In re Bennett

3 Citing cases

  1. In re Franklin

    111 B.R. 582 (Bankr. E.D. Tex. 1989)   Cited 2 times

    U.S. Code Congressional and Administrative News, 95 Cong., 2d Sess., at 5787, 5841. A non-exhaustive list of other cases that have confronted the issue are In Re Miller, 58 B.R. 192 (Bkrtcy.S.D.Tex. 1985) (Action to avoid a fraudulent conveyance not a proper issue in an 11 U.S.C. § 362 complaint); In Re Biller, 27 B.R. 206 at 208 (Bkrtcy.M.D.Penn. 1982) (Breach of contract claim not relevant to a request for relief from the stay); In Re Bennett, 17 B.R. 843 (Bkrtcy.D.N.M., 1982) (Matters raised extraneous to the issue of lifting automatic stay, whether they are raised by counterclaim, third-party complaint or otherwise shall be dismissed from the main stay complaint and may be filed in the separate proceeding). Other cases have held that affirmative defenses or counterclaims are not to be entertained in the context of a Motion for Relief from Automatic Stay except in those limited instances where the defense contests the validity of the creditor's lien as distinguished from the amount of the lien.

  2. In re Gellert

    55 B.R. 970 (Bankr. D.N.H. 1985)   Cited 21 times
    Holding that court can "consider" affirmative defenses or counterclaims raising "extraneous" issues in deciding whether to exercise its equitable discretion in granting relief from automatic stay, but "such consideration . . . does not authorize proceeding to a res judicata determination of such allegations on the merits"

    It has been held that "extraneous issues" raised by an attempt to assert affirmative defenses or counterclaims should not normally delay quick action upon the question of relief from the automatic stay. In re Born, 10 B.R. 43 (S.D.Tex. 1981); In re Simmons, 13 B.R. 429, 431 (D.Minn. 1981); In re Bennett, 17 B.R. 843, 844 (D.N.M. 1982). On the other hand, it has also been held that the bankruptcy court in a § 362 stay relief hearing can "consider" such allegations, and their apparent substance or lack thereof, in deciding whether to exercise its equitable discretion in granting relief from the automatic stay.

  3. In re Lekvold

    18 B.R. 663 (Bankr. D.N.M. 1982)   Cited 3 times

    Pursuant to 11 U.S.C. § 362(b)(2), the automatic stay does not apply to the collection of alimony, maintenance or support from property that is not property of the estate. Further, Bankruptcy Rule 701 read in conjunction with Bankruptcy Rule 703 provides that an action for relief from stay is an adversary proceeding which is commenced by filing a complaint with the bankruptcy court. Requests for lifting the automatic stay are intended to be heard in an expedited hearing at which time the only issues to be considered are those directly relating to the lifting of the stay and any issue extraneous to the stay being lifted is to be heard at a later date. 11 U.S.C. § 362 (1978); House Report No. 95-595, 95th Cong., 1st Sess. (1977) 344; cf. Senate Report No. 95-989, 95th Cong. 2d Sess. (1978) 53, 55, U.S. Code Cong. Admin. News 1978, p. 5787; In re Bennett (Wyatt v. Bennett), 17 B.R. 843 (D.N.M.) (1982). Requests for relief from the automatic stay should be the only focus in such a proceeding and the pleadings initiating it must reflect such a fact.