Section 362(d)(3): A Singular Provision of the Bankruptcy Code
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of the Bankruptcy Code
John B. Butler IMl*
I. INTRODUCTION
When the Bankruptcy Code was first enacted in 1978, there was no
specific limitation on the relief afforded a debtor with a case totally
dependent on one piece of real estate, other than the pre-existing
blanket requirement of good faith. When the Bankruptcy Code was
amended in 1994, Congress decided there was a need to curb abusive
filings and protect secured creditors who were being stayed for long
periods of time with no remuneration and no real hope of reorganiza-
tion by the debtor.1 The 2005 Bankruptcy Abuse Prevention and Con-
sumer Protection Act amended 11 U.S.C. § 362(d)(3) yet again.2 This
Article examines that statute section and the requirements therein.3
II. THE STATUTE
Section 362(d)(3) states:
On request of a party in interest and after notice and a hearing, the
court shall grant relief from the stay provided under subsection (a)
of this section, such as by terminating, annulling, modifying, or con-
ditioning such stay- . . . (3) with respect to a stay of an act against
single asset real estate under subsection (a), by a creditor whose
claim is secured by an interest in such real estate, unless, not later
than the date that is 90 days after the entry of the order for relief (or
* John B Butler III was Law Clerk to United States Bankruptcy Judge J. Bratton Davis, a
Standing Chapter 13 Trustee for fifteen years, and an adjunct professor of bankruptcy law at the
University of South Carolina School of Law. He is presently the author of the two-volume Bank-
ruptcy Handbook published by Knowles Publishing and specializes in representing creditors in
bankruptcy cases in South Carolina.
1. The Congressional record states:
[Section 218] amends the automatic stay provision of section 362 to provide special
circumstances under which creditors of a single asset real estate debtor may have the
stay lifted if the debtor has not filed a 'feasible' reorganization plan within 90 days of
filing, or has not commenced monthly payments to secured creditors.
140 CONG. REC. 27,695 (1994).
2. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8,
119 Stat. 23 (codified as amended in scattered sections of 11 U.S.C.).
3. Unless otherwise noted, this Article addresses the 2005 version of 11 U.S.C. § 362(d)(3)
(2000 and Supp. 2005).](ViewImageLocal?handle=hein.journals/depbcl6&div=13&collection=journals&method=preview&ext=.png&size=3)
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Section 362(d)(3): A Singular Provision of the Bankruptcy Code
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