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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39184
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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Will a re filed bankruptcy delay the eviction if the landlord

Customer Question

Will a re filed bankruptcy delay the eviction if the landlord has a judgment from the housing court to evict? The prior bankruptcy included a granted motion to lift stay. I want to know if by re filing a dismissed bankruptcy 1-2 days prior to lock out date will prevent the lockout. Will it give us any time whatsoever.
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 7 years ago.
Legally, a judgment of possession deprives the tenant of the right to possession. This means that the bankruptcy stay theoretically has no effect. However, a contrary argument can be made that the act of the sheriff in commencing the eviction, is a "collection" action, prohibited under the bankruptcy stay.

The result of this conflict is that sheriff departments tend to make their own rules on whether or not they will evict, at a particular point in a bankruptcy. So, the only way you can know whether or not you are wasting your time by filing another bankruptcy, is to contact your local sheriff's civil division and ask.

Otherwise, you could get an unpleasant suprise.

Hope this helps.

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Customer: replied 7 years ago.
If the eviction is a result of a foreclosure, would the eviction be considered a collection action? Also, the county's sherrif office is not involved, only a constable service.
Expert:  socrateaser replied 7 years ago.
Sheriff or Constable, the issue is the same -- you'll have to ask the office to see what their policy is.

Similarly, foreclosure or landlord-tenant eviction, the process is the same. I could give you a long legal argument, and/or case law to support your position, but it will be meaningless if a law enforcement officer is sitting at your doorstep telling you than unless you open up and remove yourself from the premises, that the officer will break in and forcibly remove you.
Customer: replied 7 years ago.
Is there a way in which one might find this information without alerting the constable service to our intentions? The landlord is represented by counsel, and I believe that they call the shots. Would counsel risk going against Federal Judge?
Expert:  socrateaser replied 7 years ago.
I think you're misunderstanding the process. If you file bankruptcy and then notify the constable service, it's still up to the service to decide whether to follow the automatic stay. The stay is a form document -- it doesn't say, "Don't evict this debtor." It requires that the constable service determine whether the facts and circumstances permit the eviction to go forward.

This is not a case of a federal judge watching what's going on. You could be totally in the right, and entitled to sue the constable service for contempt of the bankruptcy stay. But, you would be sitting on the street in the meanwhile.

You don't have to identify yourself to the constable service. You are looking for a policy statement given a certain set of facts. You're asking the same question to me, here. The problem is that I can't answer it definitively, because there is a gray area in the law sufficient to get you into a real jam -- and, I'm not going to blow smoke at you, and tell you that you will or will not absolutely be evicted -- because I have observed the issue go both ways in the past.
Customer: replied 7 years ago.
I would like to see the legal argument, only to repress my sincere obsession to learn. I would like to know how I am misunderstanding the process. My understanding is as follows: A bankrupcy is filed. An automatic stay is in place. The way to get around the automatic stay is to file a motion before the court. The judge must rule one way or another, regardless of what might be perceived by any attorney. If that attorney tries to go around the law, then they will have to answer for that.
Expert:  socrateaser replied 7 years ago.
Bankr. Code § 109(g)(2) prohibits a debtor from filing a new case (under any Chapter) where the prior case was dismissed at the debtor's request while a motion to lift the stay was pending. Moreover, if the case is dismissed solely to thwart a lawful foreclosure or eviction, the debtor and debtor's attorney may be sanctioned for filing the new case.

The constable service will not be oblivious to the above-described law. So, the question beccomes whether or not to wait for the court to dismiss the bankruptcy court filing, or to proceed with the eviction, knowing that the court must dismiss.
Customer: replied 7 years ago.
Debtor did not request dismissal. Does the law change?
Expert:  socrateaser replied 7 years ago.
Cut to the chase, please. What exactly (word for word) was the court's reason for dismissing the bankruptcy?

Customer: replied 7 years ago.
Motion Allowed. Motion filed by trustee for not being able to reschedule 341 meeting.
Expert:  socrateaser replied 7 years ago.
Bankr. Code 109(g): Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if—(1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case;

Attending a 341 meeting is not optional. Therefore, if your case was dismissed for failing to appear at the 341, then your entire bankruptcy case will be dismissed. But, the constable won't know why your case was dismissed, so the service will have to wait until the case is dismissed before proceeding with the eviction.

However, you can be sanctioned by the bankruptcy court for filing this subsequent bankruptcy petition within 180 days of dismissal. Not that you have any money to pay a monetary sanction.

Best of luck.