How does an automatic stay effect an eviction?
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How does an automatic stay effect an eviction?
I have a unlawful detainee case already filed in court. I have also served my tenant with court papers. Then 1 week before the case was to be heard, my tenant filed bankruptcy Chapter 7. They are is now 3 months past due rent. Is my tenant protected under the automatic stay? What should I do? How can I ensure that she is evicted?
Asked on April 2, 2011 under Bankruptcy Law, California
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
Bankruptcy can slow down the eviction process, but it cannot stop it. If a landlord sued their tenant for eviction and won a judgment for possession before the tenant filed for bankruptcy, then they can proceed to evict the tenant, even if the tenant then files for bankruptcy in an attempt to stop the eviction. If a landlord has not won a judgment for eviction before their tenant files for bankruptcy, the landlord cannot deliver a termination notice. As you are aware, this prohibition is known as the "automatic stay." However, the landlord can go to the bankruptcy court and ask the judge to "lift" (i.e. remove) the automatic stay so that they can proceed with the eviction (in most cases the stay is lifted within a matter of days).
Note: There is, however, an exception to the "automatic stay" if illegal drugs are being used on the premises but you did not indicate tist to be the case.
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