Yes, bankruptcy can stop an eviction temporarily in most cases, but will not stop an eviction in the long term.
Written by Attorney Eva Bacevice.
Updated August 11, 2020
Filing a bankruptcy case can stop or stay an eviction proceeding, whether before it is in process or even if it has already begun. This is not, however, a permanent solution and there are exceptions when it will not work at all. In this article we will explore how a bankruptcy can temporarily stop an eviction, what are the circumstances where it will not help, and how you can utilize the time it affords you to potentially recover.
What is the process for an eviction case?
An action for eviction usually begins with the landlord filing a court action against you. The landlord must provide you with notice, and they have to obtain a judgment against you before they can actually evict you.
How does a bankruptcy stop an eviction?
Filing a bankruptcy case creates an automatic stay at the moment your case is filed with the court. The automatic stay stops creditors from pursuing collection actions against you as soon a your bankruptcy is filed. This is particularly helpful if you file before the landlord begins an eviction process or so long as it is before the landlord receives a judgment in their favor.
The automatic stay attaches immediately whether you file a Chapter 7 or a Chapter 13 bankruptcy. Your next steps, however, can differ significantly based on what type of case you file. In a chapter 13, you can account for missed rent payments in the chapter 13 plan. This will allow you to spread the default over the life of the plan (3 to 5 years) so long as you are otherwise maintaining rent payments going forward and the creditor (landlord in this case) does not object. Stopping an eviction for an extended period of time is much less likely in a Chapter 7 case. A Chapter 7 case is a liquidation where you walk away from all of your debts and get a fresh start. Generally if you are behind on rent payments and file a chapter 7, the assumption would be that you intend to walk away from that debt, which would entail moving to a new residence. The default amount that you owe is dischargeable.
If you are in a chapter 7 and your current eviction action is a result of non-payment and you wish to stay in your current rental, there are some states (very few) that will allow a renter to catch up on payments. If you are fortunate enough to be in one of these states, you will need to follow specific steps to cure the default:
File a certificate to cure the default
Serve this certificate on your landlord
Set aside the rent due 30 days after the bankruptcy filing date
Catch up entirely (all missed payments and any fees) in no more than 30 days
File a second certificate with the court that you are caught up
Will filing a bankruptcy always stop an eviction?
So long as the bankruptcy is filed before a judgment is entered, the automatic stay will stop the eviction process. This is often only a temporary measure because chances are that the landlord will file a motion to lift the automatic stay, i.e. remove the protection and be able to continue the eviction proceedings. Once the automatic stay has been lifted, the landlord can continue with the eviction process.
Filing a bankruptcy case will not stop an eviction if the judgment has already been obtained, unless the eviction was based on failure to pay rent, in which case you might have an opportunity to make up missed payments.
There is also an exception if there are illegal drugs being used on the premises, or if the property itself is endangered. In this circumstance, the landlord must file a certificate alleging illegal drug use or danger to the property within the last 30 days. If you do not respond within 15 days after, the landlord is permitted to continue with the eviction process.
Additionally, if a landlord does file a motion to lift the automatic stay, it is very likely that the motion will be granted because evictions do not impact the bankruptcy estate. As opposed to an owned residence, a rental agreement is not a monetary source for the trustee to take to pay your creditors.
You also need to keep in mind that if you have filed multiple bankruptcy cases the automatic stay may be limited to 30 days or not at all.
How can you recover with the extra time?
If you are filing a chapter 13 you could maintain ongoing rent payments, and make up past due payments over the life of the plan. Keep in mind that your landlord will need to agree to these terms. In a chapter 7 you can contact your landlord directly to discuss making payment arrangements, or determine a mutually agreeable moving date. While moving can be very stressful and unpleasant you should weigh that against the other benefits you are receiving from completing a chapter 7 bankruptcy, including walking away from any past due rent payments. You will also need to consider whether a Chapter 7 would be beneficial to you in other ways, and whether you have other debts to wipe out.
Filing for bankruptcy can stop or hold off eviction proceedings, but may not be a permanent solution.