I am confused by all of the rules. Whether I would have to pay rent to stay? whether I would be liable for rent due after the filing, etc. I plan to see a bankruptcy attorney but would like some insight first. I am about 1 month behind on my rent, lost my job and need to file chapter 7 for other legit reasons (credit cards I can't pay, etc.) but could definitely use some extra time in my home if possible. This whole situation stinks. Thanks for your insight.
Chapter 11 Bankruptcy Attorney
Residential rent issues are tricky in bankruptcy, but you will be afforded at least some delay. Note that this is phirric in that you will have to pay all post filing rents as they come due. Also a landlord may file a motion for relief from the stay (they stay is what protects you) in order to get you out faster. Seeing the bankruptcy attorney you plan to see is highly adviseable as he can give you more information as it applies to bankruptcies filed in California.
You will have to keep paying rent to stay and the landlord can pursue an eviction action with the bankruptcy court's approval. You'll be given some time to catch up as a result of the bankruptcy stay. Work with your landlord or have your bankruptcy counsel do so to address things.
Evan A. Nielsen
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I agree with each of my colleagues answers. I write to point out that having an unlawful detainer on your credit report, or other landlord report to which you future landlord may subscribe, will make it very difficult for you to find other acceptable rental housing.
The UD is shielded from reporting for only 60 days from filing. So, despite the looking glass view of living "rent free" for a month or two, it probably will cost you in the end.
One other point -- a BK filed after a judgment of possession will discharge the prior rental obligation but NOT delay a subsequent eviction of a residential unit.
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You would be able to delay your eviction. However, depending on your Landlords sophistication the delay would be only for a about ten days.
Yes, you would be liable for any rent past the filing date of your bankruptcy.
Jonathan Leventhal, esq.
Leventhal Law Group, P.C.
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Real Estate Attorney
Timing in residential eviction cases is critical. If the landlord gets a judgment against you and then you file bankruptcy, the bankruptcy code permits the landlord to disregard the automatic stay and continue with the eviction process. Also, there are provisions under the bankruptcy code which permit the tenant to catch up on the rent and avoid eviction. Generally, in Los Angeles County Superior Court, if a tenant named in an unlawful detainer action files bankruptcy, the eviction is stayed (or halted) until the landlord obtains relief from the stay, which may take only a few days from the date of filing in some bankruptcy courts. Once the lender has obtained relief from stay, the unlawful case goes to trial and the landlord obtains a judgment for possession only, that is, no money damages (although, in theory, the lender could collect for post-petition holdover damages). If you manage to strike a deal with the landlord to seal the record, it will never appear in any eviction database.
Chapter 13 Bankruptcy Attorney
The Chapter 7 bankruptcy must be filed before the creditor (in this case the landlord) obtains an unlawful detainer eviction judgment. As soon as you are served with the unlawful detainer complaint you have five days to answer it. You must file the bankruptcy before those five days are up or the landlord will be able to obtain a default judgment and can in essence ignore the bankprutcy and proceed to enforce the unlawful detainer judgment. While you are in bankruptcy you do have the right to reinstate the lease if you pay all of the back rent in a lump sum and continue paying the rent going forward, however the landlord does not have to let you do this and can proceed with the eviction. The landlord will have to do a motion for releif from stay, which takes at least a month. If the landlord acts as fast as possible you are looking at probably 3 months from the filing of the bankruptcy until the sheriff showes up at your door.