Can I use bankruptcy as a means of preventing an eviction? 22 Answers as of June 26, 2013

My landlord is trying to kick me out of the apartment. I havent been able to make rent, but I want to file for bankruptcy. If I do this, will my landlord be forced to let me stay in the apartment?

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Mercado & Hartung, PLLC
Mercado & Hartung, PLLC | Christopher J. Mercado
Yes, but it is a very temporary bandaid. It won't solve the problem.
Answer Applies to: Washington
Replied: 8/10/2011
Bankruptcy Law office of Bill Rubendall
Bankruptcy Law office of Bill Rubendall | William M. Rubendall
Although there is an automatic stay created when filing a bankruptcy, it will not prevent an eviction.
Answer Applies to: California
Replied: 8/5/2011
Indianapolis Bankruptcy Law Office of Eric C. Lewis
Indianapolis Bankruptcy Law Office of Eric C. Lewis | Eric Lewis
Bankruptcy only stops an eviction if you file the back rent with the court; otherwise, no.
Answer Applies to: Indiana
Replied: 8/5/2011
Law Office of John C. Farrell, Jr.
Law Office of John C. Farrell, Jr. | John C. Farrell, Jr.
You are better off using your rights as a tenant to stay or to buy some time until you can find another place to live.
Answer Applies to: Massachusetts
Replied: 8/5/2011
Theodore N. Stapleton, PC
Theodore N. Stapleton, PC | Theodore N. Stapleton
Depends. Has your landlord gotten a judgment for past rent and eviction? I am happy to discuss your options with you.
Answer Applies to: Georgia
Replied: 8/5/2011
    Lake Forest Bankruptcy
    Lake Forest Bankruptcy | Anerio V. Altman, Esq.
    Yes, however, you must, absolutely, file Bankruptcy PRIOR to the ENTRY OF JUDGMENT in the eviction case. If the landlord acquires the eviction judgment, they can evict you without a further court order. Also, please note that the BK will stay the eviction, BUT the landlord can still get an eviction by acquiring BK court permission to proceed with the eviction. If they move fast, they can still get you evicted in about 30 days.
    Answer Applies to: California
    Replied: 8/5/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You don't get to live for free. If your landlord hasn't gone to court and gotten an order of eviction against you, then you can file for bankruptcy protection, and the automatic stay will prevent the landlord from beginning an eviction action against you. But you still must accept or reject the lease and if you are staying you have to pay. In the past, tenants could stop an eviction by filing for bankruptcy protection. Even if a landlord got a court order of eviction, a tenant could file bankruptcy and the automatic stay would stop the eviction. That's no longer the case. Under the current bankruptcy law, the automatic stay will not stop an eviction if the landlord obtained an order of eviction before you filed for bankruptcy. There are, however, two exceptions. The automatic stay will stop an eviction if, within 30 days of the date you filed for bankruptcy, you file a certification with the court and the landlord stating that under the state landlord-tenant law, you are entitled to "cure" or fix the problem that caused the eviction, and you deposit with the court the rent that would become due during the 30-day period after you filed for bankruptcy (since Georgia has no such clause that doesn't help), or you have paid all back rent that was due before you filed bankruptcy.
    Answer Applies to: Georgia
    Replied: 8/5/2011
    Law Office of Maureen O' Malley
    Law Office of Maureen O' Malley | Maureen O'Malley
    Only until he gets notice and can file for relief from stay. Bankruptcy.protects you from debt, but does not entitle you to live for free on someone else's back.
    Answer Applies to: Virginia
    Replied: 6/26/2013
    Law Office of J. Thomas Black, P.C.
    Law Office of J. Thomas Black, P.C. | J. Thomas Black
    Yes, so long as the landlord has not already obtained a final judgment for possession of the property, the automatic stay provided by 11 U.S.C. Section 362(a) prohibits the landlord from evicting you (temporarily). However, to stay, even for just the term of your lease, you would have to be in a chapter 13 case, and as part of your chapter 13 plan: (1) provide to "assume" the lease; (2) by paying all future rent timely; (3) catching up the delinquent rent promptly; (4) compensate the landlord for any losses he or she may have sustained by reason of your default; and (5) provide "adequate assurance of future performance" under the lease. See 11 U.S.C. Section 365. You cannot make the landlord renew the lease, so if you don't catch the lease up quickly and make things right with the landlord, you are going to be moving anyway at the end of the lease when the landlord refuses to renew the lease. Frankly, I wouldn't want to stay where I'm not wanted anyway. If the landlord has already obtained a final judgment for possession of the property, the stay does not apply unless you allege and prove some very specific things set out in the Bankruptcy Code. See 11 U.S.C. Sections 362(b)(22) and 362(l). If the landlord already has a judgment for possession of the premises (a Writ of Possession here in Texas) that is final and non-appealable, it is probably time for you to "call U-Haul." But if you still want to stay, you need to hire a bankruptcy attorney to go through the law with you sentence by sentence to see if you would even qualify. And be prepared to pay some serious bucks to the bankruptcy lawyer. It's likely not worth it. I actually did it for some folks in one case, and the Districk Clerk's office said that my case was the first one that they had every seen. Thank you
    Answer Applies to: Texas
    Replied: 8/5/2011
    Eric J. Benzer, Attorney at Law
    Eric J. Benzer, Attorney at Law | Eric Benzer
    No
    Answer Applies to: Maryland
    Replied: 8/5/2011
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    If you do not deposit the past due rent with the bankruptcy court when you file, you can stay only as long as it take for the landlord to get relief from the automatic stay, which could be in 5 to 7 days if the landlord moves fro relief from stay on an emergency basis and maybe 20-30 days if they do not.
    Answer Applies to: California
    Replied: 8/5/2011
    Melinda Murphy Dionne, PC
    Melinda Murphy Dionne, PC | Melinda Murphy Dionne
    Has your landlord terminated your lease? If the lease has not been terminated, you could file a Chapter 13 case and assume the lease. You would be required to cure any default but you would be able to do so over a reasonable period of time. If you cannot pay your current rent and an amount to cure the arrearage, bankruptcy will not help you stay in your apartment. The bankruptcy court will not allow you to continue to live in the property if you cannot pay your rent and the arrearage.
    Answer Applies to: Alabama
    Replied: 8/5/2011
    Grasso Law Group
    Grasso Law Group | Charles Grasso, Esq.
    If you file bankruptcy, the eviction process (done via unlawful detainer) will be stopped by the automatic stay. However, the landlord can still petition the court for relief from the stay if you do not make your rent payments.
    Answer Applies to: California
    Replied: 8/5/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    It will delay the eviction, but not prevent it. You would not have bankruptcy protection for any future months after you filed, so you would still owe those and they could move to have you evicted if you don't pay, plus they are entitled to the past due rent even though you are in bankruptcy.
    Answer Applies to: California
    Replied: 8/5/2011
    Carballo Law Offices
    Carballo Law Offices | Tony E. Carballo
    Yes, you can discharge the rent owed in the past (before filing the bankruptcy case) but if you do not pay after filing then the landlord can get you out with permission from the bankruptcy court or he/she can wait until your bankruptcy case is closed and evict you for rent owed after you filed a Chapter 7 bankruptcy case. Once the landlord files the eviction with the court and obtains an order of possession from the court then everything is different.
    Answer Applies to: California
    Replied: 8/5/2011
    Goldsmith & Guymon
    Goldsmith & Guymon | Marjorie Guymon
    You may be able to use a bankruptcy filing to stay an eviction proceeding. Review 11 U.S.C. 362(b)(22) and (l) which provide the automatic stay does not protect against the continuation of any eviction involving residential property UNLESS along with the filing of the bankruptcy petition the debtor files a statement under penalties of perjury that there are circumstances under which the debtor could cure the default and deposits with the clerk of the court the rent that would become due during the 30 days after filing the bankruptcy petition. Notice of the same must be given to the landlord. Within the 30 days following the filing of the bankruptcy petition the debtor must then file another sworn statement advising the court that the default has been cured and provide notice to the landlord. The landlord has 10 days to object and ask for a hearing to determine the validity of the cure. Subsequent to the hearing, the court will either issue an order providing relief from stay to the landlord or imposing the stay as to the debtor, depending on the outcome of the hearing.
    Answer Applies to: Nevada
    Replied: 8/5/2011
    The Law Offices of Kristy Qiu
    The Law Offices of Kristy Qiu | Mengjun Qiu
    Yes it will stop him from kicking you out. Additionally, you can discharge past due rent owed to him. Although you will have to pay for future rent and assume the lease, or he can kick you out right after your case ends (about 3 months from the day of filing).
    Answer Applies to: Florida
    Replied: 8/5/2011
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