[RPPTL LandTen] Evicton vs. Bankrupty question

Tue Nov 29 12:21:07 PST 2011

The issue here is whether the leasehold estate has been terminated prior to the debtor filing the petition.  If the lease has been effectively terminated, then it is not property of the estate and the debtor may not accept the executory contract under Section 365.  Whether or not the lease has been terminated prior to the filing may be a question of law or fact that the bankruptcy judge may have to decide, particularly if the tenant is in possession and won't leave.  Section 362 has a provision for residential landlords if a writ of possession has been issued before filing.  Otherwise, it is best to get an order from the bankruptcy court.

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin at esclaw.com<mailto:choskin at esclaw.com>) and then delete this message and all copies and backups thereof. Thank you.

Charles P. Hoskin
Direct Dial:  850-444-3881
Fax:  850-434-7163

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric Jacobs, Esq.
Sent: Tuesday, November 29, 2011 12:24 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Evicton vs. Bankrupty question

I'm sorry to say I'm no expert but I think that even seeking possession would be a violation of the stay. I was under the impression that the automatic stay did not apply where the eviction was filed first not subsequent.  I would review I think its §362 if memory serves.  Beyond that, the debtor has to comply with certain requirements to maintain a stay against a residential landlord (see the section).   I think you need to move for relief from the stay and you'll probably get it in any case I would expect.

Our firm and our family support the wonderful work of Mount Sinai Medical Center
David Posnack Jewish Day School, and
The Holocaust Documentation and Education Center.

Ask us how you can help support these fine institutions.

JACOBS / OFFIR
                                              PERSPECTIVE IN PRACTICE

[cid:image001.png at 01CCAEA1.64FF1C70]
Eric Jacobs, J.D., M.B.A.
Managing Partner
Board Certified

eric at jolegal.com<mailto:eric at jacobsoffir.com>
1930 Harrison Street, Suite 208
Hollywood, Florida 33020<http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us>

Tel: 954-929-0679 <http://www.plaxo.com/click_to_call?src=jj_signature&To=954-929-0679&Email=ericj@jerichotitle.com>
fax: 888-632-4944
mobile: 954-243-3100 <http://www.plaxo.com/click_to_call?src=jj_signature&To=954-243-3100&Email=ericj@jerichotitle.com>

Confidentiality and Relationship Disclosure. If you are reading this, congratulations, you are probably the first.  For years law firms have included lengthy disclosures at the bottom of their emails which in our view are of, at best, marginal legal value.  We have decided not to do that.  Instead, we will ask that if you got this email and shouldn't have, let us know and please don't read it (though if you've read this, chances are that ship has sailed).  Also, just because we exchange emails doesn't make us your lawyer(s).  If you would like to create an attorney/ client relationship, we're glad to hear it and would be happy to provide you with an engagement letter.  As soon as you have received written confirmation from us, you can consider our relationship formed.

From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 12:47 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Evicton vs. Bankrupty question

Fellow Group Members,

I have a situation where I recently filed an eviction against a residential tenant who is currently in bankruptcy proceedings.  In fact, the tenant just filed a few weeks ago, but I think it's important to note that the bankruptcy was filed before the eviction was filed.  The attorney representing the tenant in bankruptcy says they are going to ask for a stay on Eviction case.  No lease by the way.  Not suing for back rent, just possession.

My understanding is that the landlord can proceed with the eviction, in rem only, as long as we are not seeking monetary damages, but I know very little about bankruptcy.  Has anyone else ever faced this situation?  Or does anyone know enough about bankruptcy to say whether the eviction would be stayed?  Any suggestions are appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/mailman/private/landten/attachments/20111129/bd1ccfe5/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 7055 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/mailman/private/landten/attachments/20111129/bd1ccfe5/attachment-0001.png>