UD summons and Chapter 7 Dismissal

Asked over 1 year ago - Oxnard, CA

If a tenant files a Chapter 7 petition 7 days before a unlawful detainer action. I believe the UD has to be dismissed and re- served once the Landlord has relief from stay.

But what about If a tenant files a Chapter 7 petition 7 days before a unlawful detainer action and the tenant or Bankruptcy court request dismissal of the Bankruptcy case 14 days after unlawful detatainer case was filed.

Does the landlord have to still dismiss original UD action and re-serve just like a relief from stay or can the landlord just go in and get a judgement for possesssion since the Chapter 7 case was just was dismissed.

If case is dismissed the tenant still has the stay protection during the time frame before dismissal, correct?

Attorney answers (4)

  1. Brian Crozier Whitaker

    Contributor Level 17

    4

    Lawyers agree

    Answered . Landlord still has to refile and reserve the UD because the prior filing was void (since it was in violation of the automatic stay). Tenant has stay protection from the moment the BK is filed until the moment it is dismissed (often plus 10 days).

  2. Alexander Paul Zarcone

    Contributor Level 8

    1

    Lawyer agrees

    Answered . I agree with the previous response completely. There's no reason to mess around with the bankruptcy stay even if the case is now dismissed. Refile your UD action as soon as possible and you'll have a new trial date quickly.

    This does not constitute legal advice and is for informational purposes only. No attorney-client relationship has... more
  3. Javed Inam Ellahie

    Contributor Level 10

    Answered . If the bankruptcy case is still open you can file a Motion for Retroactive Relief from Stay (nunc pro tunc) i.e. effective as of the date that the bk was filed. If this is granted the UD action can continue.

    Legal disclaimer: Disclaimer: This answer does not constitute legal advice. I am admitted in California and... more
  4. William Earl Winfield

    Contributor Level 2

    Answered . The best thing to do in Ventura County is refile the Unlawful Detainer complaint. The original 3 day notice should still be good as long as the default was never cured.

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