I leased my house with a one year written agreement. After a year I notified the tenant that I am not renewing the lease because I have to sell the property. I gave them all the proper notices and I filed an eviction and because they didn't answer I was able to get the default judgment and writ of possession. On the day of the lock out an attorney contacted me on behalf of the tenant and notified me that they filed for chapter 13 bankruptcy and there is a hearing. I had to stop the lock out . While I was talking to the tenant's attorney , he mentioned that the only reason that they filed for bankruptcy was to stop the eviction and if we reach to an agreement he will stop the bankruptcy process . My question is that this looks like a fraud on bankruptcy forms because my understanding is that the only time someone can file for bankruptcy is when they are truly having a financial difficulties. In this case , 1- the eviction is not for non payment and 2- either they have a financial difficulty or not . The fact that if they can stay with their terms which is not about money &the amount of rent they will take their bankruptcy back suggests that they are lying on their bankruptcy.
You are correct. It surely sounds like the filing of this case is an abuse of the process. Contact the US Trustee (and the case trustee whose name and phone number is on the BK notice you rec'd in the mail). Tell the trustee what the lawyer stated to you on the phone. That said the automatic stay has a very limited life in this case. Consult with a BK lawyer using the Avvo tab "Find a Lawyer".
You are not my client and I am not your attorney. This advice is given in the spirit of the AVVO platform and is based on general legal principles. You become a client when you enter into a formal retainer agreement with me.
Talk to an experienced bankruptcy attorney that represents creditors in your area for a consultation. The Automatic Stay may not apply to your enforcement of a judgment for possession of the premises. See 11 USC 362(b)(22). There are special provisions that would make the Stay apply if the debtor took certain actions. Consult with an attorney and they can check the documents filed on PACER to find out.
Disclaimer: This answer does not constitute legal advice. I am admitted to practice in the State of California and the Federal District Courts in the Eastern, Northern, Central and Southern Districts of California only. My experience is in those jurisdictions only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. In reading any advice or opinion given you agree that I do not have all or the facts so that any statement here may not be complete or fully accurate. You must consult an attorney in your locale and make sure that they are fully informed of your situation and the facts of your case before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney-client relationship.
Mr. Steingraber and Mr. Holland are both correct. The action taken solely to delay the enforcement of your judgment would be considered an abuse of the Bankruptcy process. Bankruptcy can be used to stop the eviction of a debtor if the property is necessary for his/her reorganization, and provisions are made to provide for your claim, which was always "iffy" under the circumstances you described. However, the debtor must obtain that protection prior to the judgment for possession. You have that locked down. The attorney who admitted to you that that is the only reason the case was filed should be ashamed of himself, and I believe subject to sanctions. He does not have a good faith argument under the law to even sign the documents that he explained the purposes of bankruptcy and described their effect on the debtor's filing. A good faith argument does not include the words, "We will use Bankruptcy to coerce her into giving us what you want." Sorry such sleezy "attorneys" actually practice law. Most attorneys care about their reputations and are conscious of their duty of good-faith dealing with all parties. This one does not. Call the State Bar and initiate a complaint. Also, hire a Bankruptcy attorney focusing on creditor work to let you know what this "hearing" coming up is all about. most of us here on AVVO practice Debtor work. You can see that we are still concerned about the proper use of Bankruptcy. That is why we are willing to give you some direction and opinions.
I would appreciate it if you marked my answer as Helpful or Best Answer, if you believe it is true. Thank you! Also, please understand that I am not your lawyer and you are not my client, and the words that I write are not legal advice, as if given to a client of mine. You should not rely on my comments as though they are legal advice! Also, it is very important that you understand that my answer necessarily assumes certain things that may not be true. You should seek competent, local counsel to tell your full story so that you may obtain accurate, expert legal advice. I cannot be certain that my answer is correct, and neither should you, based on the limited information you have provided. I ask many questions of my clients before I render a final legal opinion. You should seek competent counsel to help you right away!
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