Exceptions to the Automatic Stay

Admin on July 30, 2020 Posted in Blog, Chapter 13 Bankruptcy, Chapter 7 Bankruptcy, General Bankruptcy

An automatic stay is one of the critical parts of filing bankruptcy. The stay stops most collection efforts against a debtor as soon as that individual files for bankruptcy. These orders exist without the need for a court order. To give you a better idea of the role that the automatic stay plays in a bankruptcy filing, the following reviews which debt collections are blocked by these stays and which are not.

Why Exceptions to the Automatic Stay Exist

There are certain times when a limited group of creditors can take actions against a person regardless of a bankruptcy filing. Also, sometimes, individuals resume actions that they began against someone before they filed for bankruptcy. Despite the need to protect the person who has filed for bankruptcy, these exceptions often recognize that there is a compelling reason why an action should be taken.

What Family Court Efforts are Stopped by Automatic Stays

As has been stated, most creditor collections are stopped by the automatic stay. Some of the efforts that are stopped include starting or continuing any court or administrative proceeding against the person filing for bankruptcy.

There are, however, some debts associated with family court whose collection does not stop as a result of an automatic stay. For example, automatic stays do not stop the collection of ongoing child or spousal support. This means that regardless of a bankruptcy filing, a support enforcement agency can continue its action to collect support that is owed each month.

Chapter 7 and Chapter 13 bankruptcy do not stop the collection of either ongoing or past-due support obligations. A former spouse or support enforcement agency can continue collection efforts after Chapter 7. Chapter 13, however, is different and enables a person to stop the collection of past-due support obligations. The collection of ongoing support is often not a problem because a person is obligated by the order of the family court to maintain monthly payments. Chapter 13, however, does stop the collection of past-due support. Most people will pay back these past dues as part of their repayment plan.

Are Criminal Proceedings Stopped by Bankruptcy Stays?

In short, no. Section 362(b)(1) of the Bankruptcy Code states that a bankruptcy filing does not function as an automatic stay of criminal actions or proceedings against a debt. Bankruptcy does not protect a person from criminal procedures, which includes arrests, indictments, trials, sentencing, parole, and appeals.

How Criminal Matter-Related Debts are Impacted by Bankruptcy Stays

Things like criminal fines are not protected under automatic stays. These collections are viewed as part of the continuation of criminal actions or proceedings, which are allowed to continue despite a bankruptcy filing. Similarly, the automatic stay exception also applies to less serious offenses like misdemeanors or felonies. Some common examples include traffic violations and their resulting court proceedings.

Why Bankruptcy do Not Stop Criminal Proceedings or the Collection of Criminal Debts

Most debts are classified as civil, which means a person owes a certain creditor. Debts arising from criminal proceedings are the result of alleged violations against the state, which means a person owes the resulting criminal fines to the state or society as a whole. Bankruptcy is classified as a civil proceeding, and the principle follows that it is not always appropriate for an individual to write off his or her criminal debt to society or the state through bankruptcy.

Other Exceptions to Automatic Stays

Section 362(b)(4) of the Bankruptcy Code states that Automatic stays do not apply to the continuation of actions or proceedings by government units to enforce against the government’s police and regulatory power. This exception applies to the government’s enforcement of laws impacting health, morals, and safety. For example, courts under this exception have held that debtors should still be required to pay parking fines.

Automatic Stays and Tax Collections

Most tax collections are immediately stopped by automatic stays. The Internal Revenue Service is just one of many agencies that must immediately stop writing letters or calling you after you file for bankruptcy. These agencies also cannot garnish your wages, record tax liens, or execute tax levies on a property after they discover that you have filed for bankruptcy.

Exemptions to Automatic Stays

Some exceptions allow agencies to take certain types of actions even after you have filed for bankruptcy. For example, an automatic stay does not prevent the Internal Revenue Services from:

Demanding that the person who filed for bankruptcy file tax returns
Making an assessment of the taxes of the person who recently filed
Starting or finishing tax audits to assess tax liability
Sending the person who filed for bankruptcy details about the amount of taxes owed

Automatic Stays and Tax Refunds

If the Internal Revenue Service owes a person a tax refund as of the time that they filed for bankruptcy, the agency may be able to perform a setoff of the amount that you are owed or apply the amount to a future tax that you will face. Setoffs are often a violation of an automatic stay, however. Bankruptcy usually has the effect of stopping the setoff of any debt owed to the debtor that arose before the commencement of the bankruptcy case.

This means that while an automatic stay often stops the Internal Revenue Service from attaching a debt owed to the debt and applying it to any claim against the debtor, a certain tax refund exemption is allowed. The Internal Revenue Service can use your tax refund to pay a tax debt you owe, provided that the agency has not yet given you that refund and both the tax refund and tax owed are for tax years that ended before the date of the bankruptcy filing.

Speak with an Experienced Bankruptcy Attorney

If you are navigating the bankruptcy process, it is tempting to go it alone. But this way, many mistakes can be made. One of the best strategies that a person can take is to retain the assistance of an experienced bankruptcy attorney. Contact attorney Melanie Tavare at (510) 255-4646 to schedule a free case evaluation.