Posted by Jim Locker on January 12, 2001 at 15:31:30:
Interesting. Perhaps this law is being interpreted differently in different jurisdictions?
I am basically positive of what I am saying, for here in Ohio.
Perhaps there is some interaction between federal and state laws that makes it different in Fla than in Ohio?
Oh well. I don’t know that answer…
Eviction halted by tenant’s Bankruptcy - Posted by Percy
Posted by Percy on January 11, 2001 at 17:49:01:
I was in the process of evicting a no-paying tenant and the day before the JP court date, they file Chapter 7 Bankruptcy. This halted the eviction and my attorney says I now need to file an ‘Automatic Stay’ in the Federal Bankruptcy court. This can take 15-20 days and will cost several hundred in attorney’s fees.
I suspect the tenants will wait until BK court date and drop the filing. Any good ideas to speed things along?
Re: Eviction halted by tenant’s Bankruptcy - Posted by Tim Jensen
Posted by Tim Jensen on January 11, 2001 at 22:13:44:
Percy,
Pay the tenants to leave.
Re: Eviction halted by tenant’s Bankruptcy - Posted by dewCO
Posted by dewCO on January 11, 2001 at 20:12:32:
Pay them to leave, but don’t give any money until they are all out with everything, and of course be ready to change the locks immediatley.
Re: Eviction halted by tenant’s Bankruptcy - Posted by Jim Locker
Posted by Jim Locker on January 11, 2001 at 18:11:41:
John Boy has given you the “straight skinny”.
The thing you have to remember is that if the tenant is still in the apt, and still not paying, you can IMMEDIATELY commence a new eviction action against him.
Start with the statutory notice (however many days are needed in your state), then file a NEW eviction against him as soon as you can.
This will enable you to get him out and probably will go faster and cost less than trying to get your current eviction action removed from the Chapter 7.
One thing to keep in mind; once you start the new eviction action, DO NOT ACCEPT ANY MONEY FROM THE TENANT. If you do, this will probably nullify the eviction, since you will only be evicting over a few days rent (the unpaid rent from the time he filed the Chap 7 and you were notified). If you do accept money, make sure you get it all, in one lump sum (no checks) including that which he filed as part of the bankruptcy, and your court fees, and your late fees.
Cut no deals because you will inevitably be on the losing side of any deal, with that Chap 7 sitting there.
Re: Eviction halted by tenant’s Bankruptcy - Posted by JohnBoy
Posted by JohnBoy on January 11, 2001 at 18:02:07:
It’s not an “Automatic Stay”. That’s what the BK court has issued against you to stop from proceeding with the eviction. What you need to do is file a motion to lift stay with the BK court.
I don’t know why your attorney is charging you several hundred for this. It’s a simple paper to file to the court. Unless your tenant has their attorney object to the lift of stay, the judge will grant it for you. If your tenant is just a renter and has no other interest in the property like an option to buy, then they will have no grounds to stand on by trying to object to the stay. If they are behind in rent the judge would more than likely lift the stay if you motion the court to lift it. Otherwise, plan on up to 90 days before the BK gets discharged while your tenant lives their rent free!
One other thing to know. The tenant’s BK will only discharge the debt owed to you up until the filing date he filed the BK with the court. Any debt he runs up AFTER the FILING DATE, he will remain liable for! This is why the judge will usually lift the stay on a rental if the tenant is not paying the rent!
So if your tenant drags this out, remember, you can go after him for all monies owed that accrue past the filing date, not the discharge date.
Check with another attorney to file the “motion to lift stay” for you. You should be able to get that done for about $100!
Re: Eviction halted by tenant’s Bankruptcy - Posted by Jim Locker
Posted by Jim Locker on January 12, 2001 at 07:37:23:
Pay weregild. Pay extortion.
I know, some people recommend that. I would NEVER under any circumstances do that.
Re: Eviction halted by tenant’s Bankruptcy - Posted by JohnBoy
Posted by JohnBoy on January 11, 2001 at 19:08:26:
My understanding is that even if the tenant is not paying rent after filing a BK, you can not just start another eviction proceeding. You are forbidden to take any action against them or even make any contact with them of any kind other than contacting their attorney. You must get a lift of stay before you can proceed with doing anything. Maybe this differs from federal law vs. state laws pertaining to BK, I’m not sure, I was just assuming this was under the federal law. Some state BK laws may be different. Best to check with an attorney before just filing another eviction or you could end up in big trouble with the BK court for violating their stay.
Hey, he wanted suggestions… - Posted by dewCO
Posted by dewCO on January 12, 2001 at 18:46:22:
so I gave him one. Whatever works for each individual.
Re: Eviction halted by tenant’s Bankruptcy - Posted by JPiper
Posted by JPiper on January 12, 2001 at 07:43:48:
I think this is a strategy that might pencil out…but I’m with you…I wouldn’t pay some deadbeat to leave even if it cost me some money.
JPiper
Re: Eviction halted by tenant’s Bankruptcy - Posted by Jim Locker
Posted by Jim Locker on January 12, 2001 at 07:36:21:
The point is that the bankruptcy stops action to collect debts prior to the bankruptcy. It says nothing about debts incurred after the filing.
If the tenant remains in the property after filing, and does not pay, then he has incurred a new debt.
Therefore, the NEW eviction filing is only on the NEW debt, not any of the previous debt that has been stayed.
Perfectly legal. The one place where the law varies from state to state is on whether the LL has to accept payment which is tendered during the notice period.
If the tenant offered to pay the amount of rent from the date of the bankruptcy filing, here in Ohio I would not have to accept it. Whether someone in another state would have to accept it or not is an issue of state law.
Re: Eviction halted by tenant’s Bankruptcy - Posted by JoeKaiser
Posted by JoeKaiser on January 12, 2001 at 14:33:15:
I’m with Jim . . . not even a nickel.
Joe
Re: Eviction halted by tenant’s Bankruptcy - Posted by Jim Locker
Posted by Jim Locker on January 12, 2001 at 07:46:24:
What do you mean by “pencil out”? You mean it would work? It would…if you could stomach it…
Re: Eviction halted by tenant’s Bankruptcy - Posted by JohnBoy
Posted by JohnBoy on January 12, 2001 at 08:15:07:
That makes sense to me. I just went through a case like this, only in my case the tenant “had” an option to buy. The only thing is, the tenant’s option had expired a few months prior to filing. The tenant was on a month to month since the option and prior lease had expired. I was told by my attorney and the trustee, another attorney, that I could not do anything without getting a lift of stay before proceeding with any further actions.
I then filed the motion to lift stay, which the BK judge granted immediately without even having a hearing on the matter. The tenant’s attorney then complained to the BK court that this was in violation of his clients rights to just issue a lift of stay without allowing them to respond to the lift of stay. The judge then haulted the lift of stay because the tenant’s attorney had objected claiming the tenant had an option on the property giving the tenant an interest, which they didn’t have since the option had expired. Besides that, the tenant had filed chapter 7 without claiming any interest or intent to secure any interest in the property. Regardless, the judge set a hearing on the matter and had a phone conference with my attorney and the tenant’s attorney. At this point the tenant’s attorney backed off since they had no case or grounds to fight it. But that allowed the tenant to stay in the property another month while this was dragged on longer. By the time I got the stay lifted, his BK was discharged a couple of weeks later and they had abandoned the property.
Goes to show how many morons are out there for attorney’s if what you’re saying is correct. But the way it was explained to me was that it didn’t matter that the tenant wasn’t paying after the filing date since he was still a debtor of mine. I was not allowed to make any contact with them for any reason. So even if I filed a new eviction for new debt after the filing date, I would be making contact with the tenant and that was not allowed, period! I was told I still needed to get a lift of stay before I could file for a new eviction. The BK appointed trustee said I had two choices. Get a lift of stay or just wait 90 days until the BK is over with and discharged. THEN, I could evict and go after the tenant for any monies owed beyond the filing date.
So are you saying both attorney’s were incorrect in telling me I could not take any action for any debt incurred after the filing date without first getting a lift of stay or just waiting until the BK was over with and discharged? It certainly wouldn’t surprise me, but I wouldn’t want to risk creating more problems by taking further action after being told I couldn’t. I need to look into this more.
Re: Eviction halted by tenant’s Bankruptcy - Posted by Jim Locker
Posted by Jim Locker on January 12, 2001 at 09:39:18:
I am not a lawyer, so I will not offer any comments on your attorney telling you to not contact tenant for any reason. My thought is that such a restriction, if true, would violate your right and obligation to maintain the property in a safe and sanitary condition, and could cause you to run afoul the law in other areas of landlord/tenant law under circumstances where that law would require you to contact the tenant or make repairs, or whatever.
In any case, I have encountered the exact situation you describe here except my tenant was in an apartment. He took Chap 7 after I filed eviction. I proceeded in exactly the manner I have described here, clearly stating that I was evicting for debt incurred after the bankruptcy filing.
It went through, since I was not attempting to collect on any debt that was included in the bankruptcy. This tenant also was on a month to month since his lease was up.
Leases and Bankruptcy - Posted by ChrisFL
Posted by ChrisFL on January 12, 2001 at 15:21:20:
I have been told by our company’s legal department that rent charged after a bankruptcy filing but before the discharge is included in the bankruptcy. Their reasoning was that the lease was listed as a debt in the filing. Not the same as a month to month, I know, but there it is. For what it’s worth, this is a large multi-national corporation, with a large legal department, probably none of which are bankruptcy or real estate attorneys.
ChrisFL
Re: Leases and Bankruptcy - Posted by Jim Locker
Posted by Jim Locker on January 12, 2001 at 15:37:25:
As I think about it, my lease also contains a clause that says it is void if the tenant declares bankruptcy. So, when the tenant does that the lease is automatically void and the tenant becomes a tenant-at-will, without a contract.
Which would change the rules WRT getting them out.