Q: My tenant is two months behind on his rent, he told me if I try to evict him he will file bankruptcy to stop the eviction, can he do that?
A: Yes, but only for a certain period of time and only under certain conditions. A person who files bankruptcy is called a debtor. Anyone he owes money to can be added as a creditor in the bankruptcy case, including a landlord. When a person files bankruptcy it automatically stays or stops all other court proceedings against them in any other court. The court and the parties are not allowed to do anything in the case until the stay is removed or the bankruptcy court grants a party relief from stay. In most cases the landlord will have to go to the bankruptcy court and file a motion for relief from the automatic bankruptcy stay in order to continue the eviction proceedings.
Depending on what happens, it can take anywhere from one to three months from the time the tenant files bankruptcy before you can move forward with your eviction.
Q: What if my tenant filed bankruptcy and I just want to serve him with a three day notice to pay rent or quit but I am not planning on filing an unlawful detainer in court yet, do I still have to file a motion for relief from the automatic bankruptcy stay?
A: Yes. The automatic bankruptcy stay applies to any act by any creditor or third party to obtain possession of property that Debtor may own or have a leasehold interest in. A three day notice demands that the tenant either pay his rent or quit the property. Thus, if you give the tenant any type of notice asking him to give you possession of the property after he has filed bankruptcy you are violating the automatic bankruptcy stay because you are trying to get possession of property that might be part of his bankruptcy case. In most situations, you will have to file a motion for relief from the automatic stay before you can serve a tenant with such a notice.
Q: What is a motion for relief from the automatic bankruptcy stay?
A: In simple terms, a motion is a formal, usually written, request for the Bankruptcy Court to provide the party filing the motion with some sort of relief. When a landlord files a motion for relief from the automatic bankruptcy stay, he is requesting that the Bankruptcy Court allow him to move forward with his eviction even though the tenant/debtor filed bankruptcy and the bankruptcy case is still open.
If the Bankruptcy Court grants the motion the landlord can go forward with his eviction. If the Bankruptcy Court denies the motion the landlord has to wait until the bankruptcy case ends before he can move forward with his eviction against the tenant/debtor.
Q: What happens if I just go forward with my eviction and I don’t attempt to get relief from the automatic bankruptcy case?
A: A violation of the automatic bankruptcy stay carries serious consequences. If you go forward with your eviction after the tenant/debtor informs you that he filed bankruptcy, he can then go after you in bankruptcy court to collect monetary damages from you and to have the Court declare that the actions you had taken after the tenant/debtor filed bankruptcy were invalid or void. You can be considered in contempt of court and you can face other sanctions. This means that the Court can punish you and force you to do certain things because you violated the bankruptcy stay by moving forward with your eviction. Thus, if your tenant files bankruptcy you should consult with an attorney to determine if/how you can proceed forward with your eviction.
Q: If I’ve already filed an unlawful detainer, how long does it take to get relief from the automatic stay before I can continue with my eviction?
A: It depends. Sometimes you can ask the court to hear your motion on an emergency basis. If not, you have to file your motion and wait for the tenant/debtor to respond. If the tenant/debtor responds and opposes your motion you will have to go to a hearing before a bankruptcy judge. If you win you then have to wait for the judge to sign an order granting you relief, and sometimes you have to wait an additional two weeks after the order is signed before you can go forward with your eviction. If the tenant/debtor does not respond to your motion it will generally take less time to get your order signed by a bankruptcy judge so you can move forward with your eviction sooner.
In general, when you file a motion for relief from the automatic bankruptcy stay, you cannot continue your eviction until you have a signed order granting your motion or the bankruptcy case is closed, whichever is sooner. Depending on what happens, it can take anywhere from one to three months from the time the tenant files bankruptcy before you can move forward with your eviction. This is an average estimate and each individual case will vary.
Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 18 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM. Walk-in’s welcome -no appointment necessary. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email firstname.lastname@example.org.