What can I do if my automatic stay is overturned?

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What can I do if my automatic stay is overturned?

My aunt recently filed for bankruptcy with her soon to be ex-husband. They were granted an automatic stay contingent on the forfeiture of their tax return to the bankruptcy court. Her ex was responsible for filing the taxes and she just found out he failed to do so causing their automatic stay to be overturned. Can she do anything to reverse this? Does she have to or can she re-apply?

Asked on August 10, 2011 Arizona

Answers:

Mark J. Markus / Mark J. Markus, Law Offices of

Answered 10 years ago | Contributor

I think there is something missing from your facts.  Was your aunt's present bankruptcy case the second one that she filed within a 12 month period?  That's the only way she would need to "apply" for an automatic stay which is, by definition, automatic in all other cases.   A tax return is a document filed with the tax entity, such as the Internal Revenue Service.  If in fact the basis for allowing her to obtain an automatic stay in a 2nd (or 3rd) bankruptcy case filed within a 1-year period was the requirement that her tax REFUND be turned over to a Trustee (refunds do not get turned over to the court), and she failed to do that, then yes, she would need to apply for the stay to be reimposed.  

She needs to hire a bankruptcy attorney who can review ALL the relevant facts and assist her as need be.

Mark J. Markus, Attorney at Law

Handling exclusively bankruptcy law cases in California since 1991.

http://www.bklaw.com/

Follow Me on Twitter:  @bklawr

Mark J. Markus / Mark J. Markus, Law Offices of

Answered 10 years ago | Contributor

I think there is something missing from your facts.  Was your aunt's present bankruptcy case the second one that she filed within a 12 month period?  That's the only way she would need to "apply" for an automatic stay which is, by definition, automatic in all other cases.   A tax return is a document filed with the tax entity, such as the Internal Revenue Service.  If in fact the basis for allowing her to obtain an automatic stay in a 2nd (or 3rd) bankruptcy case filed within a 1-year period was the requirement that her tax REFUND be turned over to a Trustee (refunds do not get turned over to the court), and she failed to do that, then yes, she would need to apply for the stay to be reimposed.  

She needs to hire a bankruptcy attorney who can review ALL the relevant facts and assist her as need be.

Mark J. Markus, Attorney at Law

Handling exclusively bankruptcy law cases in California since 1991.

http://www.bklaw.com/

Follow Me on Twitter:  @bklawr


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