[WSBARP] Bankrutpcy and Residential Evictions

Wed May 3 13:51:33 PDT 2017

An extreme case allowed additional damage elements in such situations so be
careful. See *Lansaw v. Zokaites*
<http://www2.ca3.uscourts.gov/opinarch/161867p.pdf>, the Third Circuit
Court of Appeals upheld an order of the Bankruptcy Court for the Western
District of Pennsylvania awarding of emotional distress damages and
punitive damages against a landlord who violated the automatic stay.

On Wed, May 3, 2017 at 1:20 PM, Scott Russon <scott at englishandmarshall.com>
wrote:

> I was able to work things out with the bankruptcy attorney, and proceeded
> with the eviction.
>
>
>
> What I learned through this process is that the bankruptcy will stop an
> eviction.  However, per 11 USC 362(b)(22), if the bankruptcy petition was
> filed *after* the landlord obtains a judgment and writ, then the writ can
> be executed.  The automatic stay does not stop execution of the writ.
> However, per 11 USC 362(l), a tenant may file a certificate.  If the
> certificate is accurate, then the automatic stay will stop execution of the
> writ.  There are certain assertions the tenant must make for the
> certificate to be valid.  I did not need to go further than this for my
> case, but it appears the certificate would only work for a writ obtained
> for failure to pay rent – not for other reasons (eg: a 20-day notice).
>
>
>
> Thanks for all your input.
>
>
>
> --Scott Russon
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com] *On Behalf Of *Nicholas Fisher
> *Sent:* Tuesday, May 02, 2017 1:23 PM
> *To:* WSBA Real Property Listserv
> *Subject:* Re: [WSBARP] Bankrutpcy and Residential Evictions
>
>
>
> You should check the petition filed by the debtor.  They are required to
> give notice to the bankruptcy court if in fact they have a judgment against
> them for past due rents as there are some protections for those that have
> sough relief from the court.  It will probably only help you in your motion
> for relief, but if they failed to identify that to the court, you may have
> additional recourse.
>
> Nic.
>
>
>
> On Mon, May 1, 2017 at 3:56 PM, Scott Russon <scott at englishandmarshall.com>
> wrote:
>
> Thank you.  That mirrors the info I received from a call into my
> bankruptcy friend.
>
>
>
> --Scott
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com] *On Behalf Of *Scott Thomas
> *Sent:* Monday, May 01, 2017 2:24 PM
> *To:* WSBA Real Property Listserv
> *Subject:* Re: [WSBARP] Bankrutpcy and Residential Evictions
>
>
>
> I am not a BR lawyer, but my understanding is that a tenant/debtor must
> file a BR petition before a "judgment for possession" is entered, and LL
> may continue an eviction without seeking relief from a stay if a judgment
> for possession was obtained.  11 U.S.C. 362(b)(22).  However, and
> notwithstanding the entry of a judgment for possession, the automatic stay
> will continue for 30 days after filing the petition in BR if the debtor
> files a certification that state law permits a cure after a judgment for
> possession (as does Washington in a nonpayment of rent case, RCW
> 59.148.410) and deposits rent that will become due within 30 days after the
> filing of the petition with the clerk (must be a cashier's check or money
> order payable to LL).  Rule 4001-1(b), Local BR Rules, Western Dist. WA.
> The auto stay continues if the debtor completely cures and certifies the
> complete cure of monetary default within the 30 day period.  11 U.S.C.
> 362(l). There are different rules for evictions resulting from tenant's
> damage to property, or illegal drug use. At least, that is what I have been
> told by my BR colleague.
>
>
>
> On Mon, May 1, 2017 at 1:51 PM, Scott Russon <scott at englishandmarshall.com>
> wrote:
>
> I have landlord client who has a sheriff’s eviction set for tomorrow, and
> who just received notice that the tenant filed bankruptcy today.  Client
> previously obtained a judgment and writ of restitution.
>
>
>
> Does the automatic stay prevent the sheriff’s eviction tomorrow?  I was
> under the impression that the automatic stay would prevent client from
> collecting on the judgment but would not prevent us from executing the writ
> for possession of the property.  Am I not correct and we have to request
> for relief from the stay in bankruptcy court?
>
>
>
> Sincerely yours,
>
>
>
> SCOTT E. RUSSON
>
> Attorney at Law
>
>
>
> English & Marshall, PLLC
>
> 12204 S.E. Mill Plain Blvd., Suite 200
>
> Vancouver, WA 98684
>
> Phone: (360) 449-6100
>
> Fax:    (360) 449-6111
>
>
>
> STATEMENT OF CONFIDENTIALITY: The information in this email and
> attachment(s) is legally privileged and confidential information intended
> only for the use of the addressee listed on this email. If the reader of
> this message is not the intended recipient, you are hereby notified that
> any dissemination, distribution or copying of this email and attachment(s)
> is strictly prohibited. If you have received this email in error, please
> immediately notify us by telephone at the number listed above, reply to
> this email that it was sent in error, then erase the e-mail and
> attachment(s) from your computer. Nothing in this message is intended to
> constitute an electronic signature unless a specific statement to the
> contrary is included in this message. Thank you.
>
>
>
>
>
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
>
>
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
>
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>

-- 
Nicholas L. Clapham
(206)939-0262

NOTICE- This email message may contain confidential and privileged
information. It is intended only for the named recipent(s) and may contain
attorney work product and/or information exempt from disclosure under
applicable law. Any unauthorized use is prohibited.  If you are not the
intended recipient, please contact the sender by reply email and destroy
all copies of the original message. This does not constitute an electronic
signature.

Pursuant to U.S. Treasury Department Circular 230 and other IRS
regulations, unless we expressly state otherwise, any tax advice contained
in this communication (including any attachments) was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
tax-related penalties or (ii) promoting, marketing or recommending to
another party any transaction or matter(s) addressed herein.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20170503/4750c0cb/attachment.html>