We had a tenant move in Sept 1, gave a check for first months rent and deposit. We recently discovered the check had been returned and funds not paid. Tenant has filed bankruptcy only including Sept, October and November rent. Court date is December 23, which means at that time she will owe December rent, the deposit that is unpaid and not claimed in bankruptcy. This means she's lived in our property without ever paying a dime. I have filed a claim, but assuming the automatic stay is lifted at the court date, when can i evict her and how long does she have to pay or move? Her December rent and deposit as stated will not be included in her bankruptcy. The 3 months rent is.
When the order lifting the stay is signed, you may run down to eviction court to apply for relief. Hope this perspective helps!
The bankruptcy court should give you stay relief on December 23rd. You should take a copy of the order from the bankruptcy court to the state court, where you will refile the eviction. The court clerk will probably want some written proof that you have obtained stay relief against the debtor in the bankruptcy court, before they will accept your new eviction filing,.
What court date are you referring? Have you filed a Motion for Relief from Automatic Stay. What chapter of bankruptcy did she file (chapter 13 or chapter 7). If you haven't filed a Motion for Relief from Stay, there is no hearing in the normal process that would occur where the stay would be lifted.
It is not clear from your post if you filed the Motion for Relief, but if you did, did you ask for waiver of Rule 4001(a)(3)? If not, then the stay doesn't lift until 14 days AFTER the entry of the order lifting the stay. However, it is not clear from your post that you filed the Motion. Based on your timeline, it sounds like the tenant filed chapter 13 bankruptcy and the hearing on December 23 is probably the confirmation hearing. If that is the case, the stay is NOT going to get lifted at that hearing. Most likely, it will be continued (postponed). As of writing, It is only December 3, she could still pay December's rent and then use chapter 13 to cure the 3 months of missed payments.
"(3) Stay of Order. An order granting a motion for relief from an automatic stay made in accordance with Rule 4001(a)(1) is stayed until the expiration of 14 days after the entry of the order, unless the court orders otherwise."
The automatic stay does not apply to tenants. Since tenants have no ownership interest in the asset there is not automatic stay in place through a bankruptcy.
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