Tenant files for bankruptcy right before eviction trial

[landlordproblem]

The tenant is now 3 months behind on rent and we filed a forcible detainer with the court which was set for trial a few days after the hearing. The tenant was fighting the eviction on the grounds that there were two "cure" notices sent to the tenant approximately 1 week apart. The forcible detainer was filed shortly after the second "cure" notice was sent. We were in our legal right to file the detainer according to the first notice sent, however, not the second. There is nothing in the Arizona law that states that sending a second notice "resets" the time clock to file the forcible detainer. Since that was their argument, the hearing was set for trial for a few days later. Within that time the tenant claims to have filed for bankruptcy. She sent a text message on Saturday saying to save ourselves a trip to the court because she just filed for bankruptcy on Friday. We did not reply to the text message and still plan on appearing for court on Monday. We are not able to verify the information that she sent on Saturday and think she is just telling that so we don't show up to the court. If she did in fact file for bankruptcy, would the automatic stay still go into effect since the court action was already started? On a separate note, this is horse property and she has horses there that she is not picking up after. We realized this on the first forcible detainer hearing which was a 5 days ago and since then we went back to the property just today (5 days later) and realized that she has been pushing the manure off to the side of the stalls and leaving it there. There is well water on the property and the manure, if not disposed of properly, can seep into the water and create a major health hazard. She also has a dangerous animal (a dog trained to bite) which I was not aware of when she moved in and she has let the dog loose which the neighbors have complained of, and she has apparently remedied since she was notified and the problem has not happened again. Also, I do not have a fully executed lease with the tenant. I refused to sign the lease that was presented to us, however, she signed it. Then after a couple weeks, I signed the exact same lease (because I panicked and didn't know what else to do since she was already moved in) but it did NOT have her signature on it and sent it to her. Is there a lease in place since neither one of us have one single contract with both our signatures? The bottom line is, how can we evict her. We do not want her in the house anymore and want to know what we can do to get her out. ANY help/advice is appreciated.

 

[Gail_in_Georgia]

Keep the court date. Your issue is evicting the tenant, not suing for owed rent. Thus, even if she did file for bankruptsy, this should have no effect on your request for an eviction based on failure to pay rent.

Gail

 

[army judge]

Keep the court date. Your issue is evicting the tenant, not suing for owed rent. Thus, even if she did file for bankruptsy, this should have no effect on your request for an eviction based on failure to pay rent.

Gail

Gail, if a person has filed for bankruptcy, it potentially stays every adverse action.

However, it isn't like it was before 2005, when deadbeats could hide behind bankruptcy for 6-10 months and avoid eviction and paying their rent.

It also complicates the eviction proceeding, sometimes necessitating the landlord to schedule and appear before the bankruptcy court.

There are also certain time limits imposed to respond, and federal courts are not as informal as lower landlord-tenant related courts.

There are cures for the tenant's adverse possession, but an eviction proceeding does not trump a federal bankruptcy court proceeding.

It also depends on relevant state law.

A few discrete inquiries by the OP should indicate how he should proceed.

If your landlord hasn't gone to court and gotten an order of eviction against you, then you can file for bankruptcy protection, and the automatic stay will prevent the landlord from beginning an eviction action against you.

In the past, tenants could stop an eviction by filing for bankruptcy protection. Even if a landlord got a court order of eviction, a tenant could file bankruptcy and the automatic stay would stop the eviction. That's no longer the case. Under the current bankruptcy law, the automatic stay will not stop an eviction if the landlord obtained an order of eviction before you filed for bankruptcy.

There are, however, two exceptions. The automatic stay will stop an eviction if, within 30 days of the date you filed for bankruptcy, you file a certification with the court and the landlord stating that:

* Under the state landlord-tenant law, you are entitled to "cure" or fix the problem that caused the eviction, and you deposit with the court the rent that would become due during the 30-day period after you filed for bankruptcy, or
* You have paid all back rent that was due before you filed bankruptcy

http://leases-and-leasing.lawyers.com/landlord-tenant-law/Landlords-and-Tenants-in-Bankruptcy.html

The tenant has already filed

If your tenant has filed for bankruptcy and is (or becomes) behind in the rent, or violates another term of his tenancy (such as keeping a pet in violation of a no-pets clause), you can't deliver a termination notice, let alone proceed with or initiate an eviction lawsuit. This prohibition is known as the "automatic stay," and it means that you need to go to the federal bankruptcy court and ask the judge to "lift," or remove the stay. (U.S. Code § 365(e).) In most cases, you'll get the stay lifted within a matter of days and can proceed with your termination and eviction. (You won't have to go to court if your tenant is using illegal drugs or endangering the property, as explained below in "Bankrupt tenants, drugs, and damage.")

http://realestate.findlaw.com/landlord/landlord-eviction/tenant-bankruptcy-and-eviction.html

If you are behind in rent, but the landlord has not yet gotten an eviction order from the court, then the automatic stay that results from filing for bankruptcy will stop the eviction, unless the landlord successfully files a motion with the bankruptcy court to lift the automatic stay. However, once the bankruptcy is filed, you will have to stay current with rent payments; otherwise, the landlord can evict you, because the automatic stay does not affect any debts incurred after the filing. But even if you stay current with rent payments, some states will allow a landlord to evict you, anyway, although your back rent will still be discharged.

If your landlord obtains a judgment for possession before you file for bankruptcy, then the landlord may proceed with the eviction, unless you can successfully challenge it in court. However, to successfully challenge a pending eviction in court, the laws in your state must allow this. If your state allows it, then you have to:

* File a certification with your bankruptcy filing that your state allows you to stay on the premises if you pay the back rent, and you must deposit any rent due in 30 days with the bankruptcy court.
* This will prevent any eviction for 30 days, unless the landlord files a motion to object, in which case, the court will have to hold a hearing within 10 days.
* If the landlord doesn't object, then, to prevent eviction beyond the 30 days, you must file a 2nd certification within the 30 days that you paid the back rent.
* However, the landlord can also object to this, and if he does, then the court must hold a hearing within 10 days.

Most courts, if the landlord objects, will allow an eviction to proceed because it is his property, and since you don't own the property, it is not part of the bankruptcy estate, and cannot be used to pay any creditors.

http://thismatter.com/money/credit/bankruptcy/bankruptcy-and-rent.htm

http://www.bankruptcylawnetwork.com/2007/03/25/can-i-use-bankruptcy-to-stop-an-eviction-proceeding/

Bankruptcy

When a tenant files for bankruptcy, the "automatic stay" will prevent the continuation of eviction proceedings until the bankrupcy is resolved, or the bankruptcy court otherwise permits eviction proceedings to continue by lifting the stay. This may necessitate bringing a motion before the bankruptcy court, asking that the stay be lifted.

Please note that while a bankruptcy action may result in the full or partial discharge of a rent arrearage, the tenant is obligated to pay any new rent obligations which arise from continued tenancy after the bankruptcy is filed. While it is still necessary to have the automatic stay lifted before proceeding with an eviction, bankruptcy courts are typically sympathetic to landlords in this position.

http://www.expertlaw.com/library/real_estate/evicting_tenant.html