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U.S. Code as of:
01/19/04
Section 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
Protection Act of 1970, operates as a stay, applicable to all
entities, of -
(1) the commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other
action 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 the debtor.
(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 criminal action or proceeding against the
debtor;
(2) 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 estate;
(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 subsection (a) of
this section, of the commencement or continuation of an action or
proceeding by a governmental unit or any organization exercising
authority under the Convention 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 enforcement of a
judgment other than a money judgment, obtained in an action or
proceeding by the governmental unit to enforce such governmental
unit's or organization's police or regulatory power;
[(5) Repealed. Pub. L. 105-277, div. I, title VI, Sec. 603(1),
Oct. 21, 1998, 112 Stat. 2681-866;]
(6) under subsection (a) of this section, of the setoff by a
commodity broker, forward contract merchant, stockbroker,
financial institutions, or securities clearing agency of any
mutual debt and claim under or in connection with commodity
contracts, 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 payment, as defined in section
101 or 741 of this title, arising out of commodity contracts,
forward contracts, or securities contracts against cash,
securities, or other property held by or due from such commodity
broker, forward contract merchant, stockbroker, financial
institutions, or securities clearing agency to margin, guarantee,
secure, or settle commodity contracts, forward contracts, or
securities contracts;
(7) under subsection (a) of this section, of the setoff by a
repo participant, of any mutual debt and claim under or in
connection with repurchase agreements that constitutes the setoff
of a claim against the debtor for a margin payment, as defined 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 or
due from such repo participant to margin, guarantee, secure or
settle repurchase agreements;
(8) under subsection (a) of this section, of the commencement
of any action by the Secretary 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
formerly insured under the National Housing Act and covers
property, or combinations of property, consisting of five or more
living units;
(9) under subsection (a), of -
(A) an audit by a governmental unit to determine tax
liability;
(B) the issuance to the debtor by a governmental 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 assessment shall not take effect unless
such tax is a debt of the debtor that will not be discharged 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 terminated by the expiration of the stated term
of the lease before the commencement of or during 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 dishonor 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 continuation, 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 construction, held by the
Secretary of Transportation under section 207 or title XI of the
Merchant Marine Act, 1936, 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 continuation, 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 facility held by the
Secretary of Commerce under section 207 or title XI of the
Merchant Marine Act, 1936;
(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 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 connection 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; or
(18) under subsection (a) of the creation or perfection of a
statutory lien for an ad valorem property tax imposed by the
District of Columbia, or a political subdivision of a State, if
such tax comes due after the filing of the petition.
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), and (f) of this
section -
(1) the stay of an act against property of the estate under
subsection (a) of this section continues until such property is
no longer property of the estate; and
(2) the stay of any other act under subsection (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.
(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 effective
reorganization; or
(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 interest 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
entered within that 90-day period) -
(A) the debtor has filed a plan of reorganization that has a
reasonable possibility of being confirmed within a reasonable
time; or
(B) the debtor has commenced monthly payments 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), 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.
(e) Thirty days after a request under subsection (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 notice and a hearing, orders such
stay continued in effect pending the conclusion of, or as a result
of, a final hearing and determination under subsection (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 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 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.
(f) Upon request of a party in interest, the court, with or
without a hearing, shall grant such relief from the stay provided
under subsection (a) of this section as is necessary to prevent
irreparable damage to the interest of an entity 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 equity in property; and
(2) the party opposing such relief has the burden of proof on
all other issues.
(h) An individual injured by any willful violation of a stay
provided by this section shall recover actual damages, including
costs and attorneys' fees, and, in appropriate circumstances, may
recover punitive damages.
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