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Understanding the Impact of Bankruptcy Law on Writs of Possession When They Cross Paths

eviction and bankruptcy.jpgWhen you stay in possession of an apartment or leased property after the expiration or termination of the lease, and you refuse to leave, your conduct, in the eyes of the law, is defined as an unlawful detainer. These actions are common when the landlord of the property is attempting to evict tenants that do not pay rent or expose the property or other tenants to danger. Landlords are required to use this process because under California law, they are not permitted to engage in any self-help remedies to remove a tenant who refuses to leave.

In the legal system, these types of cases are called unlawful detainer actions. If the landlord wins an unlawful detainer case, the court will issue a writ of possession. The sheriff of the county will serve the tenant that is refusing to leave. The writ of possession notifies the tenant that they must leave the apartment by a certain time period or the sheriff will forcibly remove the tenant.

Filing for Bankruptcy

The moment you file for bankruptcy, an automatic stay is entered in your case for 30 days and it immediately prevents lawsuits and collection actions against your property, specifically including foreclosure and eviction proceedings. This is where bankruptcy may come in handy to fight eviction proceedings.

The timing of the bankruptcy proceedings are crucial to fighting the unlawful detainer action and writ of possession:

  • If you file for bankruptcy prior to the landlord serving you with notice of the unlawful detainer action, the landlord has to persuade the bankruptcy court to lift the automatic stay before he can evict you;
  • If you filed for bankruptcy after the unlawful detainer action is filed, but before a writ of possession is issued, the landlord has to wait until the stay is lifted or seek relief from the court by lifting the stay; or
  • If you filed for bankruptcy after the court entered a writ of possession, the automatic stay will not bar the sheriff from enforcing the writ of possession. But, the landlord can only seek possession of the property, not money damages.

If you have not paid your rent in some time due to financial hardship and are afraid of being evicted from your apartment, you should consider filing for bankruptcy. Once your landlord files an eviction lawsuit, and you file for bankruptcy thereafter, the bankruptcy judge will most likely lift the automatic stay to allow the eviction to move forward, especially if the state court already issued a writ of possession. Furthermore, it might be easier for the landlord to lift the automatic stay if the landlord proves that you will endanger the property or use illegally controlled substances on the property.

Consult an Attorney

If you are late on rent due to the large amount of debt you have, and it is only a matter of time before your landlord will move to evict you, you should contact an experienced San Jose bankruptcy attorney who will be able to evaluate your case and determine if bankruptcy proceedings will give you assist you in maintaining your apartment for a longer period of time.

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  • Santa Clara County Bar Association | 1917
  • American Inns of Court
  • CWL | California Woman Lawyers
  • Bay Area Bankruptcy | Forun
  • The State Bar of California
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