[RPPTL LandTen] Eviction vs. Bankruptcy question

[Harry Heist]

Feel free to email my partner David Weisse, david at evict.com as he handles
these all the time.   It usually takes about 30 days to get the Stay lifted
if you jump on it.   The legitimacy of the eviction and the 3 Day Notice
concerns me if it was filed with knowledge of the BK.  Sometimes the tenant
is planning on leaving anyway so it does not mess up their rental history so
check to see what the attorney says before you file. 

 

Harry

 

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Email: harry at evict.com

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Chuck Hoskin
Sent: Tuesday, November 29, 2011 3:08 PM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Eviction vs. Bankruptcy question

 

If it is a Chapter 7 and the property is not claimed as exempt, then the
"property" belongs to the Trustee.  If it is a Chapter 13, you need to
review the plan to see how it is treated in the Plan.  

 

Section 365 of the Bankruptcy Code relates to acceptance and rejection of
executory contracts.  Check the debtors' schedules and see if they listed
any executory contracts and what their intentions are regarding those
contracts.  Chances are they did not list your lease.  You may need to file
a Motion To Accept or Reject an Executory Contract along with a Motion For
Relief From Stay.  

 

In rem or not, your eviction is on hold until you first get permission from
the bankruptcy court.  The stay is also a stay against property of the
debtors and arguably they have a leasehold interest in the property.  If the
attorney for the debtors asks to stay the eviction, as for back rent as a
condition of the stay.  If the tenant is going to "accept" the executory
contract, they have to cure defaults and provide "adequate assurances" that
defaults will be promptly cured and of future performance.  Usually that
means rent and attorneys' fees.    

 

Probably much more than you wanted to know.  Good luck!

 

Chuck Hoskin

 

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Fax:  850-434-7163

 

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 11:47 AM
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 

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