Abstract
In 1983, the Illinois Supreme Court held that a plaintiff’s state court statute of limitations period is tolled by the automatic stay provision of the Bankruptcy Code when a defendant debtor claims bankruptcy. Thus in an Illinois State Court, a plaintiff will have the total number of days that the automatic stay was in place added to the regular statute of limitations to file a claim. However, in the decades since Illinois’s interpretation of the automatic stay provision, a vast majority of other jurisdictions have held that Bankruptcy Code compels no such modification to a state statute of limitations period. This comment analyzes the plain language, legislative intent, and public policy behind the automatic stay provision of the Bankruptcy Code to show that the Illinois Supreme Court’s analysis of the automatic stay provision was flawed and that their conclusion on the provision’s scope was in error. In analyzing the flawed rationale of the Illinois interpretation of the automatic stay provision, the author proposes a method by which the court can revisit the statute of limitations question. The proposed solution takes into account related issues, such as the Illinois Savings Statute, and resolves the question of whether the automatic stay provision should actually toll Illinois state statute of limitation periods in a way that reduces confusion for plaintiffs and brings Illinois law in line with how the vast majority of the other jurisdictions have held regarding this issue.
Recommended Citation
Seth Howard,
Does the Automatic Stay of the Bankruptcy Code Trigger the Illinois Savings Statute?: Why the Illinois Supreme Court Needs to Address the Issue,
35
S. Ill. U. L.J.
433
(2011).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol35/iss3/3