How does an automatic stay effect an eviction?

Get Legal Help Today

 Secured with SHA-256 Encryption

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 10 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. 


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption