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We have a writ of possession to a com. property. The tenant filed bankruptcy 2 days prior to lockout.Can we proceed with lockout

Los Angeles, CA |

Tenant filed bankruptcy 2 days prior to lockout. Can we proceed with lockout or do we have to go through bankruptcy court? We have writ of possession.

Do we still have to get relief from stay even though we already have the writ of possession, I was reading the Department of Consumer Affairs (CA) website states that if the writ of possession has been given, we can proceed with the lockout....Thanks in Advance

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Attorney answers 3

Posted

You must seek relief from the automatic bankruptcy stay or other approval before proceeding. Otherwise, you could face very serious sanctions from the bankruptcy court.

I will edit the practice area, so you can hear more specifics from bankruptcy lawyers.

Asker

Posted

Do we still have to get relief from stay even though we already have the writ of possession, I was reading the Department of Consumer Affairs (CA) website states that if the writ of possession has been given, we can proceed with the lockout....Thanks in Advance

Brad S Kane

Brad S Kane

Posted

The Department of Consumer Affairs states: Bankruptcy is a complicated legal specialty and explaining it is beyond the scope of this booklet. However, here is some basic information about bankruptcy as it relates to unlawful detainer proceedings . . . The automatic stay normally does not prevent the landlord from enforcing an unlawful detainer judgment that was obtained before the tenant's petition was filed. In some cases, however, the tenant may be able to keep the stay in effect for 30 days after the petition is filed. http://www.dca.ca.gov/publications/landlordbook/evictions.shtml It is very dangerous to rely upon "basic" information, which is admittedly incomplete in a very technical area of the law.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

You need to seek relief from stay, despite your judgment for possession, because the tenancy is in commercial real property. 11s USC 362(b)(23)

Posted

I agree with Mr. Kane. You need to seek relief from stay, despite your judgment for possession, because the tenancy is in commercial real property.

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Posted

I agree. It's so easy to sue people for not obtaining relief from stay. That's why, a big bank, even when entitled to relief automatically still double checks with the court by filing a motion. You don't want to risk it!

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here. Please visit my web site: www.avanesianlaw.com for more information about my services.

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