Can You Stay In The Rental Unit After Filing For Bankruptcy
Yes, you can stay in your rental unit once you file for bankruptcy, but keep in mind that the situation will likely have a negative effect on your relationship with the landlord. They may also require you to pay your rent per diem going forward. Also, any further rent arrears you accumulate after the bankruptcy filing are your responsibility and will not be discharged by the bankruptcy, so if you do stay put, make sure you can pay your rent going forward.
How To Stop An Eviction Today Using Bankruptcy’s Automatic Stay
For most people, the key to stopping an eviction is to file for bankruptcy before the landlord gets an eviction judgment. Here’s why this works.
When you file for bankruptcy, an order called the automatic stay is put in place . The stay stops most creditors from pursuing a collection lawsuit, including pending eviction actions.
The good news is that most bankruptcy cases can be filed online at any time. And, in emergencies, you don’t need to file all of the forms. You can file an abbreviated emergency or skeleton filing and file the remaining documents within 14 days.
Will Bankruptcy Stop An Eviction
If you receive an eviction notice, filing for bankruptcy can bring the eviction action to a stop immediately. However, how long youll be able to stay will depend on:
- where the eviction case is in the process
- the type of bankruptcy chapter you file
- the laws of your state
- if illegal or destructive activity took place on the property
- whether you can bring your rent current, and
- if you cant pay the back rent, your landlords willingness to work with you.
In this article, youll learn more about how bankruptcy can help stay or stop an eviction case today.
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What Bankruptcy Can Do
Bankruptcy allows people struggling with debt to wipe out certain obligations and get a fresh start. The two primary bankruptcy types filedChapter 7 and Chapter 13 bankruptcyeach offer different benefits and, in some cases, treat debt and property differently, too. You’ll choose the chapter that’s right for you depending on your income, property, and goals.
Here are some of the things you can expect regardless of whether you file for Chapter 7 or 13.
Negotiating An Agreement With Your Landlord To Clear An Eviction
You dont have a right to stay in your residence just because you file for Chapter 13. You and your attorney must work with your landlord to determine how the rent will get caught up.
Your landlord will likely want the back payments paid soon. If you cant make that happen, you might be able to include a provision in the Chapter 13 plan allowing you to catch up the rent payments through the plan, as well as continue to make your ongoing rent payments. Some landlords will agree because youll have an incentive to make the payments each month.
However, the landlord doesnt have to accept payment terms. The law entitles the landlord to reasonably prompt payments, so the landlord isnt bound to any agreement that prevents back payments from getting paid quickly.
Another consideration is the fact that filing Chapter 13 costs more than Chapter 7 . It probably wouldnt be worth filing Chapter 13 if eviction is your only debt problem.
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Evictions For Endangering The Property Or The Illegal Use Of Controlled Substances
The bankruptcy automatic stay has a further exception in 11 U.S.C. § 362 for an eviction action that seeks possession of the residential property in which the debtor resides as a tenant under a lease or rental agreement based on endangerment of such property or the illegal use of controlled substances on such property.
The landlord must file and serve a certification under penalty of perjury that such an eviction action has been filed, or that the debtor, during the 30-day period preceding the date of the filing of the certification, has endangered the property or illegally used or allowed to be used a controlled substance on the property.
In that event, there is only a 15 day stay, during which the Debtor must file with the bankruptcy court an objection to the truth or legal sufficiency of the certification described, in which case the court will hold a hearing within 10 days to determine if the situation giving rise to the lessors certification existed or has been remedied.
Bankruptcy Can Eliminate Garnishments and Other Cash Drains that May Allow a Debtor to Pay Rent
If landlord is amenable to a payment plan and the tenant is otherwise having income garnished, bankruptcy can be a tool to increase available funds to pay rent either inside or outside the bankruptcy context. Bankruptcy may stop the garnishment upon filing, and eliminate the debt through the discharge.
Stopping An Eviction Using Bankruptcy Is A Matter Of Timing
If youre facing possible eviction, bankruptcy can help you catch up on past due rent, wipe out legal obligations under the lease, or give you more control over the situation.
Your options, however, may be limited if you wait too long. On the flip side, the need to prepare for bankruptcy may mean waiting to file your case. Review your situation with a bankruptcy lawyer early in the eviction process , so you can adequately plan for the best outcome.
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Can You Dispute An Eviction
If you have an eviction listed on a tenant screening report that you believe is inaccurate, contact the tenant screening company directly to dispute the information.
To check if there are any collection accounts for eviction-related debt appearing on your Experian credit report, you can request your free Experian credit report online.
If you have a collection account on your Experian credit report that you believe is incorrect, you can dispute that information quickly and easily through the online Dispute Center.
Can Bankruptcy Prevent You From Being Evicted For Rent Arrears
Landlord and Tenant Rights When Bankruptcy Is Involved If youre struggling with debt and considering filing for bankruptcy, one of the many worries keeping you up at night might be the possibility of being evicted from your home due to unpaid rent. You might wonder: If you file for bankruptcy, can your landlord still evict
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My Tenant Filed Chapter 13 But Is Not Paying Rent What Can I Do
Again, the Landlord can ask the Court to get out of the Bankruptcy. They file a Motion for Relief from the Automatic Stay for nonpayment of rent. This will force the tenant to either pay or modify their plan to include those recently-missed payments. If they cant do either, you will be granted stay relief and can commence eviction proceedings in state court.
In Pennsylvania, both landlords and tenants have rights in bankruptcy when rental property and eviction actions are involved. You need an experienced bankruptcy attorney by your side to help you exercise those rights. Contact us today to schedule your free, no-obligation consultation.
Does California Law Require A Landlord To Do Anything Before Filing An Unlawful Detainer Proceeding
Yes, but not much. Before you can be evicted for non-payment of rent in California, your landlord must give you a 3-day notice to pay or vacate the rental. Yes, only 3 days.
In certain circumstances the landlord arguably doesnt even need to give you that short notice. The main such situation is if your fixed-term lease has expired and isnt being renewed. Also if your right to the rental premises is directly based on your employment, and that employment is terminated, youre not entitled even to this short 3-day notice.
Assuming youre entitled to the notice, if you are behind on rent payments the notice must give you the 3-day opportunity to catch up on the rent. But if the landlord believes that you are violating your rental agreement by committing a nuisance on or a waste of the rental premises, you may not get an opportunity to cure the problem.
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Will Filing Bankruptcy Affect My Apartment Lease
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In a Nutshell
If your rental payments are current, getting debt relief by filing bankruptcy will not affect your lease agreement. Learn how filing bankruptcy will affect your real estate lease.
Written by Attorney Andrea Wimmer.
If youâre current with your rental payments and plan to keep living in the rental, everything will stay essentially the same. This article will provide an overview of the type of information youâll need to provide on your bankruptcy forms and what typically happens with a residential lease after a Chapter 7 bankruptcy case is filed with the court. For more detailed information about leases and bankruptcy, check out our Guide to Leases in Bankruptcy.
Background Checks And Renter Blacklists
In addition to credit reports, many landlords hire companies to perform background checks that are more extensive than a credit report. Background checks can uncover information about criminal history, including sex offender status.
Some companies, including the major credit bureaus, offer “renters screening reports,” often called blacklists, of people whose names appear in the records of housing courts nationwide.
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Gather All Important Documents
A tenant should call their local superior court to gather all the filed documents including the Summons and Complaint, and Entry of Judgment. Additionally, the tenant should get together all documents in their personal records pertaining to the eviction such as eviction notices, and email and text correspondence with the landlord and/or property manager regarding the eviction.
Can An Eviction Be Reversed
If youâve received an eviction notice, you do have the opportunity to reverse it. You can do so by talking with your landlord and putting together an agreement to bring your rent current. Or, you can stop violating other lease terms that could beleading to the eviction.
Evictions can cost landlords thousands of dollars. Many might be willing to just accept the keys and a small payment to let you out of your lease because it saves them money. Always try to communicate and negotiate with your landlord to keep an evictionoff your record.
If the eviction goes to court, you can either defend yourself or pay a lawyer to do so. Your landlord will receive a summary judgment if you donât respond to the court filing
If you have questions about evictions, your credit report, and buying a house, a Clever Partner Agent can help you. Reach out to be connected with an agent today.
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Aug Eviction After Foreclosure Is There An Automatic Stay
Many clients face eviction from their homes after foreclosure. At first glance, even a bankruptcy filing might not help, since § 362 of the Bankruptcy Code states that there is no automatic stay of eviction where a pre-filing judgment for possession has been entered. Such clients may be safe, however. The plain language of this section does not apply to post-foreclosure evictions, and lenders/servicers/foreclosure purchasers instead must file for and obtain relief from the automatic stay before they can proceed with an eviction.
Section 362 states:
The filing of a petitiondoes not operate as a stay subject to subsection , under subsection , 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.
provides that proceedings trying to get possession of or exercise control over estate property are prohibited. Subsection provides for an imposition and extension of the stay if rent arrearages are brought current, and the first months post-petition rent is escrowed with the Court.)
Based on a plain reading of the Code, no.
Parsing the language of makes clear its limited applicability:
A proceeding by a lessor
in which the debtor resides as a tenant
Faqs About How To Get An Eviction Off Your Credit History
If youâre worried about how a past eviction will impact your odds of buying a house today, educate yourself about the eviction process and your credit report. Here are all the answers to your questions.
An eviction isnât something to take lightly. It can cause problems for years to come, both when renting again and in other areas. For potential homeowners, having an eviction on your record can hurt your credit while trying to get pre-approved fora mortgage.
What are your options?
An experienced real estate agent can help you evaluate your chances of being able to buy with negative information on your credit. It could impact your rates, terms, and the amount of a down payment youâll need.
Here are a few things you should know about evictions.
JUMP TO SECTION
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What If The Landlord Is About To File Or Has Just Filed An Unlawful Detainer Lawsuit
The automatic stay statute also says that the filing of a bankruptcy case stops the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor.
To do a residential eviction in California a landlord must file an unlawful detainer proceeding in Superior Court.
If your landlord has not yet filed an unlawful detainer summons and complaint before you file your bankruptcy case, the automatic stay prevents the landlord from starting the proceeding.
If the unlawful detainer proceeding had already been filed, its continuation is stopped by the bankruptcy as long as its not too late.
Can I Still Evict When Tenant Files For Bankruptcy
My tenant has filed for bankruptcy. Can I still proceed with an eviction action against the tenant?
In these situations where the tenant claims to have filed bankruptcy, a landlord must determine if that is actually the case. Oftentimes, it is at the eviction hearing that the tenant notifies the landlord for the first time that he or she has filed for bankruptcy. If the tenant cannot produce a case number or a document proving that he or she has actually filed for bankrutpcy, the landlord should attempt to proceed with the eviction hearing. Tenants often confuse talking to a bankruptcy lawyer with filing for bankruptcy. It may not be clear to the tenant that they still have to pay the bankruptcy lawyer before the bankruptcy filing will take place.
If the tenant has indeed filed for bankruptcy then the bankruptcy proceeding will bring the eviction action to a stop. If the landlord has already been awarded restitution at the eviction hearing, the tenant can still file for bankruptcy and stop the eviction process. Basically, the landlord is in a race with the tenant. The landlord must get the tenant out of the premises before the tenant files for bankruptcy. If the tenant files for bankruptcy while he or she is still in the premises, the tenant can stop the eviction proceedings.
The same landlord who wanted recourse for the tenants failure to respond found the following on the internet:
Additional language came to light as well concerning bankruptcies and tenancies:
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Can You Get Evictions Off Your Record
In addition to appearing on your credit report, an eviction also shows up on a background check. This could prevent you from getting a job, or being approved to purchase a home or condominium with a homeowners association.
To remove an eviction from a background check, find the county where the case was filed. Your landlord had to obtain a civil judgment to have you evicted. You can petition to have the record expunged or sealed, but you might have to pay the balance owedin full.
Don’t let a past eviction keep you from buying a home.
A Clever Partner Agent will help you weigh your options.
What If The Tenant Has Already Filed For Bankruptcy
If a tenant fails to pay rent or violates a term in the rental agreement, an automatic stay will prevent the landlord from giving the tenant a termination notice or from beginning the eviction process if the tenant has already filed for bankruptcy. The landlord can proceed with the eviction by asking the federal bankruptcy court to lift the stay. In most cases, the judge will lift the stay because a lease agreement has no effect on the value of the tenant’s estate.
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What Else Must The Landlord Do Before Getting A Judgment Of Possession
Immediately after the notice period expires, the landlord can file its unlawful detainer proceeding in California Superior Court. It files a summons and complaint, and serves it on you.
If you are personally served , then you have only 5 days to respond. When counting those 5 days you include weekend days, but not court holidays. If the fifth day falls on a weekend or holiday, the deadline to respond is the end of the next non-weekend/non-holiday day.
If you are served in part by mail, youre considered served 10 days after the post-marked date, with your response deadline 5 days after that.
If you dont respond in a legally recognized way by the deadline, the landlord can get a judgment of unlawful detainer, which is a court determination that the landlord is legally entitled to possession of the premises. At that point it can get the court to direct your local sheriff to enforce that judgment through a Writ of Execution or Writ of Possession.
