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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 25994
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I have tenant who has not paid past due rent and security deposit.

Customer Question

I have tenant who has not paid past due rent and security deposit. I have filed eviction and he has now filed bankruptcy. I want him out and his past due rent, what can I do to speed the process?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX X'X a Bankruptcy litigation attorney. Thanks for your question.

Once the bankruptcy is filed, you can't proceed until you file a motion to lift the automatic stay and get a court order from the bankruptcy judge allowing you to proceed.

Once the stay is lifted, you can go forward with the eviction.
Customer: replied 1 year ago.
Do I file a motion to lift the stay with the magistrate court?
Expert:  Roger replied 1 year ago.
No, the motion to lift the automatic stay is filed with the bankruptcy court. Here's a sample motion: http://www.insb.uscourts.gov/WebForms/newlaw/relief%20from%20stay%20and%20abandonment%20motion.pdf

I didn't find one for GA, but federal law is the same on this issue, so the form should be ok as a go-by. If you get an attorney to do this for you, he/she will handle it correctly.


Customer: replied 1 year ago.
The link doesn't work and I can't afford an attorney (why I'm here). But,I think this gives me enough info to go to the courthouse tomorrow and find what I need.
Expert:  Roger replied 1 year ago.
Hi - I found this link that is a sample motion for relief from stay regarding a leased premises that you can review and use as a go by: http://www.lexisnexis.com/documents/pdf/20090409011324_large.pdf

I hope this helps.
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 25994
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

I'd like to send you a draft of the request for relief. I used PACER and found that this guy has committed felony perjury based on the lease I have with him and his Bankruptcy filing. I found a motion for relief in one of his previous cases and used it as a draft. I just want your opinion, I am not employing you as my lawyer, just asking for advice. I'd rather not post my motion publicly.


 


 

Expert:  Roger replied 1 year ago.
Unfortunately, we can only communicate here - - and as you know, this is public. Thus, I couldn't review the document in a private manner.

However, if you have any questions, I'll be glad to answer them.
Customer: replied 1 year ago.

ok, for some reason my message back is getting rejected


 

Customer: replied 1 year ago.

try this:


 


https://docs.google.com/document/d/1z_XQ_gWbHbaPpNiwC47zhECXobhjb1HNI0jBxgSWmqE/edit?usp=sharing

Expert:  Roger replied 1 year ago.
I can't open the link. It's just a sign in page, but I don't have an account.
Customer: replied 1 year ago.

MOTION FOR RELIEF FROM STAY


 


COMES NOW the Movant, ---S INC, to show the court as follows:


 


1.


This is a motion under Sections 362(???) of the Bankruptcy Code for relief from the existing stay for the purpose of possession of residential property under lease.


 


2.


--- (hereinafter “Debtor”) filed this proceeding under Chapter 7 of the Bankruptcy code on May 8, 2013, and has ABANDONED the property located at---, FOREST PARK, GA 30297. A copy of said Lease is attached as (Exhibit “A”). Movant is attaching (Exhibit “B”) from Section 14 of Debtors filing, that shows the Debtor stated he did not control property owned by others. Movant also submits that per Schedule G (Exhibit “C”), Debtor again states he has no unexpired leases. Debtor lists under Section 13. B (Exhibit “D”), that he has debtor’s rents. It is unclear how one can claim he controls no property, yet has debtor lists rent as an expense. Movant has also attached the property record for the address listed on Debtor’s filing, (Exhibit “E”), based on the alone document, Movant gathers that Debtor does not own said property, nor reside at property owned by Movant that is leased to Debtor.


 


3.


WHEREFORE, Movant respectfully requests:


That this court terminate the automatic stay of Bankruptcy code Section 362 (???) to the extent that the automatic stay enjoins and restrains Movant from its rights under the term of lease. The terms of the lease state that the Debtor is to occupy the property and pay rent due. The Debtor has abandoned the property by means of taking residence at --- (Exhibit “E”), the same address listed on the creditor filing. Movant also prays that the court grant absolute exemption from all future bankruptcy claims of Debtor based on Debtors past history of multiple filings over the last decade..


 


4.


As of 5/22/2013 the Debtor is in arrears of $2719.00 for rent, security deposit, legal and investigative fees. Movant shows that good cause exists for granting Movant relief from the automatic stay due to loss of income from an abandoned property, and right to collect said debt.


 

Customer: replied 1 year ago.

sorry, I think i sent it twice - I'm trying to determine the specific code for a property under lease violation or perjury violation.

Expert:  Roger replied 1 year ago.
Section 362 is the proper section to seek relief from the automatic stay.

I don't know that there's a specific bankruptcy code section for a lease violation. I'll see if I can find something on perjury.
Customer: replied 1 year ago.

Perjury would be the best to find, I think that would then automatically support lease violation for eviction.

Customer: replied 1 year ago.

What did you think of the draft? Am I going to get laughed out of court? Also, considering the circumstances...do you think I should retain a lawyer, or would a letter to the trustee and the judge with my proof of perjury suffice? It's solid proof in my opinion, and i think I can get neighbors testimony if necessary.

Expert:  Roger replied 1 year ago.
Here's the US Code section for perjury: http://www.law.cornell.edu/uscode/text/18/1621

I don't find a rule specific to bankruptcy proceedings, so I think this is it as it applies to federal proceedings.
Customer: replied 1 year ago.

i'm filing a motion with the bankruptcy court, Wouldn't I need to state some violation of the code of bankruptcy for relief? ? As that is my ultimate goal, to be relieved of the inability to collect the debt and continue eviction.

Expert:  Roger replied 1 year ago.
Perjury is a crime, so I think this would apply. It's the only one I find.

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