Bankruptcy filed--5 days later, eviction notice

[marquez]

I am helping my brother wade through the bk process (not doing it for him). He filed a skeleton petition for a chapter 7 on Jan 29. On Feb 5th, his landlord's lawyer filed an eviction with the local District court.  It was dated Jan 31st, and the notice stated that they had given him a notice to vacate on Jan 9. The Jan 9 notice was just a note from the landlord, not filed with the court, so it wasn't a judgment. The motion wasn't filed with the bankruptcy court, so it doesn't look like the stay was lifted or anything. The notice he received states that he will have a hearing on 02/21. His meeting of creditors is 03/08.

If I'm not mistaken, his landlord is in violation of the stay of collections, isn't he? My brother wants to make up arrears ( behind on Jan and now Feb rent) and keep his lease. He is starting a new job, so I'm reading up on how he can potentially keep his apartment. It seems he will have to convince the Trustee that he can afford the lease. In this situation, I'm not sure about arrears, however. Does the Trustee just make the call? And if so, does the landlord have to agree? My brother has not violated his lease in any other way except non-payment.

Thanks for your help. 

[Harry Seaward]

36 minutes ago, marquez said:

The motion wasn't filed with the bankruptcy court

What motion? Was the landlord listed as a creditor in his bankruptcy filing? 

[WhoCares1000]

The first thing to do is make sure the landlord is on the list of creditors for the BK filing. If not, then get them on there ASAP.

The BK court will probably allow the landlord to plea bona fide error in filing the eviction proceeding after the BK filing because the landlord has not been notified of the BK filing. I would send the attorney (or landlord if they are doing this themselves), a copy of the BK filing CMRRR ASAP so that they know it has been filed. On the 21st, you brother needs to go to the hearing (unless the court, not the landlord, informs him that the hearing is cancelled) and immediately bring up that the BK. That should stay the eviction proceedings until the BK proceedings are done.

Note, although there is an automatic stay, the landlord could petition the BK court to lift the automatic stay in his case. There would then be another hearing at the BK court to determine if the automatic stay can be lifted.

Also, it is possible (you can look at the lease) that a BK is an automatic breach of the lease and the landlord will simply wait for the case to be over. It is possible that your brother owes for February rent even after the BK since that accrued after the BK filing. I would suggest that you brother simply pay for February, leave January alone, and start to save up to move because the landlord will get him out one way or another. January will be covered under the BK so the landlord will not see that money unless your brother offers it at this point.

BTW, I am not an attorney so you might want to seek legal advice.

[Harry Seaward]

39 minutes ago, WhoCares1000 said:

There would then be another hearing at the BK court to determine if the automatic stay can be lifted.

From what I gather, the landlord petitions are almost always granted and the hearings are a mere formality. Which makes sense.  Unlike a bank, the landlord continues to lose actual cash money while the BK is underway. 

I would be planning on moving in the next 30 days. 

[Guest usctrojanalum]

From the facts you provided, does not sound like Landlord was notified of the BK - so they can't be found to violate any stay provisions. 

[WhoCares1000]

11 hours ago, Harry Seaward said:

From what I gather, the landlord petitions are almost always granted and the hearings are a mere formality. Which makes sense.  Unlike a bank, the landlord continues to lose actual cash money while the BK is underway. 

I would be planning on moving in the next 30 days. 

I think the same thing occurs with auto loans. The bank goes to the court to lift the automatic stay for repossession because of the same issue.

[Harry Seaward]

2 hours ago, WhoCares1000 said:

I think the same thing occurs with auto loans. The bank goes to the court to lift the automatic stay for repossession because of the same issue.

Yes, true. When I said "bank" I was thinking in terms of unsecured debt, but in the case of a car, like an apartment, it's an asset they could be making money on if another consumer took possession of it.

[marquez]

Thanks so much for your responses. The landlord was aware of the bk before they got the eviction judgment, apparently. My brother called to ask about it and they said they always get the judgment granted, even after tenants file bk. So, I assume @Harry Seaward is on target and that the court isn't concerned that they didn't get the stay lifted formally after the filing notice, since the landlord essentially confirmed as much. I appreciate all your helpful comments. I'll make sure he starts packing asap.

Thanks again!

[WhoCares1000]

Upon further research, it looks like the landlord is correct (although I wonder if the eviction exception applies because the BK case was filed before the eviction proceeding). I would suggest that your brother talk to a BK attorney at this point because there are many issues here.

[Guest usctrojanalum]

when you say 'eviction judgment' do you mean a judgment awarding possession of the premises back to the landlord? that would not be stopped by a BK filing.

[WhoCares1000]

1 hour ago, usctrojanalum said:

when you say 'eviction judgment' do you mean a judgment awarding possession of the premises back to the landlord? that would not be stopped by a BK filing.

According to the OP, the eviction hearing has not been held yet so there is no eviction judgement. The landlord filed for hearing about 2 days after the BK was filed (before the landlord was notified of the BK).