What is a comfort order?
A "comfort order" is an informal term used in bankruptcy practice for a court order that extends or confirms the automatic stay. The term is not in the Bankruptcy Code -- it comes from the practical reality that debtors and creditors sometimes need the court to explicitly say "the stay is in effect" to resolve uncertainty.
The most common use of a comfort order is in repeat-filing situations under Section 362(c)(3), where the stay is set to terminate after 30 days. The debtor files a motion asking the court to extend the stay, the court holds a hearing, and if the debtor demonstrates good faith, the court enters an order keeping the stay in place for the duration of the case.
Comfort orders are also used in other situations:
- When a creditor claims the stay does not apply to a particular debt or action
- When a creditor is ignoring the stay and needs a specific court order to stop
- When the debtor wants to confirm that the stay covers a specific piece of property or a specific creditor action
- In Chapter 11 cases where the stay's scope is disputed in the context of ongoing business operations
When you need one
Section 362(c)(3) -- one prior case dismissed within a year
This is the most common scenario. If you had one prior bankruptcy case that was pending and dismissed within the year before your new filing, the automatic stay in your new case terminates after 30 days unless the court extends it. You must file a motion to extend the stay and get a court order before the 30 days expire.
Key requirement: The court may extend the stay only after notice and a hearing, and only if the debtor demonstrates that the new case was filed in good faith as to the creditors to be stayed. See 11 U.S.C. Section 362(c)(3)(B).
Section 362(c)(4) -- two or more prior cases dismissed within a year
If two or more prior cases were pending and dismissed within the year, no stay goes into effect at all. You need a court order to impose the stay -- not just extend it. The motion is similar but the burden is higher: you must demonstrate good faith by clear and convincing evidence.
Creditor challenges or confusion
Sometimes a creditor genuinely does not know whether the stay applies to their claim or action. A mortgage servicer may have been transferred the loan mid-case. A debt buyer may have acquired the claim after filing. In these situations, a comfort order from the court confirming the stay's scope can prevent violations before they happen.
Codebtor stay under Chapter 13
In Chapter 13 cases, Section 1301 extends the stay to cover co-debtors on consumer debts. If a creditor is pursuing a co-signer or co-debtor, the debtor may need a comfort order confirming that the codebtor stay is in effect.
How to file the motion
The motion to extend (or impose) the automatic stay is filed as a contested matter in the bankruptcy case. Here is the general process:
Step 1: Draft the motion
The motion should include:
- Identification of the prior case(s): Case number, chapter, filing date, dismissal date, and the reason for dismissal
- Statement of changed circumstances: What is different this time -- new income, resolved issues, different chapter, concrete plan
- Rebuttal of the presumption of bad faith: Address each factor listed in Section 362(c)(3)(C) directly
- Request for specific relief: Ask the court to extend (or impose) the stay as to all creditors, or as to specific creditors if appropriate
- Supporting declaration: A sworn statement from the debtor explaining the circumstances in detail
- Exhibits: Pay stubs, bank statements, budget, employment letter, proof of credit counseling, or any other evidence supporting good faith
Step 2: File before the deadline
Under Section 362(c)(3), the stay terminates on the 30th day. The motion must be filed, noticed, and heard before that date. In practice, this means filing the motion within the first few days of the case -- and ideally on the same day as the petition.
Do not wait. Courts are generally unwilling to extend the stay retroactively after the 30-day period has expired. Once the stay terminates, it is gone. Filing early is not just good practice -- it may be the only way to preserve your rights.
Step 3: Serve all affected creditors
Every creditor affected by the stay must receive notice of the motion and an opportunity to object. Service requirements vary by district -- check your local rules for the required method (mail, electronic service, etc.) and timing.
Step 4: Request an expedited hearing
Because of the 30-day deadline, most courts will schedule an expedited hearing on the motion. Some courts have standing procedures for 362(c)(3) motions -- contact the clerk's office or check the court's website for local requirements.
Step 5: Attend the hearing
Be prepared to explain to the judge what has changed since the prior case was dismissed. Bring all supporting documentation. If creditors appear and object, be ready to respond to their arguments. The judge will either grant the motion (extending the stay), deny it (letting the stay terminate), or continue the hearing for more evidence.
What courts look for
When deciding whether to extend or impose the stay, courts focus on whether the new case represents a genuine attempt at bankruptcy relief rather than a delay tactic. The key factors:
Good faith in the new filing
This is the central question. Courts assess good faith by looking at the totality of the circumstances. No single factor is dispositive, but the following weigh heavily:
- Has the debtor's financial situation materially changed since the prior dismissal?
- Has the debtor resolved the issue that caused the prior case to fail?
- Is there a realistic plan for completing the new case?
- Is the debtor's filing motivated by a genuine need for relief, or by a desire to stall a specific creditor action (foreclosure, repossession)?
Changed circumstances
Courts want to see concrete, verifiable changes -- not just promises. Strong evidence includes:
- New or increased income: A new job, a raise, a second income from a spouse
- Reduced expenses: A resolved legal issue, children aging out of care, a refinanced loan
- Different chapter: Filing Chapter 13 after a failed Chapter 7, or vice versa, with an explanation of why the new chapter is more appropriate
- Attorney representation: Hiring a bankruptcy attorney after a failed pro se case
- Completed requirements: Credit counseling done, documents prepared, plan drafted before filing
Explanation for the prior dismissal
The court will want to know why the prior case was dismissed. Explanations that help:
- Attorney error or abandonment (particularly if the debtor has new counsel)
- Medical emergency or family crisis that has since resolved
- Procedural dismissal for a minor issue (missed deadline, missing document) that has been corrected
- Voluntary dismissal to address a specific problem before refiling
Explanations that hurt:
- Failure to make plan payments with no change in income or expenses
- Repeated failure to file required documents
- Filing primarily to stop a foreclosure with no realistic plan to cure the arrearage
The presumption of bad faith -- and how to rebut it
Section 362(c)(3)(C) creates a presumption that the filing is not in good faith if any of the following are true:
- More than one prior case was pending within the year (this triggers the harsher 362(c)(4) instead)
- The prior case was dismissed after the debtor failed to file required documents (schedules, statement of financial affairs, means test, tax returns)
- The prior case was dismissed after the debtor failed to adequately protect the interest of a secured creditor (e.g., did not make adequate protection payments)
- There has been no substantial change in the debtor's financial or personal affairs since the prior case
The presumption is rebuttable by a preponderance of the evidence under 362(c)(3). Under 362(c)(4), the standard rises to clear and convincing evidence.
Practical tip: Address each presumption factor directly in your motion. If one of them applies, explain specifically what you have done to fix the problem. Courts appreciate debtors who acknowledge the prior failure and show concrete steps taken to prevent it from happening again.
What the motion should contain
While every district has its own formatting and procedural requirements, a strong motion to extend the automatic stay generally includes these components:
- Caption and case information: Standard bankruptcy motion header with your case number, chapter, and judge assignment
- Statement of jurisdiction: Brief statement that the court has jurisdiction under 28 U.S.C. Section 1334 and this is a core proceeding under 28 U.S.C. Section 157(b)(2)
- Factual background: When you filed the prior case, when it was dismissed, and why. When you filed the new case. What has changed.
- Legal basis: Citation to 11 U.S.C. Section 362(c)(3)(B) (for extension) or 362(c)(4)(B) (for imposition). Statement of the good-faith standard.
- Argument: Point-by-point rebuttal of the presumption of bad faith. Specific evidence of changed circumstances. Explanation of why the new case will succeed.
- Prayer for relief: Request that the court enter an order extending (or imposing) the automatic stay as to all creditors, or as to specific creditors.
- Declaration of debtor: Sworn statement under penalty of perjury supporting all factual assertions in the motion.
- Exhibits: Pay stubs, bank statements, employment verification, budget, credit counseling certificate, and any other supporting evidence.
- Proposed order: Many courts require a proposed order submitted with the motion.
If the motion is denied
If the court denies your motion to extend or impose the stay, the consequences are significant:
- No stay protection. Creditors can proceed with all collection activity -- foreclosure, repossession, garnishment, lawsuits -- even though your case is still pending.
- Your case continues. A denial of the stay extension does not dismiss your case. You can still pursue a discharge or plan confirmation, but without the protective shield of the stay.
- Creditor actions may be harder to undo. If a creditor repossesses your car or forecloses on your home while the stay is not in effect, those actions are generally valid.
Options after denial
- Continue the case without stay protection. In some situations, you may still benefit from completing the case even without the stay -- particularly in Chapter 7, where the case can move quickly to discharge.
- Dismiss the case and wait. If you dismiss the new case and wait at least 366 days from the prior dismissal, the repeat-filer provisions will no longer apply when you refile. This resets the clock. But be careful -- another dismissal creates a worse record.
- Appeal the denial. In some circumstances, the denial of a motion to extend the stay can be appealed. This is rare and time-sensitive -- consult an attorney immediately if you are considering an appeal.
- Negotiate with creditors directly. Without the stay, you may be able to negotiate a forbearance, workout, or payment arrangement outside of the bankruptcy process.
Be cautious about serial dismissals. Every dismissed case makes the next filing harder. If you dismiss this case and refile later, you will face the same (or worse) presumption of bad faith. Two or more dismissed cases within a year means no stay at all under Section 362(c)(4).
Related resources
- 30-Day Limit for Repeat Filers -- Full explanation of Sections 362(c)(3) and 362(c)(4)
- Repeat Filer Limits -- Overview of all serial filing restrictions
- Relief from Stay -- When creditors can ask to lift the stay
- How Long Does the Automatic Stay Last? -- General duration rules
- relieffromstay.org -- Comprehensive guide to motions for relief from stay
- serialfiler.org -- Serial filing restrictions explained
- 109g.org -- The 180-day filing bar under Section 109(g)