by Julio E. Portilla, Esq.
The Bankruptcy Abuse Prevention and Consumer Protection Act was made effective in October 2005 and has rendered eviction of bankrupt tenants easier for landlords. Knowing how to proceed is contingent upon whether a tenant’s bankruptcy is declared before or after the landlord regains control over the rental by winning a judgment of possession to give him power of eviction.
What if the tenant declares bankruptcy before the landlord wins possession?
Should a landlord not have a judgment for eviction ready before the tenant’s bankruptcy was filed, forcible, legal removal of the tenant becomes somewhat difficult, even if he has somehow violated the lease or is behind on payment of rent. In this case, the law prohibits the landlord’s giving a termination notice to the tenant-much less an eviction notice-a situation called an “automatic stay.” Prior to eviction, the landlord must request from a federal bankruptcy court judge that the automatic stay be lifted before he is allowed to continue with the tenant’s removal.
If the eviction must proceed immediately because the tenant (or his visitors) is causing danger to or using illegal drugs on the landlord’s property, the landlord can continue even if he has not obtained a judgment of possession against the tenant and bankruptcy has been filed. The landlord needs to file a certification with the bankruptcy court detailing the damage or drug activity and give the tenant notice. The tenant is allowed 15 days to object and request a court hearing; otherwise eviction can take place without the automatic stay.
What if the tenant filed for bankruptcy after possession of the rental was won?
Unlike the past, in which a tenant’s declaring bankruptcy would essentially protect him from eviction, if the landlord has won possession before the filing occurs, he can usually continue the eviction process without waiting for the automatic stay to be lifted. Some states may allow a tenant negligent in paying rent to stop the eviction by declaring bankruptcy and providing certification, back payment, and future payment. To lift the automatic stay, the landlord must object and provide the court judge with reasons the tenant’s certification is false.
It is the legal right of the landlord to insist on proof in bankruptcy court of the tenant’s ability to make payments in future, making the tenant liable, should he ever fail to pay, to lose his protection of automatic stay and risk possible eviction.
Frequently Asked Questions About Marshals and Evictions
Q: What is a petition for removal?
A: in order to start a proceeding to evict a tenant, the landlord, or his attorney, must prepare a petition requesting a court hearing, which must be served on the tenant and filed with the court.
Q: The court has ruled in my favor. What happens now?
A: Before a marshal may conduct an eviction, he/she must first request that the court issue a Warrant of Eviction. In New York, city marshals and deputy sheriffs are the only public officers authorized to request a Warrant of Eviction from the court.
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