Evictions and the Automatic Stay in Bankruptcy

Bankruptcy's automatic stay order stops many types of litigation, including eviction actions, so filing for bankruptcy can help if your landlord is evicting you from your home. But only if your landlord hasn't already received an eviction judgment or judgment of possession, so you'll need to act quickly.

Also, in most states, Chapters 7 and 13 will only stop the eviction temporarily. Although you'd have a better chance of staying in your home by filing for Chapter 13 bankruptcy, you'd need to pay your past due rent within a month or so, and you might still be unable to stay.

Because bankruptcy won't cure all the problems that come with eviction, you'll want to understand bankruptcy's benefits and limitations, including:

• what bankruptcy can do if you're being evicted
• whether you should file for Chapter 7 or 13, and
• the likelihood the landlord will fight back after you file for bankruptcy.

If you are not familiar with how the bankruptcy chapters work, you'll also want to learn about the differences between Chapter 7 and Chapter 13.

Can Bankruptcy Help Me If I'm Being Evicted?

Yes, filing for bankruptcy can help if you're being evicted. But it might not offer as much help as you'd like, and it won't help at all if the landlord has already completed the eviction court process and received a judgment against you.

If you're currently being evicted, you're likely under stress and want an answer quickly. We can help. Start by reading 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 will provide the details you'll need to understand the process. Also, because you'll have to move fast, consider contacting a local bankruptcy lawyer for help.

How Filing for Bankruptcy Can Stop an Eviction

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

1. In both Chapters 7 and 13, the automatic stay will stop the eviction action from proceeding forward.
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.
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.

How a Landlord Starts an Eviction Case in State Court

In most states, a landlord must file and win a state 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 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 bankruptcy won't help most people. Learn more about how evictions work and rules for landlords and property managers.

How Bankruptcy's Automatic Stay Works to Stop an Eviction

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, the court issues an order called the "automatic stay." The stay stops most creditors from pursuing collection lawsuits, including pending eviction actions.

Once the landlord gets an eviction judgment, the litigation is complete, leaving nothing for the automatic stay to stop. If you were to file for bankruptcy after the state eviction case ended, the landlord would be free to take the eviction judgment to the sheriff and ask you to be removed forcibly.

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

The Automatic Stay Exception

If you've filed for bankruptcy within the last year, the automatic stay might last for 30 days or not apply at all, 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. 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 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 would be current, and your landlord wouldn't proceed with the eviction.

Can I Stop an Eviction by Filing for Chapter 7 Bankruptcy?

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 Filing for 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 Filing an Emergency Bankruptcy Case Online Stop My Eviction?

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

The upside? When facing an emergency, you don't need to file all the forms. 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 an additional 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 will be able to 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 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.

Talk With a Bankruptcy Lawyer

When you must move fast, it's best to enlist the help of a professional who knows how to help you. Most bankruptcy filers facing eviction use a bankruptcy lawyer to file their case. Many offer a free initial consultation and all bankruptcy attorneys have access to the online process that will allow you to file your matter within days.

Need More Bankruptcy Help?

Did you know Nolo has been making the law easy for over fifty years? It's true—and we want to make sure you find what you need. Below you'll find more articles explaining how bankruptcy works. And don't forget that our bankruptcy homepage is the best place to start if you have other questions!

We wholeheartedly encourage research and learning, but online articles can't address all bankruptcy issues or the facts of your case. The best way to protect your assets in bankruptcy is by hiring a local bankruptcy lawyer.