If I am filing Chapter 7 and am including my landlord, if I’m facing eviction what are my options?

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If I am filing Chapter 7 and am including my landlord, if I’m facing eviction what are my options?

I am not able to officially file bankruptcy until 12/17. I was served a 5-day notice to pay late fees or vacate the premises by 11/16. The landlord states that I am in default of the lease agreement. What can I do to stay in the apartment?

Asked on November 10, 2010 under Real Estate Law, Wisconsin

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If your landlord sues you for eviction and wins a judgment for possession before you file for bankruptcy, they can proceed to evict you. If you file for bankruptcy in an attempt to stop the eviction, typically a landlord can proceed with the eviction without having to ask a judge to lift the "automatic stay" (this is something that halts all legal proceedings against you after you file).  However, in a few states, and only in evictions based on non-payment of rent, a tenant can stop an eviction at the last minute by filing for bankruptcy, if the tenant files a certification and pays back rent and forward rent.  If landlord, can file an objection to the tenant's certification right away, they'll get a hearing in the bankruptcy court.  If they can convince the judge that the tenant's certification is not true, the court will lift the stay and they can proceed to with the eviction.

If your landlord has not won a judgment for eviction when before you file for bankruptcy, and you are behind in the rent, your lanlord can't deliver a termination notice, let alone start an eviction proceeding. This is die to the automatic stay.  In this event, they'll need to go to the bankruptcy court and ask the judge to "lift," or remove, the automatic stay before they can evict you.  In most cases, they'll get the stay lifted within a matter of days and then can proceed with eviction.

So basically, your situation comes down to timing.  How long will it take your landlord to file for an eviction?  If they do it right away (at least before 12/17), which is a virtual guarantee, then they can most probably proceed against you.


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