By Kitty J. Lin
Whether or not your landlord can evict you after you file a bankruptcy case depends on whether or not you owe any rent to your landlord. If you are current on all your rental obligations the landlord is not listed in your bankruptcy schedules as a creditor and will therefore probably never know you have filed for bankruptcy. Even if your landlord does find out you have filed for bankruptcy it may not matter to your landlord if you do not owe your landlord any money. Your landlord cannot evict you solely based on you filing for bankruptcy protection.
If you do owe your landlord some back rent, that may be a different story. Whether or not you receive an automatic stay depends on whether your landlord has obtained an unlawful detainer judgment against you. If you have filed for bankruptcy before a judgment is obtained, you have filed for bankruptcy and the automatic stay is in place then landlord cannot continue with the legal proceedings. This relief is only temporary though. Your landlord may file a motion for relief from the automatic stay requesting permission from the bankruptcy court to continue to evict you. If the landlord’s motion is granted, the landlord can continue with the legal proceedings against you even though you are in bankruptcy. If the landlord does not file a motion for relief from the automatic stay, then you would have the automatic stay until your bankruptcy case has been concluded. Your landlord can still continue with the legal proceedings for unlawful detainer against you after your bankruptcy case is concluded. The only thing the landlord cannot do is go after you for the back rent that was included in your bankruptcy case. For more information about bankruptcy and evictions please consult bankruptcy lawyers in your area.
What happens if there was an unlawful detainer judgment obtained against you before the filing of your bankruptcy case? Under 11 U.S.C. §362(b)(22), there is no automatic stay protection for you. The landlord may continue with the eviction process. Pursuant to 11 U.S.C. §362(l), one potential way to mitigate this process is if you file a certification with your bankruptcy petition that you are entitled to cure the entire default amount under state laws and you deposit one month’s rent with the clerk of court and the certification is served to the landlord. Then the automatic stay will be in place for 30 days if this is done. If you pay back all the rental arrears during this 30-day period and serve another certification on the landlord that the arrears are cured (as permitted by your applicable state laws) you will be entitled to the automatic stay for the duration of your bankruptcy process. The landlord can continue with the eviction process if you are unable to pay all the rental arrears. If the landlord objects to the certification that you filed, the court will hold a hearing within the 10 days after the filing and service of the objection from the landlord. There will be no automatic stay available if the court upholds the objection filed by the landlord. The ability to cure the rental arrears depends on your state’s laws. You should contact experienced bankruptcy attorneys to help you navigate these complicated waters.