Evictions and the Automatic Stay in Bankruptcy

Filing for bankruptcy can provide relief by helping you stop or stay an eviction proceeding temporarily. It might even allow you to save up your past due rent and give you time to negotiate an agreement with your landlord to stay.

If you want to stop an eviction by filing for bankruptcy, you’ll need to act quickly. Filing for bankruptcy will have the effect that you hope for only if:

• the eviction process hasn’t progressed too far
• the law of your state will let you catch up on rent, and
• the landlord didn’t allege drug use or a dangerous condition in the eviction matter.

Find out whether Chapter 7 or Chapter 13 will work best for you.

How a Landlord Starts an Eviction Case

In most states, a landlord must file and win a court case before evicting you (often called an unlawful detainer action). You’ll receive a copy of the action and, if you file a response, you’ll be given 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 the judgment.

Here’s the tricky part. Once the landlord gets an eviction judgment, filing bankruptcy won’t be of any help for most people.

(Learn more about evictions in How Evictions Work: Rules for Landlords and Property Managers.)

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 you file 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 be able to proceed with the eviction.

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 (unless you’ve filed multiple bankruptcy cases within a short period—then it might last for 30 days, or not apply at all). 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 emergency situations, 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.

The Landlord Can Fight the Stay of Eviction

If you file a bankruptcy case before the landlord gets the judgment of possession, the automatic stay will be put in place and stop the eviction—but not necessarily for long.

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 Illegal Drugs or Property Damage

If your landlord has reason to believe that you’re using illegal drugs on the premises or that the property is in danger, it’s unlikely that your bankruptcy will stop the eviction lawsuit—even if your landlord hasn’t obtained a judgment. Here are the steps the landlord can take:

• The landlord must file a certificate with the court stating that the landlord filed the eviction because of illegal drugs being used on the premises or some other danger to the property that occurred within the last 30 days.
• If you don’t file an objection within 15 days, the landlord is free to continue the eviction.
• If you object within 15 days, the bankruptcy court will schedule a hearing within ten days, at which you can argue to the judge why the landlord should not be allowed to proceed with the eviction.

Bankruptcy and Evictions—the Limitations

It’s important to understand that while bankruptcy can buy you more time, bankruptcy in itself won’t stop the eviction permanently.

However, it can also help in these ways:

• Give you time to negotiate an agreement with your landlord that will allow you to stay in your residence.
• Erase qualifying debt so that you have more income to use toward housing expenses.

You should know that a bankruptcy filing appears on your credit report for up to ten years and can affect your ability to obtain rent, lease, or buy housing for a year or two (or more) after the filing.