This Comment details the history of the automatic stay, the differing treatment of the statute in various jurisdictions, and the potential ramifications to debtors. Clearly, much of the time-consuming analysis performed by courts could be avoided if the Bankruptcy Code expressly permitted recovery for emotional distress, something most courts already permit, albeit only after considerable hand-wringing and strained reasoning. As a result, this Comment proposes a statutory addition to § 362(k) that addresses the dual concerns of bankruptcy courts: (1) allowing a legitimately injured debtor to recover for emotional distress damages while (2) providing a standard and burden of proof narrow enough to prevent frivolous claims. The proposed addition is also broad enough to allow courts discretion to consider the type of harm alleged and the credibility of the source, while requiring "severe emotional distress" - a requirement designed to curb or eliminate frivolous claims. Finally, it is also argued that as a policy matter an addition is necessary not only to meet the primary underlying objectives of the automatic stay but also to provide consistent treatment for all debtors and creditors regardless of the jurisdiction.
Nathan M. Priestaf,
Setting Things Straight: Adding a Provision to Allow Damages for Emotional Distress in the Bankruptcy Code Could Clear up a Lot of Confusion,
74 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol74/iss2/9