The issue here is whether or not your lockout violates the 11 USC sec 362 "automatic stay." The purpose of the automatic stay is best explained in the following oft-quoted passage from the legislative history of the Bankruptcy Code (HR Rep No. 95-595, 95th Cong, 1st Sess (1977), reprinted in 1978 US Code Cong & Ad News 5963, 6296):
If your lock out operates as a collection effort (i.e., to encourage payment of past-due rent), or otherwise impairs the debtor in possession/trustee from obtaining the property of the bankruptcy estate (e.g., office equipment, trade fixtures, inventory, etc.), then it violates the automatic stay and you must unlock the doors.
Hope this helps.
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The lock out occurred prior to the bankruptcy filing - does that make a difference....and do we have a right to just hand him a 48-hour eviction notice upon unlocking the door as the lease states?
thanks for your help
It doesn't matter that the lockout was prior to the filing, because the lease still has value, and it is now the property interest of the bankruptcy estate. It would be different, were the lockout by the sheriff subject to an already issued writ of possession. That would mean that the lease and tenant's possession was terminated before bankruptcy.
Now that the bankruptcy is filed, you cannot attempt to evict, because that interferes with the debtor's reorganization efforts.
That's my view. I realize you've been getting differring opinions. But, if you want to be safe, then you would ask the court to lift the stay before proceeding with any further actions.
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