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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 111550
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Eviction and tenants have already defaulted. Sherriff Office

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Hello again,
This is California eviction and tenants have already defaulted. Sherriff Office receives the writ of repossession but says it cannot enforce the eviction because tenants submit to them the bankruptcy paper.
Question: Consequently can tenants stay on without paying the rent and laugh, or there is a procedure to enforce the eviction?
Many thanks.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

If they have filed bankruptcy, you now need to go to the bankruptcy court where they filed and file a proof of claim in the bankruptcy court AND a motion for relief from automatic stay and ask the bankruptcy court to allow enforcement of the judgment of possession. If the bankruptcy court agrees, and in most cases they will, they will lift the automatic stay and then the sheriff will be able to serve the writ of possession and remove them forcibly from the premises.
Customer: replied 1 month ago.
By proof of claim, do u mean proof that tenants did not pay the rent? If so, is the Complaint and the Default Judgment sufficient?
Thank you for your reply.

You need the original of the court judgment which you attach to the proof of claim form that you get from the bankruptcy court website or the clerk of the court. You also file your motion for relief from Automatic Stay to get the stay lifted and ask the court to allow possession and in the alternative to allow the trustee to pay you back rent and put up a cash bond for future rent until the court will allow them to be physically removed.
Customer: replied 1 month ago.
This Q now extends hence i owe you a bonus. Usually how long does it take to obtain the Relief from bankruptcy court?
Is that Relief sufficient for the sheriff office to enforce the writ now on their hand, or there is more to be done?
Customer: replied 1 month ago.
Or can I bring this issue back to the eviction court to finalize it because defendant did not submit their bankruptcy paper for their defense, instead they did not answer hence was defaulted by eviction court hence eviction should be treated as done.
Customer: replied 1 month ago.
Please note that their had the bankruptcy paper months before i filed for eviction.
Thank you for your reply.

Generally, the hearing on relief to stay is set within 30-45 days of you filing for it. Once you have the relief from stay you need to file in the eviction court again for a writ of possession and attach the bankruptcy court order lifting the stay in bankruptcy. They did not have to answer that was your choice. However, if this was included in the bankruptcy you still need to file a creditor claim in the bankruptcy court and the motion for relief from stay
Customer: replied 1 month ago.
Repeat from above:
Fact: They filed for bankruptcy months before i filed for eviction.
Question: Can I bring this issue back to the eviction court to be reaffirmed because defendant did not submit their bankruptcy paper for their defense, therefore the default judgment was done, and the writ of repossession stands intact?
Customer: replied 1 month ago.

Hello again,

Proof of Claim: Is it Form 410 from US bankruptcy court? But it has nothing to do with eviction. It s about the amount of debt which was undisputed in the eviction court (Default).

1) The Complaint for eviction does not ask for money but for the return of the rental.

2) The Default Judgment and the Writ of Possession do not order the debt to be paid but only eviction.

I dont understand this at all. Can you cite something to say that eviction cannot be enforced because tenant had filed bankruptcy before?

Many thanks/

No, you cannot bring the fact that they did not answer your suit and raise the bankruptcy in your suit up in the state court.

Proof of claim is the value of the rent you are losing and are owed, that is your CLAIM against them. THEN once you file that proof of claim you file the Motion for Relief from Stay and you attach the court writ of eviction and judgment of eviction to the motion and you argue that they are staying in your home for free causing you great financial loss and harm and seek to get the bankruptcy court to remove the stay and then you can take that back to the state court and ask for a renewed writ of possession and attach the relief from stay.
Customer: replied 1 month ago.

OK am I correct by doing:

Step 1: File at Bankruptcy Court: Motion for Relief from Automatic Stay with Form 410 which attaches the Complaint of Eviction and the Default Judgment, then wait 30 to 45 days for Order to Lift the Automatic Stay.

Step 2: File that Order at Sheriff's Office to have the previous Writ of Possession enforced.

-So I need not return to the eviction court for any purpose, or I still need to file Motion to Renew the Writ of Possession?

-Meanwhile do I need to anything with the eviction court in order to keep the Writ valid? Namely is there a time limit on the Writ of Possession after which I may have to redo the whole thing afresh?

Many thanks/

Thank you for your reply.

1) You file the Notice of Claim AND a Motion for Relief from Stay. Then wait the 30-45 days for your hearing on the relief from stay.

2) Once you receive your order of relief from stay, you file that with a "renewed motion for writ of possession" with the state eviction court who then supplies the writ to the sheriff and the sheriff serves the new writ of possession.
Customer: replied 1 month ago.

I owe you much for your guidance

1) Please link me to the forms for both items above.

2) To serve them to the tenant, do I need a certified process server or any third-party adult by first-class mailing will do?

3) Repeat from above: Is there a time limit for the writ of possession to be renewed?

Thank you for your reply.

Here is the proof of claim: http://www.uscourts.gov/file/752/download

Here are instructions for motion for relief from stay (doesn't matter the state all bankruptcy court are the same and these are some of the better instructions): http://www.mieb.uscourts.gov/how-file-motion-relief-automatic-stay

Here is a Notice and Motion of Relief from Stay: http://www.mieb.uscourts.gov/how-file-motion-relief-automatic-stay

NO there is no time limit to file the renewed writ of possession, as soon as you get the relief from stay you can file the renewed writ of possession.
Customer: replied 1 month ago.

From above 2) To serve them to the tenant, do I need a certified process server or any third-party adult by first-class mailing will do?

No you can serve it by first class mail.
Customer: replied 1 month ago.

To make sure again: Without Proof of Service from a third party?

You do not need proof of service of third party.
Customer: replied 1 month ago.

AND Motion for Relief is not a form but a standard court paper format like the Complaint?

On the motion for relief, I sent you a link to the form used for filing one, it was the 3rd link.
Customer: replied 1 month ago.

Cited wherefrom:

Is there a specific form for the Motion for Relief from the Automatic Stay?

There is no specific form required for the Motion.

You must have missed this:

Here is the proof of claim: http://www.uscourts.gov/file/752/download

Here are instructions for motion for relief from stay (doesn't matter the state all bankruptcy court are the same and these are some of the better instructions): http://www.mieb.uscourts.gov/how-file-motion-relief-automatic-stay

Here is a Notice and Motion of Relief from Stay: http://www.mieb.uscourts.gov/how-file-motion-relief-automatic-stay

NO there is no time limit to file the renewed writ of possession, as soon as you get the relief from stay you can file the renewed writ of possession.
Customer: replied 1 month ago.

I will do the homework tonight, will inform you my progress tmrw morning, hopefully able to end this thread accordingly.

I appreciate very much your guidance.

Good bye for today.

Good night.
Customer: replied 1 month ago.

Good morning,

During my preparation of the Motion, one guy says that we are on a wrong course hence we must mk a U-turn; but I find his cite unconvincing.

His reasoning:

1) An eviction filed after bankruptcy is unlawful hence must be trashed.

2) We must wait until after "Discharge" in the bankruptcy court in order to refile the eviction case anew.

His cite:

https://www.law.cornell.edu/uscode/text/11/361

Question: I find nothing in it to reverse our course, do U? If not, can u cite something to validate our course?

Many thanks/

Thank you for your reply.

This says just what we have been discussing. You have the judgment, it is valid, you have to file as creditor with your proof of claim and you are going to file to remove the stay.

The court has the option of instead of removing the stay to make the trustee pay you a bond to cover rent to allow the tenant to remain in your home until bankruptcy is complete OR the bankruptcy judge can order the stay removed in which case the eviction can be completed.

This does not mean you have to file the eviction all over again unless the court vacates your judgment, which is another option they can do in addition to making the trustee put up a bond to cover rent.
Customer: replied 1 month ago.

So you agree with me that his cite says nothing that supports his point?

Can you point out something that supports your point?

Many thanks/

The wording of the statute itself supports my point. It says the judge can hold off on the judgment to protect the creditor, that is the stay in bankruptcy.
Customer: replied 1 month ago.

-The key point here is whether the Default Judgment in the eviction court is valid, although the Complaint was filed after bankruptcy. I see nothing to support either side of argument.

-My point is that tenant failed to answer with his bankruptcy defense in the eviction court; therefore the default judgment is valid. You agree with my common sense but do U have a lawyerly cite to shut up the other guy?

Many thanks/

The key is the defendants never challenged the validity of that judgment and never filed notice of bankruptcy. So unless the BK court or the state court vacates that judgment it remains valid. Legally, had the defendant filed proof of bankruptcy in response to your eviction, then your eviction would have been stayed and no default judgment would have been entered. But until the BK court or state court vacates that judgment (if they do it would be vacated and left open pending the BK judgment) it is a valid judgment as the defendants have not challenged it.
Customer: replied 1 month ago.

Well, defendant did not challenge in the eviction court but it now does at the Sheriff Office which now follows the "Stay" in the bankruptcy court.

In the absence of cite for either side, it appears to me that we should keep our course to let the bankruptcy court decide.

Q: I was filling Form B10 you gave but I found nothing alluding to eviction but it s all about payment of debt. It looks like a replay of the eviction case in the bankruptcy court. Am I right?

Q: Do I need to hold off my Motion for Relief until after the "Hearing on Discharge" at the bankruptcy court ?

Q: Do I need to show up at that "Hearing on Discharge" for any purpose?

Many thanks/

Thank you for your reply.

1) You asked me this several days ago. On the proof of claim it is the amount of money for rent due, not the eviction. I did tell you that above.

2) No, the whole point of the motion for relief is to get the bankruptcy stay lifted so you can proceed with your suit. If you wait until discharge, the relief from stay is moot.

3) You need to show up at the motion for stay hearing, not the hearing for discharge.
Customer: replied 1 month ago.

Oops, suddenly "Discharge" becomes a new issue here.

Q.: What is it? Its effect on the eviction case?

Thank you for your reply.

Discharge in bankruptcy means ALL DEBTS ARE FORGIVEN OR WIPED OUT. If that happens, then you have to renew your writ of possession in the court and ask for the court to evict them based on the default judgment and as you are not asking for money at that time just possession the court will renew the judgment presuming the tenant did not get it vacated in the meantime. If the tenant got it vacated then you have to file all over again for possession of your property.
Customer: replied 1 month ago.

Wow. This is a very interesting development. The Discharge Date in the bankruptcy case is Oct.3 and the Hearing on Discharge Nov.2.

Q: Does that mean I need not file anything in the bankruptcy court any more but simply return the eviction court?

Q: If so, what do I need to submit to the eviction court to have the Writ of Possession reaffirmed and enforced?

Q: Can defendant fight or it's over?

Many thanks

Thank you for your reply.

I did not realize how late you were in the proceeding and that it was pending a judgment. If you are this late in the proceeding then all you can do is file proof of claim, but even then you can be too late now as you missed the discharge date, which you only just now stated.

If this is in their discharge order, then that makes sense as to why the attorney told you that you will need to evict them all over again.

We have gone on for 4 days (all for a whopping $8.50) and you never mentioned the discharge date had already passed. This changes the whole game and if they included this eviction suit in their bankruptcy then you have ONE CHANCE and that is filing an objection to discharge based on you not receiving timely notice and object to the discharge of your eviction/debt based on them failing to give you proper notice of the bankruptcy so you could file a claim and properly object.

You really, because of this last development, should be using an attorney because you are really short on time now and if you do not get the objection to discharge filed in a couple of days it is going to be too late and you have to start all over again.
Customer: replied 1 month ago.

But if the Discharge only means the wipe-out of debts, then again it is irrelevant because neither I nor the eviction court's Writ of Possession demand debt payment but only to repossess the rental (Eviction).

It is not yet discharged because there is the Hearing on Discharge pending. Does that mean I must go to that hearing to raise my eviction case?

Customer: replied 1 month ago.

As I mentioned I owe you much for your guidance as this thread develops but now near an end.

But if the Discharge only means the wipe-out of debts, then again it is irrelevant because neither I nor the eviction court's Writ of Possession demand debt payment but only to repossess the rental (Eviction).

It is not yet discharged because there is the Hearing on Discharge pending. Does that mean I must go to that hearing to raise my eviction case?

Thank you for your reply

Again, unless the bankruptcy court order specifically discharges the eviction case, the judgment is still valid.

You need to file an objection in writing to the bankruptcy discharge and that has to be done before the bankruptcy discharge hearing November 3 and you need to show up at the hearing to raise your objection and that is why I think using a local attorney would be best because you only have 2-3 days to file your written objection to discharge.
Customer: replied 1 month ago.

-U mean I have 7 courts days before the hearing to file Objection, which means only 2 days left from today?

-The Objection asks:

1) to hold the unpaid rent as a valid debt for future payment?

2) to lift the Stay for the eviction to be enforced?

3) anything else?

-Will that Objection replace the Motion for Relief above because their content and purpose are the same?

-11 US 362 (1)(a) indicates STAY for "all judicial proceedings"

Does "Stay" here means postpone or void ? Because if postpone then we are on the right track but if void then we must U-turn.

I will come back after a few hrs.

Thank you for your reply.

That is what I said, you have no time to really get this done, it needs to be filed by Monday close of business.

The objection asks to allow you to have them removed from the premises and give you possession of the premises back or to hold them liable for future rent for the time they fail to leave.

Yes, objecting to the entry of the bankruptcy is the same as the motion for RELIEF from stay. You mis understand what stay means in this case. Stay in bankruptcy means all debtors cannot collect debts (they are stayed or stopped from enforcing debts as long as bankruptcy is pending) and then if bankruptcy is ordered and entered all of those stayed debts are extinguished or dismissed so they no longer exist.

Customer: replied 1 month ago.

A) Back to the key question whether we are in the right direction or we need to U-turn and refile the eviction all over.

CITE:

11 US 361 (a) (1) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of



the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.

_________________________________

QUESTION

1) I filed for eviction after tenant filed for bankruptcy;

2) Tenant failed to raise the bankruptcy defense (Default).

3) I m not seeking the payment of rent before the bankruptcy.


Therefore the STAY doesnt apply and we need not U-turn but proceed with the Objection on Monday. Is that correct?


A. If this means the owed rent before the filing of bankruptcy is wiped out, then when does tenant begins to owe the rent again? After the filing or after the hearing on discharge?


Many thanks/

Everything you stated is correct, you are not seeking any money you are seeking possession of the premises, which had you done this in a timely manner you could have received a relief from stay, but as the discharge is complete and the hearing is in November 3, it is too late for that. So you have to go in and object to the discharge to ask for possession of the premises and you can also argue you did not move sooner because you had no notice of the bankruptcy. They would then have to prove you received notice of the bankruptcy.

It means ANY RENT DUE BEFORE BANKRUPTCY IS DISCHARGED AND YOU CANNOT COLLECT IT and it begins again after the discharge.
Customer: replied 1 month ago.

No, you miss my KEY point which is the TIMING of the law --That

bankruptcy protection does NOT apply because I filed for eviction AFTER the filing of bankruptcy.

RECITE: 11 US 362 (a)(1), (2)(3) The key word "BEFORE" is stated over and over throughout this code.

CITE: (b) (22) specifically and expressly applies to eviction. Also repeats the word "BEFORE"

Thus the concept "STAY' whatever it means simply does not even apply. And the timing of my eviction turns out inadvertently not late but perfect.

Consequently we need not even deal with the discharge because there is nothing to be discharged. We only need to cite this law to have the eviction affirmed (clearance) by the bankruptcy court then take it back to the sheriff office for enforcement.

Or do you read the key word "BEFORE" differently?

You are saying the same thing I am in different words. This was filed after the bankruptcy and they did not raise the bankruptcy in the defense of the suit.
Customer: replied 1 month ago.

By common sense I think such a timing of BK protection intends to help desperate people to wipe out the old debts but NOT to help dishonest people to create the new ones; e.g. Tenants may file BK in order to stay on without paying or even owing rent. Consumers may file BK in order to abuse their credit cards, and so on.

Apparently the tenant's counsel defaulted the eviction case because he knew he got no BK defense.

Subsequently he tried to deceive the sheriff with such untimely BK paper, because he could have at least file a Petition to Set Aside the Default Judgment and raised it in eviction court in order to argue the law instead of submitting it to the sheriff (who was not in charge of settling legal arguments but merely to enforce the Writ on hand).

Better news: Same code Section (d) (4) (A)(B): Landlords dont need Relief from Stay, therefore need not file Motion for it. They only need the BK court clerk's certified docket indicating the applicability of BK protection.

We can close this thread here. I m glad that we reach the meeting of minds and I appreciate very much your patience.

Thank you very much.

As I told you, they cannot just stay for free in your premises because they filed for bankruptcy and the court is going to make them get out one way or another.
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Customer: replied 1 month ago.

I did the rating but it says "Access denied"

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Thank you for your immediate attention to the matter
Looks like it worked. Thank you very much.
Customer: replied 1 month ago.

Thank you very much again for your patience.

See you later.

Thank you for your reply. I appreciate your business.
Customer: replied 1 month ago.

Hello again,

I m sorry for bothering you again on the same question.

Another BK attorney insists that eviction filed AFTER the filing of BK is subject to "Stay". He failed to cite therefore I suspect BK bias, but his insistence makes me nervous.

Q: Do U still agree with my reading of the cite below that the "Stay" does not even exist because I filed the eviction after the filing of BK?

QUOTE 11 US 362

(a)Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as stay, applicable to all entities, of—


(1)
the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;


(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;...

Many thanks/

Thank you for your reply.

I believe that if the cause of action came up after they filed bankruptcy and did not include you in the BK, as you got no notice of the BK as a alleged creditor, that your interpretation is correct, but you still need to file an objection to the final BK dissolution because if they snuck you into their bankruptcy then you could end up having to go to court later to fight to vacate it based on fraud. So either way I believe you have to object to the final BK order.
Customer: replied 1 month ago.
u say that u agree with my reading but i still need to file an Objection in the BK court?
I did not exist on the docket of BK case.
I did receive the Notice of BK because I was on the list of creditors for the unpaid rent of April, May, June. BK was filed on July 1st.
I did not file eviction because those months were covered by tenant s deposit.
After BK filing, Tenant created NEW debt by NOT paying the rent of July. Deposit had exhausted. I gave Notice to pay rent or quit 7/17 and filed Eviction 7/26. Tenant defaulted. Default Judgment and Writ of Possession 10/12.
Now contrary to our reading of the law above, the Sheriff Office is asking me to certify that the Final Judgment for eviction was obtained before BK in order to move it forward. 11 USC 362 (b)(22).
And it asks nothing about 362 (a)(1) above which is our legal basis - that Stay does not exist. Does this mean our reading is wrong?Many thanks/
I told you why before. If they included you in their bankruptcy as a creditor , they could get your action dismissed in the bankruptcy and then you will spend more money and time getting that undone. Yes, this is a new debt since filing of BK, I get that, but you need to object to the BK now in the BK court and force the BK court to exclude you from the dismissal in bankruptcy and thus allow you to go back to the state court for your writ of possession to be enforced without having to file a brand new ejectment suit.
Customer: replied 1 month ago.

1) No, I filed no action, therefore Stay didn't exist, then how can it be dismissed?!
2) Yes this is a new debt which doesn't exist in BK filing therefore Stay also doesn't exist, and u got that, then how can object anything in BK court?
3) 11 US 362 (b)(4) says that I only need a docket from BK court to show that BK has nothing to do with it, unless I read it wrong?

Thank you for your reply.

I agree, you are preaching to the choir. I know it is a new debt and I know you are arguing that you are merely seeking possession, not money. So I agree with your argument, you have to make the argument to the BK court to get them to agree that the possession is exempted from the BK decision, which is why you object to the final judgment.
Customer: replied 1 month ago.

1) But there is nothing to object to. This eviction does NOT exist on the BK court docket; and the Stay does not apply due to11 US 362 (a) (1) quoted above. Therefore I have nothing to do with the BK final judgment. Therefore how can I object to something that doesnt exist? Object to what?

2) As cited above 11 US 362 (b)(4). Yesterday I obtained from the BK counter clerk a certified docket showing that I have nothing to do with BK. Did I read that cite correctly? If Yes then I only need to submit that certified docket to Sheriff to move eviction forward.

3) Or U mean I still need a judge's ruling on 11 US 362 (a) (1) quoted above? If Yes, then by what means, a simple letter? a Petition to Move Eviction Forward?

there is something to object to as they are trying to lump in the eviction/possession action into everything with the BK and you need the BK court to say specifically it is not part of the BK to avoid having to go through all of this again. As I told you several times, your time is running short so you need to file an objection and argue that the possession should not be a part of the BK and you ask the court to allow that to proceed. Once the BK court agrees you renew your motion for writ of possession and attach that BK order and they can be removed. You cannot write any simple letters, everything to a court is done by filing motions and again with time running short you really should be using local counsel.
Customer: replied 1 month ago.

Time is running short but may be in my favor because intriguing enough, sheriff says if BK is discharged prior to restoration date (lockout) then eviction can move fwd.

I have looked for local counsel but all I found so far Tenants' and BK attorneys like two guys I mentioned. Only minutes ago I find somebody for landlords. So we can stop this extra extension here.

Thank you very much again.

Thank you for your reply.

Wish you the best.

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