15.66 3. Procedure

• Jurisdiction: New York

3. Procedure

In general, a court will not grant relief from the automatic stay unless so requested by a party in interest.²⁷⁸⁶ The party opposing relief has the burden of proof on all issues except whether the debtor has any equity in the property.²⁷⁸⁷

Section 362(e) contains procedural requirements to ensure an expeditious decision on all requests for relief from the automatic stay. In respect of acts against property, the stay automatically terminates 30 days after a request for relief as to the party making such a request unless the court, after notice and a hearing, determines that the stay should be continued.²⁷⁸⁸ A determination to continue the stay may occur at a preliminary hearing if there is a reasonable likelihood that the party opposing the relief requested will prevail at the final hearing.²⁷⁸⁹

The final hearing must be concluded within 30 days after the conclusion of the preliminary hearing, unless such period is extended upon consent of the parties “or for a specific time which the court finds is required by compelling circumstances.”²⁷⁹⁰ However, in the case of an individual debtor under Chapter 7, 11 or 13, the stay automatically terminates 60 days after a party files a request for relief from the stay, unless the 60-day period is extended either by agreement between the parties or by the court for good cause.²⁷⁹¹

The effect of these provisions is to force at least a speedy preliminary consideration of a request for relief from the stay. These provisions were codified because of Congress’s concern that the court delay in handling such requests for relief, in cases under the former Bankruptcy Act, amounted to a complete denial of relief.²⁷⁹² In emergency situations, the court may grant ex parte relief from the automatic stay.²⁷⁹³

--------

Notes:

^[2786] . 11 U.S.C. § 362(d); but see 11 U.S.C. § 105(a) (“No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.”).

^[2787] . 11 U.S.C. § 362(g). The party requesting relief from the automatic stay under section 362(d) or (e) must establish a prima facie case, including proof of its status as a secured creditor, in order to obtain relief from the automatic stay. In re Cabrillo, 101 B.R. 443, 447 (Bankr. E.D. Pa. 1989); In re Planned Sys., Inc., 78 B.R. 852, 859...