (within the meaning of section 361) for the secured claim of such authority in the setoff under section 506(a); (27) under subsection (a) of this section, of the exercise by a master netting agreement participant of any contractual right (as de- fined in section 555, 556, 559, or 560) under any security agreement or arrangement or other credit enhancement forming a part of or re- lated to any master netting agreement, or of any contractual right (as defined in section 555, 556, 559, or 560) to offset or net out any ter- mination value, payment amount, or other transfer obligation arising under or in connec- tion with 1 or more such master netting agree- ments to the extent that such participant is eligible to exercise such rights under para- graph (6), (7), or (17) for each individual con- tract covered by the master netting agree- ment in issue; (28) under subsection (a), of the exclusion by the Secretary of Health and Human Services of the debtor from participation in the medi- care program or any other Federal health care program (as defined in section 1128B(f) of the Social Security Act pursuant to title XI or XVIII of such Act); and (29) under subsection (a)(1) of this section, of any action by— (A) an amateur sports organization, as de- fined in section 220501(b) of title 36, to re- place a national governing body, as defined in that section, under section 220528 of that title; or (B) the corporation, as defined in section 220501(b) of title 36, to revoke the certifi- cation of a national governing body, as de- fined in that section, under section 220521 of that title. The provisions of paragraphs (12) and (13) of this subsection shall apply with respect to any such petition filed on or before December 31, 1989. (c) Except as provided in subsections (d), (e), (f), and (h) of this section— (1) the stay of an act against property of the estate under subsection (a) of this section con- tinues until such property is no longer prop- erty of the estate; (2) the stay of any other act under sub- section (a) of this section continues until the earliest of— (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied; (3) if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)— (A) the stay under subsection (a) with re- spect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with re- spect to the debtor on the 30th day after the filing of the later case; (B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limi- tations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the fil- ing of the later case is in good faith as to the creditors to be stayed; and (C) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (i) as to all creditors, if— (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the in- dividual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chap- ters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or neg- ligence shall not be a substantial ex- cuse unless the dismissal was caused by the negligence of the debtor’s attor- ney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan con- firmed by the court; or (III) there has not been a substantial change in the financial or personal af- fairs of the debtor since the dismissal of the next most previous case under chap- ter 7, 11, or 13 or any other reason to con- clude that the later case will be con- cluded— (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a pre- Page 80 TITLE 11—BANKRUPTCY § 362 vious case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, condi- tioning, or limiting the stay as to actions of such creditor; and (4)(A)(i) if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case; and (ii) on request of a party in interest, the court shall promptly enter an order con- firming that no stay is in effect; (B) if, within 30 days after the filing of the later case, a party in interest requests the court may order the stay to take effect in the case as to any or all creditors (subject to such conditions or limitations as the court may im- pose), after notice and a hearing, only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; (C) a stay imposed under subparagraph (B) shall be effective on the date of the entry of the order allowing the stay to go into effect; and (D) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (i) as to all creditors if— (I) 2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period; (II) a previous case under this title in which the individual was a debtor was dis- missed within the time period stated in this paragraph after the debtor failed to file or amend the petition or other docu- ments as required by this title or the court without substantial excuse (but mere inad- vertence or negligence shall not be sub- stantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney), failed to provide adequate pro- tection as ordered by the court, or failed to perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under this title, or any other reason to conclude that the later case will not be concluded, if a case under chapter 7, with a discharge, and if a case under chapter 11 or 13, with a con- firmed plan that will be fully performed; or (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, such action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to such action of such creditor. (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; (2) with respect to a stay of an act against property under subsection (a) of this section, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an ef- fective reorganization; (3) with respect to a stay of an act against single asset real estate under subsection (a), by a creditor whose claim is secured by an in- terest in such real estate, unless, not later than the date that is 90 days after the entry of the order for relief (or such later date as the court may determine for cause by order en- tered within that 90-day period) or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later— (A) the debtor has filed a plan of reorga- nization that has a reasonable possibility of being confirmed within a reasonable time; or (B) the debtor has commenced monthly payments that— (i) may, in the debtor’s sole discretion, notwithstanding section 363(c)(2), be made from rents or other income generated be- fore, on, or after the date of the com- mencement of the case by or from the property to each creditor whose claim is secured by such real estate (other than a claim secured by a judgment lien or by an unmatured statutory lien); and (ii) are in an amount equal to interest at the then applicable nondefault contract rate of interest on the value of the credi- tor’s interest in the real estate; or (4) with respect to a stay of an act against real property under subsection (a), by a cred- itor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scheme to delay, hinder, or defraud creditors that in- volved either— (A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or (B) multiple bankruptcy filings affecting such real property. If recorded in compliance with applicable State laws governing notices of interests or liens in real property, an order entered under paragraph (4) shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of such order by the court, except that a debtor in a subsequent case under this title may move for relief from such order based upon changed circumstances or for good cause shown, after notice and a hearing. Any Federal, State, or local governmental unit that accepts notices of interests or liens in real property shall accept any certified copy of an order described in this subsection for indexing and recording. Page 81 TITLE 11—BANKRUPTCY § 362 (e)(1) Thirty days after a request under sub- section (d) of this section for relief from the stay of any act against property of the estate under subsection (a) of this section, such stay is terminated with respect to the party in interest making such request, unless the court, after no- tice and a hearing, orders such stay continued in effect pending the conclusion of, or as a result of, a final hearing and determination under sub- section (d) of this section. A hearing under this subsection may be a preliminary hearing, or may be consolidated with the final hearing under subsection (d) of this section. The court shall order such stay continued in effect pending the conclusion of the final hearing under sub- section (d) of this section if there is a reasonable likelihood that the party opposing relief from such stay will prevail at the conclusion of such final hearing. If the hearing under this sub- section is a preliminary hearing, then such final hearing shall be concluded not later than thirty days after the conclusion of such preliminary hearing, unless the 30-day period is extended with the consent of the parties in interest or for a specific time which the court finds is required by compelling circumstances. (2) Notwithstanding paragraph (1), in a case under chapter 7, 11, or 13 in which the debtor is an individual, the stay under subsection (a) shall terminate on the date that is 60 days after a request is made by a party in interest under subsection (d), unless— (A) a final decision is rendered by the court during the 60-day period beginning on the date of the request; or (B) such 60-day period is extended— (i) by agreement of all parties in interest; or (ii) by the court for such specific period of time as the court finds is required for good cause, as described in findings made by the court. (f) Upon request of a party in interest, the court, with or without a hearing, shall grant such relief from the stay provided under sub- section (a) of this section as is necessary to pre- vent irreparable damage to the interest of an en- tity in property, if such interest will suffer such damage before there is an opportunity for notice and a hearing under subsection (d) or (e) of this section. (g) In any hearing under subsection (d) or (e) of this section concerning relief from the stay of any act under subsection (a) of this section— (1) the party requesting such relief has the burden of proof on the issue of the debtor’s eq- uity in property; and (2) the party opposing such relief has the burden of proof on all other issues. (h)(1) In a case in which the debtor is an indi- vidual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)— (A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either sur- render such personal property or retain it and, if retaining such personal property, either re- deem such personal property pursuant to sec- tion 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or as- sume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applica- ble; and (B) to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, un- less such statement specifies the debtor’s in- tention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms. (2) Paragraph (1) does not apply if the court determines, on the motion of the trustee filed before the expiration of the applicable time set by section 521(a)(2), after notice and a hearing, that such personal property is of consequential value or benefit to the estate, and orders appro- priate adequate protection of the creditor’s in- terest, and orders the debtor to deliver any col- lateral in the debtor’s possession to the trustee. If the court does not so determine, the stay pro- vided by subsection (a) shall terminate upon the conclusion of the hearing on the motion. (i) If a case commenced under chapter 7, 11, or 13 is dismissed due to the creation of a debt re- payment plan, for purposes of subsection (c)(3), any subsequent case commenced by the debtor under any such chapter shall not be presumed to be filed not in good faith. (j) On request of a party in interest, the court shall issue an order under subsection (c) con- firming that the automatic stay has been termi- nated. (k)(1) Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover ac- tual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may re- cover punitive damages. (2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recov- ery under paragraph (1) of this subsection against such entity shall be limited to actual damages. (l)(1) Except as otherwise provided in this sub- section, subsection (b)(22) shall apply on the date that is 30 days after the date on which the bankruptcy petition is filed, if the debtor files with the petition and serves upon the lessor a certification under penalty of perjury that— (A) under nonbankruptcy law applicable in the jurisdiction, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment for possession was entered; and (B) the debtor (or an adult dependent of the debtor) has deposited with the clerk of the court, any rent that would become due during the 30-day period after the filing of the bank- ruptcy petition. (2) If, within the 30-day period after the filing of the bankruptcy petition, the debtor (or an Page 82 TITLE 11—BANKRUPTCY § 362 adult dependent of the debtor) complies with paragraph (1) and files with the court and serves upon the lessor a further certification under penalty of perjury that the debtor (or an adult dependent of the debtor) has cured, under non- bankruptcy law applicable in the jurisdiction, the entire monetary default that gave rise to the judgment under which possession is sought by the lessor, subsection (b)(22) shall not apply, unless ordered to apply by the court under para- graph (3). (3)(A) If the lessor files an objection to any certification filed by the debtor under paragraph (1) or (2), and serves such objection upon the debtor, the court shall hold a hearing within 10 days after the filing and service of such objec- tion to determine if the certification filed by the debtor under paragraph (1) or (2) is true. (B) If the court upholds the objection of the lessor filed under subparagraph (A)— (i) subsection (b)(22) shall apply immediately and relief from the stay provided under sub- section (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property; and (ii) the clerk of the court shall immediately serve upon the lessor and the debtor a cer- tified copy of the court’s order upholding the lessor’s objection. (4) If a debtor, in accordance with paragraph (5), indicates on the petition that there was a judgment for possession of the residential rental property in which the debtor resides and does not file a certification under paragraph (1) or (2)— (A) subsection (b)(22) shall apply imme- diately upon failure to file such certification, and relief from the stay provided under sub- section (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property; and (B) the clerk of the court shall immediately serve upon the lessor and the debtor a cer- tified copy of the docket indicating the ab- sence of a filed certification and the applica- bility of the exception to the stay under sub- section (b)(22). (5)(A) Where a judgment for possession of resi- dential property in which the debtor resides as a tenant under a lease or rental agreement has been obtained by the lessor, the debtor shall so indicate on the bankruptcy petition and shall provide the name and address of the lessor that obtained that pre-petition judgment on the peti- tion and on any certification filed under this subsection. (B) The form of certification filed with the pe- tition, as specified in this subsection, shall pro- vide for the debtor to certify, and the debtor shall certify— (i) whether a judgment for possession of resi- dential rental housing in which the debtor re- sides has been obtained against the debtor be- fore the date of the filing of the petition; and (ii) whether the debtor is claiming under paragraph (1) that under nonbankruptcy law applicable in the jurisdiction, there are cir- cumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment of possession was entered, and has made the appropriate deposit with the court. (C) The standard forms (electronic and other- wise) used in a bankruptcy proceeding shall be amended to reflect the requirements of this sub- section. (D) The clerk of the court shall arrange for the prompt transmittal of the rent deposited in ac- cordance with paragraph (1)(B) to the lessor. (m)(1) Except as otherwise provided in this subsection, subsection (b)(23) shall apply on the date that is 15 days after the date on which the lessor files and serves a certification described in subsection (b)(23). (2)(A) If the debtor files with the court an ob- jection to the truth or legal sufficiency of the certification described in subsection (b)(23) and serves such objection upon the lessor, subsection (b)(23) shall not apply, unless ordered to apply by the court under this subsection. (B) If the debtor files and serves the objection under subparagraph (A), the court shall hold a hearing within 10 days after the filing and serv- ice of such objection to determine if the situa- tion giving rise to the lessor’s certification under paragraph (1) existed or has been rem- edied. (C) If the debtor can demonstrate to the satis- faction of the court that the situation giving rise to the lessor’s certification under paragraph (1) did not exist or has been remedied, the stay provided under subsection (a)(3) shall remain in effect until the termination of the stay under this section. (D) If the debtor cannot demonstrate to the satisfaction of the court that the situation giv- ing rise to the lessor’s certification under para- graph (1) did not exist or has been remedied— (i) relief from the stay provided under sub- section (a)(3) shall not be required to enable the lessor to proceed with the eviction; and (ii) the clerk of the court shall immediately serve upon the lessor and the debtor a cer- tified copy of the court’s order upholding the lessor’s certification. (3) If the debtor fails to file, within 15 days, an objection under paragraph (2)(A)— (A) subsection (b)(23) shall apply imme- diately upon such failure and relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property; and (B) the clerk of the court shall immediately serve upon the lessor and the debtor a cer- tified copy of the docket indicating such fail- ure. (n)(1) Except as provided in paragraph (2), sub- section (a) does not apply in a case in which the debtor— (A) is a debtor in a small business case pend- ing at the time the petition is filed; (B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period ending on the date of the order for relief entered with respect to the petition; (C) was a debtor in a small business case in which a plan was confirmed in the 2-year pe- Page 83 TITLE 11—BANKRUPTCY § 362 riod ending on the date of the order for relief entered with respect to the petition; or (D) is an entity that has acquired substan- tially all of the assets or business of a small business debtor described in subparagraph (A), (B), or (C), unless such entity establishes by a preponderance of the evidence that such enti- ty acquired substantially all of the assets or business of such small business debtor in good faith and not for the purpose of evading this paragraph. (2) Paragraph (1) does not apply— (A) to an involuntary case involving no col- lusion by the debtor with creditors; or (B) to the filing of a petition if— (i) the debtor proves by a preponderance of the evidence that the filing of the petition resulted from circumstances beyond the con- trol of the debtor not foreseeable at the time the case then pending was filed; and (ii) it is more likely than not that the court will confirm a feasible plan, but not a liquidating plan, within a reasonable period of time. (o) The exercise of rights not subject to the stay arising under subsection (a) pursuant to paragraph (6), (7), (17), or (27) of subsection (b) shall not be stayed by any order of a court or ad- ministrative agency in any proceeding under this title. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2570; Pub. L. 97–222, § 3, July 27, 1982, 96 Stat. 235; Pub. L. 98–353, title III, §§ 304, 363(b), 392, 441, July 10, 1984, 98 Stat. 352, 363, 365, 371; Pub. L. 99–509, title V, § 5001(a), Oct. 21, 1986, 100 Stat. 1911; Pub. L. 99–554, title II, §§ 257(j), 283(d), Oct. 27, 1986, 100 Stat. 3115, 3116; Pub. L. 101–311, title I, § 102, title II, § 202, June 25, 1990, 104 Stat. 267, 269; Pub. L. 101–508, title III, § 3007(a)(1), Nov. 5, 1990, 104 Stat. 1388–28; Pub. L. 103–394, title I, §§ 101, 116, title II, §§ 204(a), 218(b), title III, § 304(b), title IV, § 401, title V, § 501(b)(2), (d)(7), Oct. 22, 1994, 108 Stat. 4107, 4119, 4122, 4128, 4132, 4141, 4142, 4144; Pub. L. 105–277, div. I, title VI, § 603, Oct. 21, 1998, 112 Stat. 2681–886; Pub. L. 109–8, title I, § 106(f), title II, §§ 214, 224(b), title III, §§ 302, 303, 305(1), 311, 320, title IV, §§ 401(b), 441, 444, title VII, §§ 709, 718, title IX, § 907(d), (o)(1), (2), title XI, § 1106, title XII, § 1225, Apr. 20, 2005, 119 Stat. 41, 54, 64, 75, 77, 79, 84, 94, 104, 114, 117, 127, 131, 176, 181, 182, 192, 199; Pub. L. 109–304, § 17(b)(1), Oct. 6, 2006, 120 Stat. 1706; Pub. L. 109–390, § 5(a)(2), Dec. 12, 2006, 120 Stat. 2696; Pub. L. 111–327, § 2(a)(12), Dec. 22, 2010, 124 Stat. 3558; Pub. L. 116–189, § 9, Oct. 30, 2020, 134 Stat. 970.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Section 362(a)(1) of the House amendment adopts the provision contained in the Senate amendment enjoin- ing the commencement or continuation of a judicial, administrative, or other proceeding to recover a claim against the debtor that arose before the commence- ment of the case. The provision is beneficial and inter- acts with section 362(a)(6), which also covers assess- ment, to prevent harassment of the debtor with respect to pre-petition claims. Section 362(a)(7) contains a provision contained in H.R. 8200 as passed by the House. The differing provi- sion in the Senate amendment was rejected. It is not possible that a debt owing to the debtor may be offset against an interest in the debtor. Section 362(a)(8) is new. The provision stays the com- mencement or continuation of any proceeding con- cerning the debtor before the U.S. Tax Court. Section 362(b)(4) indicates that the stay under section 362(a)(1) does not apply to affect the commencement or continuation of an action or proceeding by a govern- mental unit to enforce the governmental unit’s police or regulatory power. This section is intended to be given a narrow construction in order to permit govern- mental units to pursue actions to protect the public health and safety and not to apply to actions by a gov- ernmental unit to protect a pecuniary interest in prop- erty of the debtor or property of the estate. Section 362(b)(6) of the House amendment adopts a provision contained in the Senate amendment restrict- ing the exception to the automatic stay with respect to setoffs to permit only the setoff of mutual debts and claims. Traditionally, the right of setoff has been lim- ited to mutual debts and claims and the lack of the clarifying term ‘‘mutual’’ in H.R. 8200 as passed by the House created an unintentional ambiguity. Section 362(b)(7) of the House amendment permits the issuance of a notice of tax deficiency. The House amendment re- jects section 362(b)(7) in the Senate amendment. It would have permitted a particular governmental unit to obtain a pecuniary advantage without a hearing on the merits contrary to the exceptions contained in sec- tions 362(b)(4) and (5). Section 362(d) of the House amendment represents a compromise between comparable provisions in the House bill and Senate amendment. Under section 362(d)(1) of the House amendment, the court may termi- nate, annul, modify, or condition the automatic stay for cause, including lack of adequate protection of an interest in property of a secured party. It is anticipated that the Rules of Bankruptcy Procedure will provide that those hearings will receive priority on the cal- endar. Under section 362(d)(2) the court may alter- natively terminate, annul, modify, or condition the automatic stay for cause including inadequate protec- tion for the creditor. The court shall grant relief from the stay if there is no equity and it is not necessary to an effective reorganization of the debtor. The latter requirement is contained in section 362(d)(2). This section is intended to solve the problem of real property mortgage foreclosures of property where the bankruptcy petition is filed on the eve of foreclosure. The section is not intended to apply if the business of the debtor is managing or leasing real prop- erty, such as a hotel operation, even though the debtor has no equity if the property is necessary to an effec- tive reorganization of the debtor. Similarly, if the debtor does have an equity in the property, there is no requirement that the property be sold under section 363 of title 11 as would have been required by the Senate amendment. Section 362(e) of the House amendment represents a modification of provisions in H.R. 8200 as passed by the House and the Senate amendment to make clear that a final hearing must be commenced within 30 days after a preliminary hearing is held to determine whether a creditor will be entitled to relief from the automatic stay. In order to insure that those hearings will in fact occur within such 30-day period, it is anticipated that the rules of bankruptcy procedure provide that such final hearings receive priority on the court calendar. Section 362(g) places the burden of proof on the issue of the debtor’s equity in collateral on the party re- questing relief from the automatic stay and the burden on other issues on the debtor. An amendment has been made to section 362(b) to permit the Secretary of the Department of Housing and Urban Development to commence an action to fore- close a mortgage or deed of trust. The commencement of such an action is necessary for tax purposes. The sec- tion is not intended to permit the continuation of such an action after it is commenced nor is the section to be construed to entitle the Secretary to take possession in lieu of foreclosure. Page 84 TITLE 11—BANKRUPTCY § 362 Automatic stay: Sections 362(b)(8) and (9) contained in the Senate amendment are largely deleted in the House amendment. Those provisions add to the list of actions not stayed (a) jeopardy assessments, (b) other assessments, and (c) the issuance of deficiency notices. In the House amendment, jeopardy assessments against property which ceases to be property of the estate is al- ready authorized by section 362(c)(1). Other assessments are specifically stayed under section 362(a)(6), while the issuance of a deficiency notice is specifically per- mitted. Stay of the assessment and the permission to issue a statutory notice of a tax deficiency will permit the debtor to take his personal tax case to the Tax Court, if the bankruptcy judge authorizes him to do so (as explained more fully in the discussion of section 505). SENATE REPORT NO. 95–989 The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all fore- closure actions. It permits the debtor to attempt a re- payment or reorganization plan, or simply to be re- lieved of the financial pressures that drove him into bankruptcy. The action commenced by the party seeking relief from the stay is referred to as a motion to make it clear that at the expedited hearing under subsection (e), and at hearings on relief from the stay, the only issue will be the lack of adequate protection, the debt- or’s equity in the property, and the necessity of the property to an effective reorganization of the debtor, or the existence of other cause for relief from the stay. This hearing will not be the appropriate time at which to bring in other issues, such as counterclaims against the creditor, which, although relevant to the question of the amount of the debt, concern largely collateral or unrelated matters. This approach is consistent with that taken in cases such as In re Essex Properties, Ltd., 430 F.Supp. 1112 (N.D.Cal.1977), that an action seeking relief from the stay is not the assertion of a claim which would give rise to the right or obligation to as- sert counterclaims. Those counterclaims are not to be handled in the summary fashion that the preliminary hearing under this provision will be. Rather, they will be the subject of more complete proceedings by the trustee to recover property of the estate or to object to the allowance of a claim. However, this would not pre- clude the party seeking continuance of the stay from presenting evidence on the existence of claims which the court may consider in exercising its discretion. What is precluded is a determination of such collateral claims on the merits at the hearing. HOUSE REPORT NO. 95–595 Paragraph (7) [of subsec. (a)] stays setoffs of mutual debts and credits between the debtor and creditors. As with all other paragraphs of subsection (a), this para- graph does not affect the right of creditors. It simply stays its enforcement pending an orderly examination of the debtor’s and creditors’ rights. Subsection (c) governs automatic termination of the stay. Subsections (d) through (g) govern termination of the stay by the court on the request of a party in inter- est. Subsection (d) requires the court, on request of a party in interest, to grant relief from the stay, such as by terminating, annulling, modifying, or conditioning the stay, for cause. The lack of adequate protection of an interest in property of the party requesting relief from the stay is one cause for relief, but is not the only cause. As noted above, a desire to permit an action to proceed to completion in another tribunal may provide another cause. Other causes might include the lack of any connection with or interference with the pending bankruptcy case. For example, a divorce or child cus- tody proceeding involving the debtor may bear no rela- tion to the bankruptcy case. In that case, it should not be stayed. A probate proceeding in which the debtor is the executor or administrator of another’s estate usu- ally will not be related to the bankruptcy case, and should not be stayed. Generally, proceedings in which the debtor is a fiduciary, or involving postpetition ac- tivities of the debtor, need not be stayed because they bear no relationship to the purpose of the automatic stay, which is debtor protection from his creditors. The facts of each request will determine whether relief is appropriate under the circumstances. Subsection (e) provides a protection for secured credi- tors that is not available under present law. The sub- section sets a time certain within which the bank- ruptcy court must rule on the adequacy of protection provided of the secured creditor’s interest. If the court does not rule within 30 days from a request for relief from the stay, the stay is automatically terminated with respect to the property in question. In order to ac- commodate more complex cases, the subsection per- mits the court to make a preliminary ruling after a preliminary hearing. After a preliminary hearing, the court may continue the stay only if there is a reason- able likelihood that the party opposing relief from the stay will prevail at the final hearing. Because the stay is essentially an injunction, the three stages of the stay may be analogized to the three stages of an in- junction. The filing of the petition which gives rise to the automatic stay is similar to a temporary restrain- ing order. The preliminary hearing is similar to the hearing on a preliminary injunction, and the final hear- ing and order is similar to a permanent injunction. The main difference lies in which party must bring the issue before the court. While in the injunction setting, the party seeking the injunction must prosecute the action, in proceedings for relief from the automatic stay, the enjoined party must move. The difference does not, however, shift the burden of proof. Subsection (g) leaves that burden on the party opposing relief from the stay (that is, on the party seeking continuance of the injunction) on the issue of adequate protection. At the expedited hearing under subsection (e), and at all hearings on relief from the stay, the only issue will be the claim of the creditor and the lack of adequate protection or existence of other cause for relief from the stay. This hearing will not be the appropriate time at which to bring in other issues, such as counterclaims against the creditor on largely unrelated matters. Those counterclaims are not to be handled in the sum- mary fashion that the preliminary hearing under this provision will be. Rather, they will be the subject of more complete proceedings by the trustees to recover property of the estate or to object to the allowance of a claim. Editorial Notes REFERENCES IN TEXT Section 5(a)(3) of the Securities Investor Protection Act of 1970, referred to in subsecs. (a) and (b), is classi- fied to section 78eee(a)(3) of Title 15, Commerce and Trade. The Social Security Act, referred to in subsec. (b)(2)(D) to (G), (28), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Titles IV, XI, and XVIII of the Act are classified generally to subchapters IV (§ 601 et seq.), XI (§ 1301 et seq.), and XVIII (§ 1395 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. Sections 464, 466, and 1128B of the Act are classified to sections 664, 666, and 1320a–7b, respectively, of Title 42. For com- plete classification of this Act to the Code, see section 1305 of Title 42 and Tables. The National Housing Act, referred in subsec. (b)(8), is act June 27, 1934, ch. 847, 48 Stat. 1246, which is classi- fied principally to chapter 13 (§ 1701 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see section 1701 of Title 12 and Tables. The Higher Education Act of 1965, referred to in sub- sec. (b)(16), is Pub. L. 89–329, Nov. 8, 1965, 79 Stat. 1219, which is classified generally to chapter 28 (§ 1001 et seq.) of Title 20, Education. Section 435(j) of the Act is clas- Page 85 TITLE 11—BANKRUPTCY § 362 sified to section 1085(j) of Title 20. For complete classi- fication of this Act to the Code, see Short Title note set out under section 1001 of Title 20 and Tables. The Internal Revenue Code of 1986, referred to in sub- sec. (b)(19), is classified generally to Title 26, Internal Revenue Code. Section 408(b)(1) of the Employee Retirement Income Security Act of 1974, referred to in subsec. (b)(19)(A), is classified to section 1108(b)(1) of Title 29, Labor. AMENDMENTS 2020—Subsec. (b)(29). Pub. L. 116–189 added par. (29). 2010—Subsec. (a)(8). Pub. L. 111–327, § 2(a)(12)(A), sub- stituted ‘‘tax liability of a debtor that is a corpora- tion’’ for ‘‘corporate debtor’s tax liability’’. Subsec. (c)(3). Pub. L. 111–327, § 2(a)(12)(B)(i), inserted ‘‘a’’ after ‘‘against’’ in introductory provisions. Subsec. (c)(4)(A)(i). Pub. L. 111–327, § 2(a)(12)(B)(ii), in- serted ‘‘under a chapter other than chapter 7 after dis- missal’’ after ‘‘refiled’’. Subsec. (d)(4). Pub. L. 111–327, § 2(a)(12)(C), substituted ‘‘hinder, or’’ for ‘‘hinder, and’’ in introductory provi- sions. Subsec. (l)(2). Pub. L. 111–327, § 2(a)(12)(D), substituted ‘‘nonbankruptcy’’ for ‘‘nonbankrupcty’’. 2006—Subsec. (b)(6), (7). Pub. L. 109–390, § 5(a)(2)(A), added pars. (6) and (7) and struck out former pars. (6) and (7) which read as follows: ‘‘(6) under subsection (a) of this section, of the setoff by a commodity broker, forward contract merchant, stockbroker, financial institution, financial partici- pant, or securities clearing agency of any mutual debt and claim under or in connection with commodity con- tracts, as defined in section 761 of this title, forward contracts, or securities contracts, as defined in section 741 of this title, that constitutes the setoff of a claim against the debtor for a margin payment, as defined in section 101, 741, or 761 of this title, or settlement pay- ment, as defined in section 101 or 741 of this title, aris- ing out of commodity contracts, forward contracts, or securities contracts against cash, securities, or other property held by, pledged to, under the control of, or due from such commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency to margin, guarantee, secure, or settle commodity contracts, for- ward contracts, or securities contracts; ‘‘(7) under subsection (a) of this section, of the setoff by a repo participant or financial participant, of any mutual debt and claim under or in connection with re- purchase agreements that constitutes the setoff of a claim against the debtor for a margin payment, as de- fined in section 741 or 761 of this title, or settlement payment, as defined in section 741 of this title, arising out of repurchase agreements against cash, securities, or other property held by, pledged to, under the control of, or due from such repo participant or financial par- ticipant to margin, guarantee, secure or settle repur- chase agreements;’’. Subsec. (b)(12). Pub. L. 109–304, § 17(b)(1)(A), sub- stituted ‘‘chapter 537 of title 46 or section 109(h) of title 49’’ for ‘‘section 207 or title XI of the Merchant Marine Act, 1936’’. Subsec. (b)(13). Pub. L. 109–304, § 17(b)(1)(B), sub- stituted ‘‘chapter 537 of title 46’’ for ‘‘section 207 or title XI of the Merchant Marine Act, 1936’’. Subsec. (b)(17). Pub. L. 109–390, § 5(a)(2)(B), added par. (17) and struck out former par. (17) which read as fol- lows: ‘‘under subsection (a), of the setoff by a swap par- ticipant or financial participant of a mutual debt and claim under or in connection with one or more swap agreements that constitutes the setoff of a claim against the debtor for any payment or other transfer of property due from the debtor under or in connection with any swap agreement against any payment due to the debtor from the swap participant or financial par- ticipant under or in connection with any swap agree- ment or against cash, securities, or other property held by, pledged to, under the control of, or due from such swap participant or financial participant to margin, guarantee, secure, or settle any swap agreement;’’. Subsec. (b)(27). Pub. L. 109–390, § 5(a)(2)(C), added par. (27) and struck out former par. (27) which read as fol- lows: ‘‘under subsection (a), of the setoff by a master netting agreement participant of a mutual debt and claim under or in connection with one or more master netting agreements or any contract or agreement sub- ject to such agreements that constitutes the setoff of a claim against the debtor for any payment or other transfer of property due from the debtor under or in connection with such agreements or any contract or agreement subject to such agreements against any pay- ment due to the debtor from such master netting agree- ment participant under or in connection with such agreements or any contract or agreement subject to such agreements or against cash, securities, or other property held by, pledged to, under the control of, or due from such master netting agreement participant to margin, guarantee, secure, or settle such agreements or any contract or agreement subject to such agreements, to the extent that such participant is eligible to exer- cise such offset rights under paragraph (6), (7), or (17) for each individual contract covered by the master net- ting agreement in issue; and’’. 2005—Subsec. (a)(8). Pub. L. 109–8, § 709, substituted ‘‘a corporate debtor’s tax liability for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title’’ for ‘‘the debtor’’. Subsec. (b)(2). Pub. L. 109–8, § 214, added par. (2) and struck out former par. (2) which read as follows: ‘‘under subsection (a) of this section— ‘‘(A) of the commencement or continuation of an action or proceeding for— ‘‘(i) the establishment of paternity; or ‘‘(ii) the establishment or modification of an order for alimony, maintenance, or support; or ‘‘(B) of the collection of alimony, maintenance, or support from property that is not property of the es- tate;’’. Subsec. (b)(6). Pub. L. 109–8, § 907(d)(1)(A), (o)(1), sub- stituted ‘‘financial institution, financial participant,’’ for ‘‘financial institutions,’’ in two places and inserted ‘‘, pledged to, under the control of,’’ after ‘‘held by’’. Subsec. (b)(7). Pub. L. 109–8, § 907(d)(1)(B), (o)(2), in- serted ‘‘or financial participant’’ after ‘‘repo partici- pant’’ in two places and ‘‘, pledged to, under the con- trol of,’’ after ‘‘held by’’. Subsec. (b)(17). Pub. L. 109–8, § 907(d)(1)(C), added par. (17) and struck out former par. (17) which read as fol- lows: ‘‘under subsection (a) of this section, of the setoff by a swap participant, of any mutual debt and claim under or in connection with any swap agreement that constitutes the setoff of a claim against the debtor for any payment due from the debtor under or in connec- tion with any swap agreement against any payment due to the debtor from the swap participant under or in connection with any swap agreement or against cash, securities, or other property of the debtor held by or due from such swap participant to guarantee, secure or settle any swap agreement;’’. Subsec. (b)(18). Pub. L. 109–8, § 1225, amended par. (18) generally. Prior to amendment, par. (18) read as fol- lows: ‘‘under subsection (a) of the creation or perfec- tion of a statutory lien for an ad valorem property tax imposed by the District of Columbia, or a political sub- division of a State, if such tax comes due after the fil- ing of the petition;’’. Subsec. (b)(19). Pub. L. 109–8, § 224(b), added par. (19). Subsec. (b)(20), (21). Pub. L. 109–8, § 303(b), added pars. (20) and (21). Subsec. (b)(22) to (24). Pub. L. 109–8, § 311(a), added pars. (22) to (24). Subsec. (b)(25). Pub. L. 109–8, § 401(b), added par. (25). Subsec. (b)(26). Pub. L. 109–8, § 718, added par. (26). Subsec. (b)(27). Pub. L. 109–8, § 907(d)(1)(D), added par. (27). Subsec. (b)(28). Pub. L. 109–8, § 1106, added par. (28). Subsec. (c). Pub. L. 109–8, § 305(1)(A), substituted ‘‘(e), (f), and (h)’’ for ‘‘(e), and (f)’’ in introductory provi- sions. Page 86 TITLE 11—BANKRUPTCY § 362 Subsec. (c)(3), (4). Pub. L. 109–8, § 302, added pars. (3) and (4). Subsec. (d). Pub. L. 109–8, § 303(a), added par. (4) and concluding provisions. Subsec. (d)(3). Pub. L. 109–8, § 444(1), inserted ‘‘or 30 days after the court determines that the debtor is sub- ject to this paragraph, whichever is later’’ after ‘‘90-day period)’’ in introductory provisions. Subsec. (d)(3)(B). Pub. L. 109–8, § 444(2), added subpar. (B) and struck out former subpar. (B) which read as fol- lows: ‘‘the debtor has commenced monthly payments to each creditor whose claim is secured by such real es- tate (other than a claim secured by a judgment lien or by an unmatured statutory lien), which payments are in an amount equal to interest at a current fair market rate on the value of the creditor’s interest in the real estate; or’’. Subsec. (e). Pub. L. 109–8, § 320, designated existing provisions as par. (1) and added par. (2). Subsec. (h). Pub. L. 109–8, § 305(1)(C), added subsec. (h). Former subsec. (h) redesignated (k). Subsecs. (i), (j). Pub. L. 109–8, § 106(f), added subsecs. (i) and (j). Subsec. (k). Pub. L. 109–8, § 441(1), designated existing provisions as par. (1), substituted ‘‘Except as provided in paragraph (2), an’’ for ‘‘An’’, and added par. (2). Pub. L. 109–8, § 305(1)(B), redesignated subsec. (h) as (k). Subsecs. (l), (m). Pub. L. 109–8, § 311(b), added subsecs. (l) and (m). Subsec. (n). Pub. L. 109–8, § 441(2), added subsec. (n). Subsec. (o). Pub. L. 109–8, § 907(d)(2), added subsec. (o). 1998—Subsec. (b)(4), (5). Pub. L. 105–277 added par. (4) and struck out former pars. (4) and (5) which read as follows: ‘‘(4) under subsection (a)(1) of this section, of the commencement or continuation of an action or pro- ceeding by a governmental unit to enforce such govern- mental unit’s police or regulatory power; ‘‘(5) under subsection (a)(2) of this section, of the en- forcement of a judgment, other than a money judg- ment, obtained in an action or proceeding by a govern- mental unit to enforce such governmental unit’s police or regulatory power;’’. 1994—Subsecs. (a), (b). Pub. L. 103–394, § 501(d)(7)(A), (B)(i), struck out ‘‘(15 U.S.C. 78eee(a)(3))’’ after ‘‘Act of 1970’’ in introductory provisions. Subsec. (b)(2). Pub. L. 103–394, § 304(b), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘under subsection (a) of this section, of the col- lection of alimony, maintenance, or support from prop- erty that is not property of the estate;’’. Subsec. (b)(3). Pub. L. 103–394, § 204(a), inserted ‘‘, or to maintain or continue the perfection of,’’ after ‘‘to perfect’’. Subsec. (b)(6). Pub. L. 103–394, § 501(b)(2)(A), sub- stituted ‘‘section 761’’ for ‘‘section 761(4)’’, ‘‘section 741’’ for ‘‘section 741(7)’’, ‘‘section 101, 741, or 761’’ for ‘‘sec- tion 101(34), 741(5), or 761(15)’’, and ‘‘section 101 or 741’’ for ‘‘section 101(35) or 741(8)’’. Subsec. (b)(7). Pub. L. 103–394, § 501(b)(2)(B), sub- stituted ‘‘section 741 or 761’’ for ‘‘section 741(5) or 761(15)’’ and ‘‘section 741’’ for ‘‘section 741(8)’’. Subsec. (b)(9). Pub. L. 103–394, § 116, amended par. (9) generally. Prior to amendment, par. (9) read as follows: ‘‘under subsection (a) of this section, of the issuance to the debtor by a governmental unit of a notice of tax de- ficiency;’’. Subsec. (b)(10). Pub. L. 103–394, § 501(d)(7)(B)(ii), struck out ‘‘or’’ at end. Subsec. (b)(12). Pub. L. 103–394, § 501(d)(7)(B)(iii), sub- stituted ‘‘section 31325 of title 46’’ for ‘‘the Ship Mort- gage Act, 1920 (46 App. U.S.C. 911 et seq.)’’ and struck out ‘‘(46 App. U.S.C. 1117 and 1271 et seq., respectively)’’ after ‘‘Act, 1936’’. Subsec. (b)(13). Pub. L. 103–394, § 501(d)(7)(B)(iv), sub- stituted ‘‘section 31325 of title 46’’ for ‘‘the Ship Mort- gage Act, 1920 (46 App. U.S.C. 911 et seq.)’’ and struck out ‘‘(46 App. U.S.C. 1117 and 1271 et seq., respectively)’’ after ‘‘Act, 1936’’ and ‘‘or’’ at end. Subsec. (b)(14). Pub. L. 103–394, § 501(d)(7)(B)(vii), amended par. (14) relating to the setoff by a swap par- ticipant of any mutual debt and claim under or in con- nection with a swap agreement by substituting ‘‘; or’’ for period at end, redesignating par. (14) as (17), and in- serting it after par. (16). Subsec. (b)(15). Pub. L. 103–394, § 501(d)(7)(B)(v), struck out ‘‘or’’ at end. Subsec. (b)(16). Pub. L. 103–394, § 501(d)(7)(B)(vi), struck out ‘‘(20 U.S.C. 1001 et seq.)’’ after ‘‘Act of 1965’’ and substituted semicolon for period at end. Subsec. (b)(17). Pub. L. 103–394, § 501(d)(7)(B)(vii)(II), (III), redesignated par. (14) relating to the setoff by a swap participant of any mutual debt and claim under or in connection with a swap agreement as (17) and in- serted it after par. (16). Subsec. (b)(18). Pub. L. 103–394, § 401, added par. (18). Subsec. (d)(3). Pub. L. 103–394, § 218(b), added par. (3). Subsec. (e). Pub. L. 103–394, § 101, in last sentence sub- stituted ‘‘concluded’’ for ‘‘commenced’’ and inserted before period at end ‘‘, unless the 30-day period is ex- tended with the consent of the parties in interest or for a specific time which the court finds is required by compelling circumstances’’. 1990—Subsec. (b)(6). Pub. L. 101–311, § 202, inserted ref- erence to sections 101(34) and 101(35) of this title. Subsec. (b)(12). Pub. L. 101–508, § 3007(a)(1)(A), which directed the striking of ‘‘or’’ after ‘‘State law;’’, could not be executed because of a prior amendment by Pub. L. 101–311. See below. Pub. L. 101–311, § 102(1), struck out ‘‘or’’ after ‘‘State law;’’. Subsec. (b)(13). Pub. L. 101–508, § 3007(a)(1)(B), which directed the substitution of a semicolon for period at end, could not be executed because of a prior amend- ment by Pub. L. 101–311. See below. Pub. L. 101–311, § 102(2), substituted ‘‘; or’’ for period at end. Subsec. (b)(14) to (16). Pub. L. 101–508, § 3007(a)(1)(C), added pars. (14) to (16). Notwithstanding directory lan- guage adding pars. (14) to (16) immediately following par. (13), pars. (14) to (16) were added after par. (14), as added by Pub. L. 101–311, to reflect the probable intent of Congress. Pub. L. 101–311, § 102(3), added par. (14) relating to the setoff by a swap participant of any mutual debt and claim under or in connection with a swap agreement. Notwithstanding directory language adding par. (14) at end of subsec. (b), par. (14) was added after par. (13) to reflect the probable intent of Congress. 1986—Subsec. (b). Pub. L. 99–509 inserted sentence at end. Subsec. (b)(6). Pub. L. 99–554, § 283(d)(1), substituted ‘‘, financial institutions’’ for ‘‘financial institution,’’ in two places. Subsec. (b)(9). Pub. L. 99–554, § 283(d)(2), (3), struck out ‘‘or’’ at end of first par. (9) and redesignated as par. (10) the second par. (9) relating to leases of nonresidential property, which was added by section 363(b) of Pub. L. 98–353. Subsec. (b)(10). Pub. L. 99–554, § 283(d)(3), (4), redesig- nated as par. (10) the second par. (9) relating to leases of nonresidential property, added by section 363(b) of Pub. L. 99–353, and substituted ‘‘property; or’’ for ‘‘property.’’. Former par. (10) redesignated (11). Subsec. (b)(11). Pub. L. 99–554, § 283(d)(3), redesignated former par. (10) as (11). Subsec. (b)(12), (13). Pub. L. 99–509 added pars. (12) and (13). Subsec. (c)(2)(C). Pub. L. 99–554, § 257(j), inserted ref- erence to chapter 12 of this title. 1984—Subsec. (a)(1). Pub. L. 98–353, § 441(a)(1), inserted ‘‘action or’’ after ‘‘other’’. Subsec. (a)(3). Pub. L. 98–353, § 441(a)(2), inserted ‘‘or to exercise control over property of the estate’’. Subsec. (b)(3). Pub. L. 98–353, § 441(b)(1), inserted ‘‘or to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title’’. Subsec. (b)(6). Pub. L. 98–353, § 441(b)(2), inserted ‘‘or due from’’ after ‘‘held by’’ and ‘‘financial institution,’’ Page 87 TITLE 11—BANKRUPTCY § 363 after ‘‘stockbroker’’ in two places, and substituted ‘‘se- cure, or settle commodity contracts’’ for ‘‘or secure commodity contracts’’. Subsec. (b)(7) to (9). Pub. L. 98–353, § 441(b)(3), (4), in par. (8) as redesignated by Pub. L. 98–353, § 392, sub- stituted ‘‘the’’ for ‘‘said’’ and struck out ‘‘or’’ the last place it appeared which probably meant ‘‘or’’ after ‘‘units;’’ that was struck out by Pub. L. 98–353, § 363(b)(1); and, in par. (9), relating to notices of defi- ciencies, as redesignated by Pub. L. 98–353, § 392, sub- stituted a semicolon for the period. Pub. L. 98–353, § 392, added par. (7) and redesignated former pars. (7) and (8) as (8) and (9), respectively. Pub. L. 98–353, § 363(b), struck out ‘‘or’’ at end of par. (7), substituted ‘‘; or’’ for the period at end of par. (8), and added par. (9) relating to leases of nonresidential property. Subsec. (b)(10). Pub. L. 98–353, § 441(b)(5), added par. (10). Subsec. (c)(2)(B). Pub. L. 98–353, § 441(c), substituted ‘‘or’’ for ‘‘and’’. Subsec. (d)(2). Pub. L. 98–353, § 441(d), inserted ‘‘under subsection (a) of this section’’ after ‘‘property’’. Subsec. (e). Pub. L. 98–353, § 441(e), inserted ‘‘the con- clusion of’’ after ‘‘pending’’ and substituted ‘‘The court shall order such stay continued in effect pending the conclusion of the final hearing under subsection (d) of this section if there is a reasonable likelihood that the party opposing relief from such stay will prevail at the conclusion of such final hearing. If the hearing under this subsection is a preliminary hearing, then such final hearing shall be commenced not later than thirty days after the conclusion of such preliminary hearing.’’ for ‘‘If the hearing under this subsection is a prelimi- nary hearing— ‘‘(1) the court shall order such stay so continued if there is a reasonable likelihood that the party oppos- ing relief from such stay will prevail at the final hearing under subsection (d) of this section; and ‘‘(2) such final hearing shall be commenced within thirty days after such preliminary hearing.’’ Subsec. (f). Pub. L. 98–353, § 441(f), substituted ‘‘Upon request of a party in interest, the court, with or’’ for ‘‘The court,’’. Subsec. (h). Pub. L. 98–353, § 304, added subsec. (h). 1982—Subsec. (a). Pub. L. 97–222, § 3(a), inserted ‘‘, or an application filed under section 5(a)(3) of the Securi- ties Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)),’’ after ‘‘this title’’ in provisions preceding par. (1). Subsec. (b). Pub. L. 97–222, § 3(b), inserted ‘‘, or of an application under section 5(a)(3) of the Securities In- vestor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)),’’ after ‘‘this title’’ in provisions preceding par. (1). Subsec. (b)(6). Pub. L. 97–222, § 3(c), substituted provi- sions that the filing of a bankruptcy petition would not operate as a stay, under subsec. (a) of this section, of the setoff by a commodity broker, forward contract merchant, stockbroker, or securities clearing agency of any mutual debt and claim under or in connection with commodity, forward, or securities contracts that con- stitutes the setoff of a claim against the debtor for a margin or settlement payment arising out of com- modity, forward, or securities contracts against cash, securities, or other property held by any of the above agents to margin, guarantee, or secure commodity, for- ward, or securities contracts, for provisions that such filing would not operate as a stay under subsection (a)(7) of this section, of the setoff of any mutual debt and claim that are commodity futures contracts, for- ward commodity contracts, leverage transactions, op- tions, warrants, rights to purchase or sell commodity futures contracts or securities, or options to purchase or sell commodities or securities. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–390 not applicable to any cases commenced under this title or to appointments made under any Federal or State law, before Dec. 12, 2006, see section 7 of Pub. L. 109–390, set out as a note under section 101 of this title. EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under this title before Oct. 22, 1994, see section 702 of Pub. L. 103–394, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–508, title III, § 3007(a)(3), Nov. 5, 1990, 104 Stat. 1388–28, provided that: ‘‘The amendments made by this subsection [amending this section and section 541 of this title] shall be effective upon date of enactment of this Act [Nov. 5, 1990].’’ Pub. L. 101–508, title III, § 3008, Nov. 5, 1990, 104 Stat. 1388–29, provided that the amendments made by sub- title A (§§ 3001–3008) of title III of Pub. L. 101–508, amending this section, sections 541 and 1328 of this title, and sections 1078, 1078–1, 1078–7, 1085, 1088, and 1091 of Title 20, Education, and provisions set out as a note under section 1078–1 of Title 20, were to cease to be ef- fective Oct. 1, 1996, prior to repeal by Pub. L. 102–325, title XV, § 1558, July 23, 1992, 106 Stat. 841. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 257 of Pub. L. 99–554 effective 30 days after Oct. 27, 1986, but not applicable to cases commenced under this title before that date, see sec- tion 302(a), (c)(1) of Pub. L. 99–554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. Amendment by section 283 of Pub. L. 99–554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99–554. Pub. L. 99–509, title V, § 5001(b), Oct. 21, 1986, 100 Stat. 1912, provided that: ‘‘The amendments made by sub- section (a) of this section [amending this section] shall apply only to petitions filed under section 362 of title 11, United States Code, which are made after August 1, 1986.’’ EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. REPORT TO CONGRESSIONAL COMMITTEES Pub. L. 99–509, title V, § 5001(a), Oct. 21, 1986, 100 Stat. 1911, directed Secretary of Transportation and Sec- retary of Commerce, before July 1, 1989, to submit re- ports to Congress on the effects of amendments to 11 U.S.C. 362 by this subsection. § 363. Use, sale, or lease of property (a) In this section, ‘‘cash collateral’’ means cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the es- tate and an entity other than the estate have an interest and includes the proceeds, products, off- spring, rents, or profits of property and the fees, charges, accounts or other payments for the use or occupancy of rooms and other public facili- ties in hotels, motels, or other lodging prop- erties subject to a security interest as provided