Florida Bankruptcy - operation of the Sec. 362 Automatic Stay

In connection with every petition filed for Florida bankruptcy, 11 U.S.C. 362 provides a "stay" of further collection of debts from a debtor's estate. The operation of the prohibition is automatically invoked without the necessity of court review, permission or approval. After receiving a file number from the clerk, all debtors are immediately protected.

Creditors are assigned the burden of proving debtors are not entitled to relief should they file a motion to lift stay. Bans on legal action act as an injunction that prohibit creditors to begin or continue further collection efforts for a wide assortment of debts.

Florida bankruptcy stops real estate foreclosures. With limited exception, all foreclosure actions are prevented whether judicial, non-judicial, filed, threatened or pending. All creditor actions for payment become null, without legal force or effect, and creditors may not recommence legal action unless obtaining specific permission from the court after notice and hearing. Debtors must receive written notice of all motions to lift the injunction and are provided with an opportunity to be heard before the court rules on these motions.

Florida Bankruptcy Exceptions

The exceptions to an automatic stay are provided by 11 U.S.C. 362. For example, utility bills are covered by a special clause which allows for termination of service after 20 days. Many other types of collection efforts in a Florida bankruptcy are prohibited by the automatic stay statute permanently, including the following:

• Garnishment;
• Calls;
• Demand letters; and
• Lawsuits for consumer debts.

Creditors who violate the injunction knowingly are subject to sanctions. The court retains broad authority to prevent further violation and impose fines, civil sanctions, and criminal sanctions against creditors. Often creditors do not have actual notice when a case is filed, yet nevertheless must comply. Florida bankruptcy courts tend to be lenient on creditors who violate the stay before actual notice is received. However, after a creditor receives notice, Florida bankruptcy courts quickly grow intolerant of violations and sanctions for knowing violations are common.

Note: the particular chapter which may best serve debtors depends on many factors. Past due payments are treated differently. Property may be subject to forfeiture. The period of court supervision of the estate lasts from a few months, up to five years. The personal goals of each individual and their lawyer must receive primary consideration to maximize results.