Evictions and the Automatic Stay in Bankruptcy

Bankruptcy can be beneficial if your landlord is evicting you from your home because a bankruptcy filing will stop many types of litigation, including eviction actions. However, you must act quickly. Bankruptcy won't help in most states if your landlord has already obtained an eviction or possession judgment. Also, the relief is often temporary, at best, because most landlords fight back and win the right to continue with the eviction after a bankruptcy filing.

If you're being evicted and want an answer quickly, skip to the "down and dirty" outline in the "How Filing for Bankruptcy Can Stop an Eviction" section below. If filing for bankruptcy seems promising, the rest of the article explains the process. Also, because you'll have to move fast, consider contacting a local bankruptcy lawyer for help.

Can Bankruptcy Help Me If I'm Being Evicted?

Yes, bankruptcy can help temporarily, giving you more time to stay in your home. But it might not offer as much protection as you'd like because bankruptcy laws don't help people stay in their homes long-term without paying their rent. It also won't help if the landlord has already completed the eviction court process and received a judgment against you.

How a Landlord Starts a State Court Eviction Case

In most states, a landlord must file and win a state court case (often called an "unlawful detainer" action) before evicting you. A bankruptcy filing stops the action in its tracks.

You'll learn about the eviction case when you receive a copy of the action, and if you file a response, you'll receive a trial date. At trial, the landlord must prove the case against you. If successful, the landlord will obtain a ruling from the judge that allows the landlord to evict you, often known as an eviction judgment or a judgment of possession. The landlord cannot evict without a judgment.

You must act fast. Once the landlord gets an eviction judgment, filing for bankruptcy won't help most people. Learn more about how evictions work and the rules for landlords and property managers.

How Bankruptcy's Automatic Stay Stops an Eviction

For most people, filing for bankruptcy before the landlord gets an eviction judgment is key to stopping an eviction. Here's why this works.

When you file for bankruptcy, the court issues an order known as the "automatic stay." This stay halts most creditors from pursuing collection lawsuits, including ongoing eviction actions.

The litigation concludes once the landlord obtains an eviction judgment, leaving no action for the automatic stay to prevent. If you were to file for bankruptcy after the state eviction case has ended, the landlord could take the eviction judgment to the sheriff and request your forcible removal.

While this rule applies in most bankruptcy cases, you'll want to familiarize yourself with two exceptions.

How Filing for Bankruptcy Can Stop an Eviction

Here's what you can expect if you file for bankruptcy while being evicted:

1. In Chapters 7 and 13, the automatic stay will stop the eviction action from proceeding.
2. If you file for Chapter 7, the stay will remain in place during the case or until the landlord successfully asks the bankruptcy court to lift the automatic stay. An exception exists for people living in states that allow tenants to stay after paying back rent (more details below).
3. If you file for Chapter 13, you'll have a "reasonable time," usually 30 days, to pay your back rent and negotiate an agreement with your landlord to withdraw the eviction and remain in your home.

The landlord has the advantage. Most landlords will file a motion asking the court to lift the automatic stay, and bankruptcy judges usually grant the request. It's important to understand bankruptcy's limitations and be prepared to move.

The Automatic Stay Exception

If you've filed for bankruptcy within the last year, the automatic stay might not stop the eviction, or the protection period could be substantially shorter. Specifically, it will last 30 days or not apply, depending on how many times you filed.

You can petition the court to extend or invoke the stay, but be prepared to demonstrate that you filed the previous cases in good faith and not as a way to avoid paying creditors. Learn more about multiple bankruptcy filings.

The Eviction Judgment Exception

A few states allow a renter to clear an eviction in bankruptcy even after the landlord gets a judgment of possession if you complete the following steps.

• 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 to 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 your rent arrears and file a certificate with the court declaring you're caught up on your rent.

If you can fulfill the requirements, your rent will be current, and your landlord won't proceed with the eviction.

Will Chapter 7 Bankruptcy Stop an Eviction?

Yes, but filing for Chapter 7 bankruptcy won't fix your eviction situation. The bankruptcy case will provide temporary relief only unless you live in a state that allows you to clear an eviction after the landlord receives a judgment (see "The Exception to the Eviction Judgment Rule" above).

Most Chapter 7 cases last four months, so that would be the longest you could reasonably expect the bankruptcy filing to delay the eviction. Also, many landlords won't wait for the Chapter 7 case to end.

Instead, the landlord will file a motion to lift the automatic stay or another document with the court explaining why the bankruptcy court should lift the automatic stay and allow the eviction to resume. Most bankruptcy judges will grant the landlord's request. You'll learn more below in "Can the Landlord Fight the Bankruptcy Stay of Eviction?"

Will Chapter 13 Bankruptcy Stop an Eviction?

Yes, the bankruptcy court will put the automatic stay in place if you file for Chapter 13 bankruptcy before the landlord receives a judgment. But again, the stay will likely be temporary because filing for Chapter 13 doesn't provide a mechanism tenants can use to stay in a home.

In Chapter 13, the landlord is entitled to receive the back rent within a "reasonable" time, which most courts interpret to be about 30 days. You'll likely have to leave if you can't work things out with your landlord during that time.

Consider hiring a bankruptcy lawyer. Lawyers negotiate with creditors regularly and might have better success speaking with your landlord on your behalf. A bankruptcy attorney can review your case and help you decide the best course of action for you.

Will an Online Emergency Bankruptcy Filing Stop Eviction?

You can file your bankruptcy case online anytime if you're up against a tight deadline. But you'll likely need a bankruptcy lawyer to help you.

The upside? You don't need to file all the forms when facing an emergency. For instance, suppose you must appear in eviction court within the next day or two. You can stop the eviction action by filing a shortened emergency or skeleton filing. The court will put the automatic stay in place and give you 14 days to file the remaining documents.

Consequences for not completing the filing. Pay careful attention to the 14-day deadline. If you don't file the remaining documents, the bankruptcy court will dismiss your case, and the landlord can continue the eviction action.

Can the Landlord Fight the Bankruptcy Stay of Eviction?

Yes, most landlords will ask the bankruptcy court to lift the automatic stay if you file a bankruptcy case before the landlord gets the judgment of possession. The landlord can do this in one of two ways.

The Landlord Can Ask to Proceed With the Eviction

The landlord can file a motion asking the bankruptcy court for permission to evict you. The landlord requests permission by filing a motion to lift the automatic stay. The court will typically grant the landlord's request unless you have a good reason why the eviction shouldn't take place.

The Landlord Might Think You Have Illegal Drugs or Property Damage

Suppose your landlord has reason to believe that you're using illegal drugs on the premises or that the property is in danger. In that case, it's unlikely that your bankruptcy will stop the eviction lawsuit for long, even if your landlord hasn't obtained a judgment.

The landlord can take these steps:

• The landlord must file a certificate stating that the eviction was filed because of illegal drug use on the premises or some other danger to the property within the last 30 days.
• The landlord can continue the eviction if you don't file an objection within 15 days.
• If you object within 15 days, the bankruptcy court will schedule a hearing within ten days. At this hearing, you can argue to the judge why the landlord should not be allowed to proceed with the eviction.

Need More Bankruptcy Help?

Did you know Nolo has made the law accessible for over fifty years? It's true, and we wholeheartedly encourage research and learning. You can find many more helpful bankruptcy articles on Nolo's bankruptcy homepage. For instance, Nolo articles will explain what bankruptcy can do, what you'll want to avoid before filing for bankruptcy, and more. Information needed to complete the official downloadable bankruptcy forms is on the Department of Justice U.S. Trustee Program website.

However, online articles and resources can't address all bankruptcy issues and aren't written with the facts of your particular case in mind. The best way to protect your assets in bankruptcy is by hiring a local bankruptcy lawyer.