Evictions and the Automatic Stay in Bankruptcy

Whether filing for bankruptcy will stop an eviction will depend on whether your landlord has an eviction judgment.

Filing for bankruptcy might help you stop or slow down an eviction proceeding long enough to get caught up on your rent. You will need to act quickly, though. Whether filing for bankruptcy will have the effect that you hope for will likely depend on how far along the eviction proceeding has progressed. If, however, your landlord has evidence of drug use or fears damage to the property, a bankruptcy will not provide you with much relief.

Stopping an Eviction

Ordinarily, when you file a Chapter 7 bankruptcy case, a court order called the automatic stay prevents creditors from taking actions to collect debts. The stay, however, doesn’t apply in every case—including in some cases involving landlords and evictions. Whether or not the stay will give you more time in your residence will depend on three things:

  • how far the eviction process has progressed
  • the law of your state, and
  • whether drug use a dangerous condition existed within 30 days before filing your case.

Filing Before the Judgment

In most states, before you can be evicted the landlord must file a court case (often called an unlawful detainer action) and obtain a judgment or a writ possession from the judge. If you file a bankruptcy case before the landlord can get the judgment of possession, the automatic stay will stop the eviction—but not necessarily for long. The landlord can still file a motion asking the bankruptcy court for permission to evict you. Unless you have a good reason why the eviction shouldn’t take place, the court will typically grant the landlord’s request.

Filing After the Judgment

If you file for bankruptcy after the eviction court issues the judgment of possession, in most states, the automatic stay will not stop the eviction. There are exceptions.

A few states allow a renter to cure a rent default 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 those requirements, your rent will be up to date, the automatic stay will remain in effect, and your landlord will not be able to proceed with the eviction.

If You’re Using Illegal Drugs or Damaging the Property

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.

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