Tag Archives: Unlawful Detainer

How Much Time Do I Get If I Am Being Evicted Then File Bankruptcy?

By Ryan C. Wood

What a question. It depends upon many things and if you want a guarantee of time before you must leave the home or apartment for nonpayment of rent when you are behind on the rent or lease payments someone would have to lie to you. Since that will not happen around here the answer to this question requires asking a few questions to know what is possible or not when a bankruptcy petition is filed and staying in a rental unit. There are just too many moving parts to make some sort of blanket statement about how much time you will get before you have to move out. So I will do my best to answer the question, “What happens if I am being evicted then file bankruptcy? How much time will I get in my place?”

So some guy calls me and says, “I got this form here from the internet that says I get thirty days.” Okay, what form? Response: I do not know. Does your landlord have an unlawful detainer judgment against you already? Response: I do not know. Okay, well, that is almost nothing to go on so here is what is possible if you file for bankruptcy protection and your landlord is trying to get you evicted.

Filing Motion For Relief From Automatic Stay

Once a bankruptcy petition if filed the automatic stay takes effect, is self-executing, and stops/enjoins any and all collection activity against you including evictions. A creditor/landlord can ask the Bankruptcy Court for relief from the automatic stay to continue the eviction though. In the Northern District of California Bankruptcy Court the local rules provide a hearing can be scheduled by creditor/landlord for a motion for relief from the automatic stay on 14 day’s notice. A creditor/landlord could also file a motion for shortened notice and try and get a hearing scheduled on their motion for relief from the automatic stay on less than 14 day’s notice. The notice procedure for hearing is different in different jurisdictions though so this timing may or may not apply in your jurisdiction. Also, this is assuming the landlord/creditor filed the motion for relief from stay as soon as possible after the bankruptcy case is filed. Generally notice of any bankruptcy case takes 4 – 7 days given notice to creditors is mailed via United States First Class Mail by the Bankruptcy Noticing Center. So a landlord/creditor would not even find out about the bankruptcy case until days after your bankruptcy attorney files the bankruptcy petition unless notice was faxed to the landlord/creditor given you are worried about eviction …. FRBP 4001(a)(3) also stops the enforcement of an order grating relief from the automatic stay unless FRBP 4001(a)(3) is waived. So if this rule is not waived you get another 14 days to stay before the order granting relief from stay is signed/entered.

But again does the landlord/creditor already have a judgment in the unlawful detainer lawsuit or have they even filed an unlawful detainer lawsuit against you?

Your Landlord Already Obtained An Unlawful Detainer Judgment For Right of Possession

If your landlord has already obtained an unlawful detainer judgment for right of possession then there is no automatic stay pursuant to Bankruptcy Code Section 362(b)(22). Section 362(b)(22) provides the automatic stay pursuant to Bankruptcy Code Section 362(a)(3) does not apply if: subject to subsection (l), under subsection (a)(3), of the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor.

I will get to subsection (l) in a moment. For now our facts are your landlord sued you in an unlawful detainer action and has a judgment for possession before you filed your bankruptcy case. If so there is no automatic stay and as an experienced bankruptcy attorney I do know of attorneys out there that have had sheriff departments evict people within days of the filing of a bankruptcy case. The attorney for the landlord was good and knew what there were doing. Along with the other documents it takes to have someone evicted the landlord attorney also sent Section 362(b)(22) of the Bankruptcy Code and the sheriff followed the law. You get evicted in a matter of days of the filing for bankruptcy protection.

What Is This 30-Days I Get After Filing Bankruptcy If I Am Facing Eviction?

So finally we get to what this caller was actually talking about, Subsection (l) of 362 of the Bankruptcy Code. Subsection (l) provides: (1) Except as otherwise provided in this subsection, subsection (b)(22) shall apply on the date that is 30 days after the date on which the bankruptcy petition is filed, IF the debtor files with the petition and serves upon the lessor a certification under penalty of perjury that— (A) under nonbankruptcy law applicable in the jurisdiction, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment for possession was entered; and (B) the debtor (or an adult dependent of the debtor) has deposited with the clerk of the court, any rent that would become due during the 30-day period after the filing of the bankruptcy petition. This is now Official Form 101A: “Initial Statement About an Eviction Judgment Against You.” You must also deposit with the Clerk of the Court the rent amount for that 30 day period. That 30 days you get is not free. For the automatic stay to continue after the 30 days you must also then pay the entire amount due in the unlawful detainer judgment against you and fill out and file Official Form 101B: Statement About Payment of an Eviction Judgment Against You.
Are there other circumstances that this article may not address the could change what I just wrote above? Yes. Generally speaking if facing eviction you either do not have an unlawful detainer judgment entered against you or you do.