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Vesting of Marital Property Determines the Scope of the Bankruptcy Estate

Creditors seeking to foreclose in state court on their real property liens frequently find their efforts frustrated by serial bankruptcy filers attempting to use the protections of the automatic stay to delay the foreclosure. To address this problem, § 362(c)(4)(A) of the Bankruptcy Code provides that when a debtor has had two or more cases pending and dismissed within a one-year period, the automatic stay will not take effect. Debtors seeking the protections of the automatic stay must file a separate motion seeking such relief. The standards of what a debtor must demonstrate in order for the bankruptcy court to impose the automatic stay, despite the prior filings, are beyond the scope of this article.

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