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NOTICE OF STAY due to bankruptcy in unlawful detainer - do I need to answer or file Notice of Stay?

Santa Monica, CA |

Hello - I have a current Chapter 13 pending and has been since before I was served with summons and complaint for unlawful detainer after a foreclosure sale to a third party. I know having a pending bankruptcy filing puts a stay on any unlawful detainer proceeding unless the plaintiff can obtain a relief from bankruptcy court. My question is whether I should file an Answer stating that I have an active bankruptcy, file form CM-180 (Notice of Stay of Proceedings) or both, OR do nothing? I have tried to contact the opposing attorney and left a voicemail regarding my BK but have not heard back and the time to Answer is fast approaching. Please help!

Attorney Answers 3

  1. It sounds like you have gotten pretty far without hiring an attorney - but that distance might have ended. I would highly recommend you speak with an experienced California Chapter 13 bankruptcy attorney. While you might get the information you are looking for here, nothing replaces the real time human involvement of a consumer bankruptcy attorney.

    I am an attorney licensed to practice law in Ohio and some Federal Courts throughout the United States. I am not answering your question to solicit you as a client and there is a good chance that I am not licensed to practice law in the state that you reside. I hope that you find my assistance beneficial and, at most, use my advise as a finger pointing in the right direction. An attorney client relationship is not established by posting back and forth online. One of the most beneficial aspects of working with an attorney is the attorney client privilege which does not exist when you post personal facts online to faceless strangers. Hire an attorney if you want specific legal advise. If you cannot afford one, call your local bar association or search "(your city) legal aid" online. The fact that you took the time to post your question online likely means that you could use the aid of an attorney. Call around your area and see if any local attorneys offer free consultations.

  2. Assuming the automatic stay is still in effect in your case (you are not a serial filer and the case has not been dismissed), file and serve the Notice of Stay you have referenced. You do not need to file an answer. I don't believe you even have to pay a first paper filing fee, although I am uncertain about that. Be sure to attach a copy of the order from the BK court to your notice. Remember you cannot serve the Notice on opposing party, you need have a non-party adult prepare and sign the proof of service.

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  3. Mr Daymude is correct. A first paper fee is not required; and assuming the landlord was scheduled and received notice of your BK, you do not need to serve the CM-180 ... the creditor has an affirmative duty to terminate the proceeding (and, in fact, refile the UD Complaint after relief from stay has been obtained).

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