Will Filling Bankruptcy Delay My Eviction?

Yes--filing a bankruptcy should temporarily delay your eviction, assuming it is filed prior to the termination of your tenancy. Different judges take different positions on when this actually occurs. Some say it is after the 3-Day Notice to Pay Rent or Quit expires, while others say it is when there is an unlawful detainer judgment entered. Regardless, in most cases the creditor will stop the eviction wherever they are in the process upon receiving the notice of bankruptcy. They will then seek permission from the bankruptcy court to proceed with the eviction process. This might take them anywhere from a couple of weeks to a couple of months to obtain. This is not the proper forum to get step by step advice on how to be your own attorney. You need to have a consultation with an experienced bankruptcy attorney who can properly advise and represent you. Mark Markus has been practicing exclusively bankruptcy law in California since 1991. He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization, AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.

If you do have reasons other than simply delaying the eventual eviction from your home, bankruptcy may be a useful tool to give you some more time to find a new place for your family, not to mention clear up some of those financial issues from your younger days. The amount of time you have before the landlord can forcibly remove you from the property depends on a few things. First off, it's VERY critical that you file bankruptcy BEFORE the landlord obtains a judgment for possession. If the landlord has the judgment before you file bankruptcy, the filing will not necessarily stop the landlord from proceeding with the eviction. When a landlord has a judgment for possession prior to a bankruptcy filing, the automatic stay that goes into place immediately upon filing, stopping most creditors from continuing their collection efforts, does not have any power to stop the landlord. To be sure, some sheriffs departments are reluctant to act without word from the court that they are acting in compliance with the law, but, at least in theory, a landlord could evict you right on schedule even with the bankruptcy filing. However, of the landlord does not have a judgment for possession, the bankruptcy filing WILL stop (delay is the better term) the eviction. The only way the landlord can proceed with the eviction is to formally ask the court to lift the automatic stay by filing a motion for relief from the stay. The amount of time you have after filing bankruptcy depends on several factors - how quickly the landlord files this motion, how quickly the court can hear it, how quickly the judge enters the order, and then how quickly the sheriff takes action to remove you. In most cases, you should be able to delay the eviction by a few weeks at a minimum, and you could potentially buy yourself a couple of months or more, especially where the landlord is slow or unsure of how to proceed. Filing bankruptcy is a powerful tool, but it can also be a double-edged sword that can be detrimental to the person seeking its protection in some cases. It is critical that you consult with an experienced bankruptcy attorney very soon to ensure that you accomplish your goals and avoid allowing the landlord obtain a judgment for possession.

If you file bankruptcy after you lose at trial in the eviction matter, the landlord can disregard the bankruptcy stay, which ordinarily halts eviction, and proceed with the lockout. So if you plan to file chapter 7 bankruptcy, which gets rid of most types of debt, do it before the scheduled trial date. A bankruptcy commonly will delay the eviction by 30 days or so. Most, if not all, of the past due rent will be discharged in the bankruptcy.

The first step in the process is to meet with a qualified bankruptcy attonrey who can review your information and counsel you on how to move forward. The second step is to make a decision on which type of bankurptcy you want to file. The third step is to take a credit counseling class and obtain a copy of your credit report. The forth step is to fill out the bankruptcy petition schedules and related documents. Next comes the filing of the bankruptcy with the bankruptcy court. If you did the bankurptcy yourself you will have to take the papers to the filing window at the courthouse and pay the filing fee, unless you plan to ask for a fee waiver. Once you file the bankruptcy the automatic stay is in effect and you will have to file a "notice of stay" in the unlawful detainer eviction action to stop that process and buy you the time you are looking for. After the filing comes the 341 hearing and you must take a debtor education class in order to obtain your discharge. The whole process from filing to discarge takes about 6 months. I hope that helps. For more information or to schedule a free consult please contact my office at (310) 515-7799