Limited Exception: Some Filers Can Catch Up On Rent And Clear An Eviction
A few states allow a renter to clear an eviction in bankruptcy even after the landlord gets a judgment of possession. Here’s what you’ll have to do.
- When you file your bankruptcy case, you will file a certification with the court that indicates that your state allows you to cure your default after the landlord receives a judgment of possession.
- Serve a copy of the certification on your landlord.
- Deposit the amount of rent that will become due within 30 days after filing the bankruptcy case with the bankruptcy court clerk.
- No later than 30 days after you file your bankruptcy case, pay all of your rent arrears, and file a certificate with the court declaring that you’re caught up on your rent.
If you can fulfill the requirements, your rent would be current and your landlord wouldn’t proceed with the eviction.
How Can Bankruptcy Help Someone Facing Home Foreclosure
Bankruptcy can play a key role in stopping the foreclosure process. Once the attorney has filed for an automatic stay, the creditors are no longer able to collect on debt or enforce liens. The automatic stay applies to both Chapter 13 and Chapter 7 filings and goes into effect as soon as bankruptcy is filed.
The amount that you are behind on your mortgage payments is included for payments through the Chapter 13 plan, which gives you a fresh start with the mortgage lender, and enables you to save your home from foreclosure.
Sometimes your attorney can wipe out a second mortgage or equity line by including the debt in your Chapter 13 payment plan. Although this is a complicated legal maneuver, it is one that greatly helps many debtors going through bankruptcy. For that reason, you need the experience that we provide at Clark & Washington.
When A Written Eviction Notice Is Not Required
For states that dont require your landlord to give you a written eviction notice, you may not know your landlord has filed an eviction action against you until you receive court papers ordering you to appear for a hearing.
Dont panic! Read everything carefully so you understand when and where the hearing is, and what you need to do to prepare for the hearing. Hearings can be set for a few days to a few weeks after you receive the notice. You still dont have to move out yet.
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How Do I Prepare For Bankruptcy
I received a call from an individual the other day in Georgia about filing for bankruptcy. Filing a bankruptcy is a pretty straightforward procedure. Chapter 7 or Chapter 13 are basically form-driven, which means you have to bring in the same sort of documents, including two years worth of your previous tax returns, six months worth of pay stubs and three months worth of bank statements. You bring in all your bills, and if you can, put them down on a piece of paper or a leger atomizing what bills you owe, what are the monthly payments, who is the creditor, and what is the collateral. You have to bring in your drivers license and a Social Security card, as well. That basically gets you started for filing a bankruptcy. If you have any other questions, please give our office a call.
Eviction Process For Violation Of Lease Terms / Rental Agreement
A tenant can be evicted in Georgia if they do not uphold their responsibilities and obligations under the terms of a written lease/rental agreement.
Georgia landlords are not required to allow tenants to correct a lease violation in these instances, but they must provide tenants with a written or verbal notice prior to beginning an eviction action.
Typical lease violations under this category include damaging the rental property, having too many people residing in the rental unit, and having a pet when theres a no-pet policy.
Note that illegal activity is included in this category, including prostitution in the rental unit and other criminal acts.
How much time tenants must be given in the notice is not specified at the state level however, if the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.
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Bankruptcy And Eviction: Can Bankruptcy Stop Eviction
If you think you’re about to be evicted or if an eviction action is pending, the bankruptcy could affect how the eviction proceeds. If the court has issued a judgment for possession, you’ll be out of luck unless your state allows you to cure your past due rent after the court enters the judgment .
But you’ll have to act fast. You’ll only have thirty days to file paperwork and deposit your past due rent with the court.
If the suit hasn’t progressed that far, bankruptcy can stop the process at least temporarily. However, the landlord has the right to file a motion with the court asking the judge to lift the automatic stay so that the eviction case can continue forward. If granted, the landlord can start or resume the eviction suit.
When The Automatic Stay Will Not Stop An Eviction
Bankruptcy law gives landlords the right to evict a tenant, despite the automatic stay, in either of the following cases:
- The landlord got a judgment for possession before the tenant filed for bankruptcy .
- The landlord is evicting the tenant for endangering the property or the illegal use of controlled substances on the property.
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Tenant Resources For Challenging An Eviction In Georgia
Although Georgia has not passed too many laws regulating evictions, there are a number of resources available to tenants who need help with challenging an eviction. The Georgia Landlord Tenant Handbook, published by the State of Georgia, provides many answers to commonly asked eviction-related questions. GeorgiaLegalAid.org also provides eviction-related articles and pamphlets with more information for tenants. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.
Your local court is also a good resource, since eviction cases are filed in the county courthouse where the rental unit is located. They are specifically filed at the magistrate court. Visit the Georgia court’s online directory to find your county magistrate court.
How Should I Handle The Creditors That Are Calling Once I File Bankruptcy
We receive calls from clients occasionally that creditors continue to call after the filing of a bankruptcy. All creditors know that the filing of a bankruptcy automatically stays any collection action. If you receive calls from any creditors, first give them your attorneys name, as well as the case number. Most of the time, that stops the future calls, but if the calls continue, then I would ask you to call our office and let us know that the creditors are calling and we will contact the creditors and have that stop. If you have any questions, please give our office a call.
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Contact Our Office For A Free Initial Consultation About Relief From Foreclosure Or Eviction
The thought of losing your home or apartment is undoubtedly frightening, but you have options to avoid eviction or foreclosure. Clark & Washington, Attorneys at Law provides debt relief consultations at any of our 12 metro area locations. Call us at 770-488-9302 or schedule online for your free initial consultation.
Or have us contact you by filling out the form below:
Talk To Your Landlord
If you receive an eviction notice, or demand, you should first try talking to your landlord. You may be able to come to an agreement without going to court. An eviction will cost both of you money , and your landlord may be willing to stop the eviction if you agree to certain terms, such as paying rent you owe or stopping behavior that violates the lease. If you can’t come to an agreement that prevents you from moving out, perhaps you can agree on a certain date and time for when you will move out of the rental unit.
If you and the landlord are able to agree on anything, be sure to get the agreement in writing, signed and dated by both of you.
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Catch Up On Past Due Rent Using Chapter 13 Bankruptcy
Chapter 13 bankruptcy involves creating a court-approved plan to repay debts over 3-5 years based on household income and allowable expenses. Youre not required to give up any property and continue to live your life without living in fear of your creditors. At the end of the case, most of the remaining unpaid debt that is discharged by court order.
When it comes to dealing with past due rent, Chapter 13 serves as a uniquely powerful tool. Using Chapter 13, you can effectively force your landlord to accept a payment plan thats a lot longer than might otherwise be ordered in an eviction case. So long as you make all new monthly rent payments on time, Chapter 13 bankruptcy will give you the time you need to catch up on the rent without fear of losing your place.
Should I File For Bankruptcy If Im Falling Behind On My Mortgage Payments
I received a call from an individual the other day concerning delinquent mortgage payments in Georgia. A Chapter 13 bankruptcy is an ideal mechanism to catch up on delinquent payments in a mortgage. A Chapter 13 bankruptcy lasts between three to five years. If, for instance, you are two or three months behind on your mortgage and the mortgage company is threatening to foreclose, a Chapter 13 would give you a period of time up to five years to catch up on those mortgage payments. You would take your delinquent payments and divide it by either 36 or 48 or 60, whatever length and term of your plan might be, and that is the amount of the delinquency that you would pay inside the bankruptcy. In any sort of bankruptcy, whether its a Chapter 7 or 13, you would still have to make your current payments. The month after you file, you would have to begin making your current monthly payments. If you are entitled to catch up your monthly payments in a Chapter 13, you dont get to catch up your monthly payments in a Chapter 7 necessarily. If you have any further questions about this, just please give our office a call.
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Landlord Evicted Tenant For Discriminatory Reasons
The federal Fair Housing Act and the Georgia Fair Housing Act make it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status , and disability. If a tenant is evicted based on any of these characteristics, then the tenant can use the fair housing act as a defense against the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.
More Information On Evictions And Terminations
For more articles on the subject, see the Evictions and Terminations section of Nolo.com. If you want to learn about how tenant bankruptcy affects an eviction, see the Nolo article Bankrupt Tenants.
For more information on tenant rights, see Every Tenant’s Legal Guide, by Janet Portman and Marcia Stewart .
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Savannah Lawyers Offering Debt Relief Options So Clients Avoid Foreclosure
Our firm is proud to focus on bankruptcy and other forms of debt relief because we can provide help to those who feel hopeless. Were happy to let you know that these options are available to you when youre struggling to pay your bills:
Many people are unfamiliar with the bankruptcy, debt relief, or foreclosure and eviction processes before they speak with us. Do not let this stop you from seeking more information. Our goal is to make sure you are fully informed of the important options available to you.
Court Hearing And Judgment
Georgia law doesnt specify how soon an eviction hearing must be held after an affidavit is filed with the court or after a tenants response is received by the court. It will depend on how busy the trial courts hearing schedule is.
If the tenant does not appear for the hearing, or does not respond to the complaint, the court will issue a default judgment in favor of the landlord and the tenant will be required to move out.
If the judicial officer rules in favor of the landlord at the eviction hearing, a writ of possession will be issued, and the eviction will proceed.
Tenants have 7 days to appeal the judgment in order to avoid eviction.
A few days to a few weeks, depending on the courts schedule and whether the ruling is appealed.
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If You File Bankruptcy Before The Eviction Judgment:
Landlords are not allowed to proceed as usual with an eviction if the tenant has already filed for bankruptcy. Instead, they must go through federal bankruptcy courts to lift the automatic stay if they hope to continue with the proceedings. Judges will usually consent, as lease agreements do not have an impact on the overall value of a tenants estate.
What Happens To Your Co
Chapter 7 and Co-debtors
In a Chapter 7 case, your co-debtor is not protected at all. Creditors and collection agencies can continue to call, mail and otherwise dun a co-debtor not protected by the bankruptcy stay.
Chapter 13 and Co-debtors
In a Chapter 13, your co-debtor may be protected by something called the co-debtor stay. Under Section 1301 of the Bankruptcy Code, your bankruptcy filing will create a stay for the benefit of a co-debtor as to collection of consumer debt. For example, if you and your brother are co-signers on a personal credit card debt, your filing will create a stay that protects your brother as long as you remain in Chapter 13.
We have been able to use the co-debtor stay as leverage to negotiate debt settlements on behalf of co-debtors. Remember that credit card companies and other lenders are more interested in cash now than a promise to pay later.
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Removing Inaccurate Information From Credit Records
Credit bureaus and companies that provide renters screening reports are subject to the provisions of the Fair Credit Reporting Act. If you’re denied rental housing because of a credit report or a renters screening report, you’re entitled to the name of the provider and a copy of the report itself.
The company issuing the report isn’t required to remove correct and verifiable information. But, you can dispute anything that’s inaccurate. If it’s unverifiable, the company must remove it from the report.
Landlords Can Ask The Court To Lift The Stay For Other Reasons
Landlords can always ask the court to lift the automatic stay to begin or continue an eviction on any grounds. Although the automatic stay will kick in unless one of these exceptions applies, the judge can lift the stay upon the landlord’s request. And many courts are willing to do so, because most evictions will have no effect on the bankruptcy estatethat is, your tenancy isn’t something that the trustee can turn into money to pay your creditors. As a general rule, bankruptcy courts are inclined to let landlords exercise their property rights regardless of the tenants’ debt problems.
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Do Bankruptcies Clear Evictions From Credit Records
A bankruptcy discharge won’t erase past negative credit information, including evictions. The landlord has the right to report payment problems and an eviction status to credit bureaus. The negative information will stay on a credit report for as long as seven years after the event. An eviction lawsuit can also be picked up and reported as a public record by the credit bureaus.
How Long Does Bankruptcy Stay On My Credit Report
A lot of times, people ask us how long a bankruptcy will stay on your credit report. Thats a very difficult answer because its like Facebook and other social media how do you ever get something off the electronic web? The law states that a Chapter 7 bankruptcy is supposed to come off your credit report in ten years and a Chapter 13 bankruptcy is supposed to come off your credit report in seven years. If you have any other questions about how long the bankruptcy will stay on your credit report or if you needed our office to check and pull a credit report for you, please contact our office.
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Understanding Eviction Notices In Georgia
If your landlord decides to evict you, you will first receive a written notice that states the reason for the eviction and a time period to either comply with the notice, if possible, or move out of the rental unit. In Georgia, you could typically receive one of two types of eviction notices, depending on the reason for the eviction:
- Notice of termination, or demand: You will receive this notice because you either failed to pay rent or violated the lease or rental agreement. This notice, also called a demand, will give you a certain time frame to move out of the rental unit. The law does not state how many days the landlord must give you, but if you do not comply with the demand, then the landlord can file an eviction lawsuit .
- Sixty-day notice to quit: This notice can only be given if you have a month-to-month rental agreement. With this notice, you have 60 days to move out of the rental unit .
Also, keep in mind that there are negative consequences to being evicted, other than losing your home. An eviction will have a negative impact on your credit report, and it could affect your prospects for future housing. Some landlords will not rent to people who have been evicted from a previous location.
For more information on the eviction process in Georgia, see The Eviction Process in Georgia. Also, if you are being evicted because the rental property is being foreclosed, see the Nolo article Rights of Renters in Foreclosure.
