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DrakeLAW
DrakeLAW, Attorney
Category: Bankruptcy Law
Satisfied Customers: 442
Experience:  Attorney at Drake Law Firm PLC
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Q.1 Do I understand 11 US 362 (a) correctly that landlord

Customer Question

Hello expert,

Q.1  Do I understand 11 US 362 (a) correctly that landlord can file eviction AFTER tenant files BK chapter 7?   If No, then

Q.2:  (Time limit of Automatic Stay):   How long after tenant files BK can landlord file eviction due to non-payment of rent?

Thank you.

Submitted: 24 days ago.
Category: Bankruptcy Law
Expert:  DrakeLAW replied 24 days ago.

Hi, my name is ***** ***** I look forward to helping you, please give me a moment to review and possibly research answers to your question.

Expert:  DrakeLAW replied 24 days ago.

You cannot file for eviction after the tenant has filed 7. If you already have a judgment for possession, you can proceed. You will need to get relief from the automatic stay to file the eviction action. You can either file for it yourself and perhaps get relief in a month or wait until the discharge is entered in the case which ends the stay. That takes about 90 days after filing.

Any other question about this?

Customer: replied 24 days ago.

Thank u for your prompt answer.

1) But 11 US 362 (a) says automatic Stay applies to actions "Before" , please kindly explain or cite what makes you disagree (?)

2) If somebody else files Objection to discharge, then automatic Stay will drag on indefinitely (?)

Thank U.

Expert:  DrakeLAW replied 24 days ago.

1) Where do you see the word "before?" In 362(a)(1)?

2) Sure, that could happen, but objection to entire discharge is pretty rare. Usually an individual creditor file a complaint to have just its own debt non-discharged and the discharge still enters at the "normal" time.

Customer: replied 24 days ago.

1) Yes, 362(a)(1) (t says "Before" over and over

2) U mean after 90 days, someone else filing Objection does NOT affect this landlord's case? Therefore he is free from Stay?

Expert:  DrakeLAW replied 24 days ago.

1) Right, so what that is saying that anything that could have been filed before the case is filed is stayed/stopped.

2) That is correct. Entry of the discharge terminates the stay. If an individual creditor files a complaint for non-dishchargeability it will not prevent entry of the discharge and all creditors are relieved of the stay at that time.

...or landlord can file a motion for stay relief, will get it for sure and will get it pretty quick.

Customer: replied 24 days ago.
1). So u agree with my reading that Stay don't exist if tenant don't pay rent AFTER filing BK and landlord files eviction accordingly (?)
2) Can you cite that Discharge happens after certain time such as 90 days?
3). Assuming landlord needs the discharge, does he need to file something to confirm the discharge date before he can ask for anything else?
Thank u/
Expert:  DrakeLAW replied 24 days ago.

1) No, I don't agree. It is not quite that simple. I found this opinion that explains how it works pretty well. It might be helpful if you read this and then ask any followup questions? http://www.arb.uscourts.gov/orders-rules-opinions/opinions/barry/King2.pdf

2) I am not understanding your question in #2 above.

3) Sorry, I am not understanding question #3 either. I am not understanding why a landlord would need the discharge.

Customer: replied 23 days ago.

I read your cite but do not see its applicability because it deals with debt collection rather than eviction which is my topic here. He is not seeking the lost rent but just the eviction to take back his house.

1) Let's clear the facts:

Jul.1: Tenant filed BK chp 7 then didn't pay the rent of that month and the following ones.

Jul.26: Landlord filed for eviction for nonpayment of rent. Tenant kept silent throughout.

Oct.12: State court issues Default Judgment and Writ of Possession

Oct.30: Sheriff Office issues a letter saying that due to the BK filing, it put the enforcement on hold pending an "order" from BK court. What kind of "Order" is it? Order to Lift the Stay? Order to Evict? Order to Discharge BK?

Consequently

(a) Assumed that Stay exists like U said, does it nullifies the eviction and landlord has to refile the whole thing in the eviction court after the Discharge?

Or

(b) Based on what U said, Discharge, if in 90 days, already occurred on Nov.1, didn't it? If Yes, then can he ask for the Discharge Order from the BK court? But the counter clerk said "No, not yet discharged because another creditor filed Objection to Discharge". So what can Landlord do now?

Thank you/

Expert:  DrakeLAW replied 23 days ago.

Ok, so if you are concerned just with possession of house and not what past due rent can be collected I will base my answers on that.

1) Correct, the automatic stay prevented the Jul 26 filing of the eviction action. Yes, the Sheriff probably wants an order confirming the stay is lifted.

(a) Yes, the eviction is nullified and is void. It needs to be re-filed after entry of the discharge or the obtaining of stay relief.

(b) landlord really should seek emergency stay relief rather than being at the whim of others as far as when the discharge will be entered. Then re-file the eviction action.

Customer: replied 23 days ago.

1) In your answer 1 (a) above, do U mean there is a choice of obtaining a stay relief? meaning the eviction is not necessarily void?

2) This is surprising to me: Tenant doesn't raise the BK defense in eviction proceeding. Yet such Default has no value?

3) Notwithstanding the fact that the nonpayment of rent and the eviction occur AFTER bk filing, do u still insist that the TIMING of Stay covers all actions both before and after BK filing? This contradict 11 US 362 (a) (1) with the key word "before", doesnt it? I suspected professional bias and challenged two other BK attorneys but none could cite to support this timing extension at all. Can you?

4) "Emergency" Stay Relief: Is the continual loss of rent a valid cause? Is there a supporting cite?

Thank you/

Expert:  DrakeLAW replied 23 days ago.

(1) The landlord can request stay relief, is that what you mean by there is a choice of obtaining stay relief? The eviction is still void because stay relief was not first obtained.

(2) I know, it is frustrating, the tenant does not need to raise it as a defense. As a matter of federal law, the stay make any action in violation of it void.

(3) I think you are hyper-focusing on 362(a)(1) and the term "before." Remember, all those other subsections of 362 relate to what is stayed. The lease became property of the estate upon the filing. 60 days after the filing, the lease rejected since it was not specifically assumed. I sent you the link that I did because it explains all of this. Technically, upon rejection, the lease is abandoned back to the debtor and no longer is property of the estate meaning that the landlord can pursue state court eviction after that time without getting stay relief from the bankruptcy court. However, every opinion I have read, the court still makes reference to getting stay relief even after rejection even though, in my opinion, it does not seem necessary. So, I guess whether the landlord explicitly gets stay relief after 60 days or not depends on much of a risk it wants to take.

(4) Emergency only means expedited. Absolutely the continued failure to pay rent is cause for stay relief, no question. A case citation is not even needed, simply refer to 362(a) "for cause" stay relief. If the lease has been rejected, there is no question relief will be given.It MIGHT even be given retroactively to allow the July 26 eviction action to stand.

Customer: replied 23 days ago.

From the points above:

(1) You hold that Stay exists; but I need a cite; otherwise this may be a false assumption.

(2) Based on that assumption, you hold that a violation occurs.

(3) Back to Square One: Stay is expressly limited by362(a)(1) as applicable to actions that were taken "before" BK. But at this point I can only take your answer as is, meaning unsupported.

(4) Thank you for explaining.

Expert:  DrakeLAW replied 22 days ago.

I thought I did explain that. 362(a)(1) that contains the term "before" is just one of the things that the stay applies to. Another is 362(a)(2) which prohibits any act against "property of the estate." Upon filing the BK, the lease is property of the estate. Therefore, it is protected by the stay until it is no longer property of the estate.

I can send you a case that talks about leases.

Customer: replied 22 days ago.
You are stating only the first half of 11US362 (a)(2). The second half repeats the keyword "before".
Expert:  DrakeLAW replied 19 days ago.

2) ... the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;

Yes because the "before" in the second half of (a)(2) refers to a judgment obtained. The "before" does not refer to property of the estate as property of the estate obviously was owned prior to the creation of the estate.

Does this answer your question?

Customer: replied 19 days ago.
Again, I repeat the same point here, this cite supports my point, that Stay DOESNT EXIST if the eviction is filed AFTER.
Expert:  DrakeLAW replied 18 days ago.

It absolutely does not. The stay applies "AGAINST THE DEBTOR OR AGAINST PROPERTY OF THE ESTATE." The lease is, or at least was, property of the estate.

It can be said any more clearly or simply than that.

Does this answer your question?

Customer: replied 18 days ago.
U repeat a half truth which is untruth.
Your cite 11US362 (a)(2) in its entirely states:
(Quote). The enforcement against debtor or against property of the estate OF A JUDGMENT OBTAINED BEFORE THE COMMENCEMENT OF THE CASE UNDER THIS TITTLE.
Moreover,a judgment for eviction even BEFORE enjoys an exempt by subsection (b)(22). Let alone eviction AFTER.
Unless u can cite something else, you are denying the law we should close this thread here.
Expert:  DrakeLAW replied 17 days ago.

Right. It stays a judgment obtained before commencement of the case AND it stays enforcement against the debtor AND it stays enforcement against property of the estate. The lease is property of the estate.

I know a judgment for eviction obtained before is exempt but that has nothing to do with proceeding with eviction after against a lease that is property of the estate.

There is nothing else to cite. That is the answer. You left off the comma in your quote just before the "OF A JUDGMENT." The commas create an enumerated list separating "property of the estate" from "of a judgment obtained before the commencement of the case under this title." The commas matter to the interpretation of the statute.

Customer: replied 17 days ago.
If u base on "enumerated list", but u cannot cite that list, then yr answer is unsupported.
I think we should post the question to other BK experts to see if any can cite to support your opinion.
If nobody can, then my position holds and my question withdraws.
Thank you for trying.
Expert:  DrakeLAW replied 17 days ago.

Alright no problem. I did cite the list precisely it is 362(a)(2). I didn't just try, I precisely and correctly answered the question multiple times and in multiple ways but I understand if you feel you need a second opinion.

Customer: replied 16 days ago.
Please kindly post it back to other experts.
Thank u for understanding. Have a good holiday.