Relief from the automatic stay: the motion is not permission to proceed

Identify the precise action being requested

A creditor may seek relief from the automatic stay under section 362(d). The statute includes relief for cause, including lack of adequate protection, and a separate ground concerning specified property where the debtor lacks equity and the property is not necessary to an effective reorganization. Other subsections and special situations can also matter.

The motion should identify the debtor, property, proposed action, and legal basis. A request to continue a particular lawsuit is different from a request to foreclose on collateral or enforce a judgment. The scope of the relief matters to everyone receiving notice.

Build evidence for the asserted ground

An adequate-protection dispute may depend on collateral value, changes in value, insurance, or the terms of an existing order. An equity-and-reorganization dispute raises a different combination of questions. Section 362(g) allocates burdens of proof, including the movant's burden on the debtor's equity in property.

For illustration, missed loan payments do not alone explain every element of a motion concerning business equipment. The motion and response may need to address liens, valuation, use in operations, and the prospects for an effective reorganization. Distinguish legal elements from a general history of default.

Wait for the operative authority

Filing a motion does not itself grant relief. Statutory timing provisions, applicable rules, interim orders, and the final order need to be considered together. Do not infer permission to act from the fact that a hearing occurred or that nobody called to object.

Read the entered order for conditions, affected parties, property, and the effective date. Relief from the stay does not necessarily determine every underlying claim or defense under nonbankruptcy law. A creditor may still need to follow the procedures applicable to the proposed enforcement action.

Before acting on stay relief

• Confirm the exact relief requested and granted.
• Check any waiting period, condition, or continuing restriction.
• Separate stay permission from the merits of the underlying dispute.
• Retain the entered order and evidence that applicable conditions were met.