Can Bankruptcy Stop an Eviction?

Friday 5th of October 2012 01:39:30 AM

Many tenants (or former homeowners after foreclosure) ask me this question. First, it is important to understand that no landlord in California can help themselves to possession of the property. That is, they cannot change the locks and throw you out. Landlords must go through with an eviction action, known as an action for Unlawful Detainer. Unlawful Detainers are a court process which begins with the posting of a notice (3 day, 30 day, 60 day or 90 day, depending on the situation). Once the notice period expires, the landlord must file their eviction action, serve it upon you and get a judgment against you before the Sheriff can physically remove you and your possessions from the property. The process can take anywhere from 20-75 days. If your landlord locks you out without doing any of the above, you have a great case for wrongful eviction against them. Consult an attorney.

Moving on to the Eviction itself. Once the process has begun, filing a bankruptcy may stay the proceeding…. temporarily. A landlord has grounds to ask the Bankruptcy Court for permission to proceed with your eviction. In almost every instance that permission will be granted and the landlord is free to proceed. How quickly a landlord moves to obtain this permission, called relief from the automatic stay, is what will determine how much extra time you gain.

It is entirely possible that your landlord will just wait for your bankruptcy to be over because they don’t want to spend the extra money to seek relief from the stay.

If your landlord sees the eviction process through and has now applied to the Sheriff for a lockout date, is it too late to file? There is a technical legal answer and a real life answer. Technically, once judgment has been entered against you, you no longer have a right to stay. This means that filing the bankruptcy does not have to stop a sheriff’s lockout. What happens in real life, may, MAY, be a little different. Sometimes, sheriffs are very reluctant to proceed with a lockout if the tenant is in bankruptcy. The Sheriff’s office may postpone the lockout until the bankruptcy is over or the landlord has formally sought relief from the stay. I can tell you Sheriff’s responses have gone either way in many bankruptcy and eviction cases that our office has handled.

If you are being evicted, then your time to file bankruptcy may be very short. Consult an attorney as soon as possible.

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