Bankrupt Tenants: How the New Bankruptcy Law Affects Evictions

The new bankruptcy law makes it easier for landlords to evict bankrupt tenants.

It’s not uncommon for tenants with significant financial burdens to declare bankruptcy. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which took effect on October 16, 2005, makes it easier for landlords to evict bankrupt tenants. The steps you’ll need to take depend on whether the tenant files for bankruptcy before or after you get a judgment against the tenant awarding you possession of the rental.

Tenant Files for Bankruptcy After You’ve Won Possession

If you sued the tenant for eviction and won a judgment for possession before the tenant filed for bankruptcy, you can proceed to evict the tenant, even if the tenant then files for bankruptcy in an attempt to stop the eviction.
New bankruptcy law vs. prior law. Under prior law, tenants could stave-off eviction by invoking bankruptcy’s “automatic stay” with a last-minute bankruptcy filing. Under the new bankruptcy law, in this situation landlords can usually proceed with the eviction without having to ask a judge to lift the automatic stay.
Exception in some states. In a few states, and only in evictions based on nonpayment of rent, and in very narrow circumstances, a tenant can stop an eviction at the last minute by filing for bankruptcy — if the tenant files a certification and pays back rent and forward rent. As the landlord, if you file an objection to the tenant’s certification right away, you’ll get a hearing in the bankruptcy court. If you convince the judge that the tenant’s certification is not true, the court will lift the stay and you can proceed to evict the tenant. Read the rest of this entry »