Language of does NOT invoke for insider(s)… BUT, § 362(a) automatic stay bankruptcy court MAY issue injunctive relief (as per to protect § 105(a)) insider(s) from Cs states that discharge of D does NOT affect liability of any others… § 524(e) AND, in 9th Circuit, if related 3rd is NOT protected by discharge of D, then NOT protected by injunctive relief… BUT, if injunctive relief IS issued, then must be narrowly-tailored … (credible threat for settlement w/ Cs) Notable exceptions to automatic stay… perfection” (as per § 362(b)(3) § 547(e)(2)(A)) “federal foreclosure against if D § 362(b)(21) real property serial bankruptcy (order from prior bankruptcy prohibiting D from filing for bankruptcy petitions again) Relief from automatic stay… § 362(d)(1) relief for D files for bankruptcy on eve of (i.e. discovery completed, judge clued in)… If P can make compelling showing of (i.e. claim “good unusually complicated, unlike other claims), then bankruptcy court MAY allow state court claim to proceed (despite pending bankruptcy)... BUT, bankruptcy court would want authority to second-guess … judgment/enforceability (strict control of remedies) Problems w/ prejudgment attachment lien… If/when P obtains/records prejudgment attachment lien (encumbering D’s assets), goal is for to to judgment lien relate back date of prejudgment attachment lien… BUT, if D files for bankruptcy before judgment, AND P does … NOT obtain then some CA courts hold P liable for relief for cause, (tort claim) does wrongful attachment prejudgment attachment lien NOT materialize to (though, NOT b/c of lack of merit, judgment lien BUT b/c of D’s bankruptcy filing)… thus, P MAY seek ONLY to avoid relief for wrongful … claim few courts have allowed attachment includes Relief for cause of adequate protection”… “lack
Language of § 362(a) does NOT invoke automatic stay for insider(s)… BUT, bankruptcy court MAY issue injunctive relief (as per § 105(a)) to protect insider(s) from Cs § 524(e) states that discharge of D does NOT affect liability of any others… AND, in 9th Circuit, if related 3rd is NOT protected by discharge of D, then NOT protected by injunctive relief… … BUT, if injunctive relief IS issued, then must be narrowly-tailored (credible threat for settlement w/ Cs) Notable exceptions to automatic stay… § 362(b)(3) “federal perfection” (as per § 547(e)(2)(A)) § 362(b)(21) foreclosure against real property if D serial bankruptcy petitions (order from prior bankruptcy prohibiting D from filing for bankruptcy again) Relief from automatic stay… § 362(d)(1) relief for D files for bankruptcy on eve of (i.e. discovery completed, judge clued in)… If P can make compelling showing of “good (i.e. claim unusually complicated, unlike other claims), then bankruptcy court MAY allow state court claim to proceed (despite pending bankruptcy)... … BUT, bankruptcy court would want authority to second-guess judgment/enforceability (strict control of remedies) Problems w/ prejudgment attachment lien… If/when P obtains/records prejudgment attachment lien (encumbering D’s assets), goal is for judgment lien to relate back to date of prejudgment attachment lien… … BUT, if D files for bankruptcy before judgment, AND P does NOT obtain relief for cause, then some CA courts hold P liable for wrongful attachment (tort claim) prejudgment attachment lien does NOT materialize to judgment lien (though, NOT b/c of lack of merit, BUT b/c of D’s bankruptcy filing)… … thus, P MAY seek relief for ONLY to avoid wrongful attachment claim few courts have allowed Relief for cause includes “lack of adequate protection”…
Bankruptcy_Schechter-Fall-2009.docx