A Pro Debtor and Majority Approach to the "Automatic Stay" Provision of the Bankruptcy Code—In re Cowen Incorrectly Decided

Abstract

On February 27, 2017, in In re Cowen, the U.S. Court of Appeals for the Tenth Circuit held that only affirmative actions to either obtain possession or exercise control over property of the bankruptcy estate constitute violations of the automatic stay provision. In doing so, the court concluded that the passive retention of an asset that was acquired pre-petition was not a violation of the automatic stay, and that the creditor had no obligation to relinquish the asset to the bankruptcy estate. This Comment argues that the Tenth Circuit misinterpreted the automatic stay provision of the Bankruptcy Code, disregarding clear policy considerations and legislative history, which evidence Congress’s intent behind the provision’s 1984 amendment.