Adversary Proceeding Landlord Issue

[fast1244]

Ok, here goes any advice on this greatly appreciated.

Wife and I filed CH 7 10/5/09, had 341 meeting 11/19/09. All went well. Prior to filing on 10/5/09, we ran an ad on Craigslist looking for a house to lease. We were honest about getting ready to file BK. In lieu of the BK issue, we offered to pay up to 3 months rent as well as sec deposit in advance on lease signing. Our now landlord jumped on this because of all the money he was going to be getting up front. We requested a lease with those terms be drawn up so we would have something to give the court when we filed the next week. We paid everything as agreed except for the last month worth of rent. That was delayed because of a car issue. The landlord never cared about any of it and was well aware of the BK. Well, as it would be we filed 4 days after siging the lease. All was fine until about 2 months in when we couldn't pay the 3rd month we had agreed to too. We offered to pay it but just late. Landlord refused to accept it. So, it goes on and on for about 2 weeks where he still refuses to take the 3rd month and refuses to give our sec deposit back, as we told him we wanted to move Feb 2010. Our atty advised us that the terms of the lease were out and we could technically break it. We ended up amending our schedules Dec 16 to inlcuded the landlord in case of future problems. I collected 3 months worth of emails between myself and the landlord where he completely agreed to let us go month to month until FEB. He ended up hiring a lawyer and the lawyer filed a complaint alleging Fraud because we signed a lease and filed 4 days later. Clearly he is making this up to avoid being discharged. Now a status conf has been set for 2/23. I followed this on Pacer and responded to the complaint with 59 pages of email transcripts showing proof he was aware and refused payment. Now, his atty is saying we falsified docs on the petition by not paying that 3rd month. Clearly in my response I advised the court why would we pay so much upfront especially when we just came out of a 1 year lease. Wife and offered to pay all past due rent and his atty and him still refuse saying they want a trial and dont care about the emails. Theyare trying to sue us for the entire lease plus costs. Is this going to stop our discharge? Or, only on this debt? When will a Judge review these ludicrous allegations and our response and evidence? Does he have any chance of winning this? We decided to stay in the house until the matter is resolved, as they keys to the house are the only leverage we have? Any advice on this??
**BTW the Trustee already requested to be dsicharged as he found no wrong doing by us and our finances..How can Trustee make this statement, yet landlords atty is free to file a complaint in regards to us lieing about our finances? Why is the court allowing this?

[justbroke]

I'll answer your last question first...

BTW the Trustee already requested to be dsicharged as he found no wrong doing by us and our finances..How can Trustee make this statement, yet landlords atty is free to file a complaint in regards to us lieing about our finances? Why is the court allowing this?

One has absolutely nothing to do with the other. The Panel Trustee, who you dealt with at the 341 Meeting, only filed a report of "no distribution" and basically saying that there is no property to administer in the Bankruptcy Estate. That has nothing to do with any "complaints" (adversary proceedings) or other actions taken by credtiors and/or the United States Trustee (who is a different person/entity).

All was fine until about 2 months in when we couldn't pay the 3rd month we had agreed to too. We offered to pay it but just late. Landlord refused to accept it.

That's a bad start to a lease.

So, it goes on and on for about 2 weeks where he still refuses to take the 3rd month and refuses to give our sec deposit back, as we told him we wanted to move Feb 2010. Our atty advised us that the terms of the lease were out and we could technically break it. We ended up amending our schedules Dec 16 to inlcuded the landlord in case of future problems.

SO you are "rejecting" the lease?

He ended up hiring a lawyer and the lawyer filed a complaint alleging Fraud because we signed a lease and filed 4 days later.

Well, you missed the 3rd month's payment... PLUS... you amended your Bankruptcy petition to reject the lease. What is the landlord supposed to do?

Clearly he is making this up to avoid being discharged.

Huh?

They are trying to sue us for the entire lease plus costs. Is this going to stop our discharge? Or, only on this debt? When will a Judge review these ludicrous allegations and our response and evidence? Does he have any chance of winning this? We decided to stay in the house until the matter is resolved, as they keys to the house are the only leverage we have? Any advice on this??

This will not stop your discharge. The chances of him winning it are in his favor. He can clearly show that you didn't pay, that you filed 4 days after signing a lease, and that you then amended your petition to include the lease (reject the lease).

You are also "squatting" and keeping the keys... so that further deteriorates your position. So, I have to ask you... where is the rent from the time you missed until today? I hope it's in an escrow account somewhere.

[fast1244]

Well, not squatting. I submitted a response to the allegations to the court some 3 days after the complaint had been filed. We had not even received the summons yet, I was following it on pacer. We had tried to pay him the only rent due which was one month and he refused it. I submitted 5 weeks worth of emails where we tried to pay him and he refused. He was upset about the us breaking the lease. We did reject the lease, but still agreed to pay him all due. In addition, I contacted his lawyer and agreed to pay any rent due and turn the keys over, they declined. We filed an amendment when he refused to take the rent, what were we supposed to do? The only one that ahs rejected anything is him. He just wasn't happy with the fact we gave 60 days notice to leave. The keys to the house are the only collateral I have to pressure him to settle. He can't enforce the lease and expect me to not live there. It's one way or the other. He is saying he knew nothing about the BK because he has to in order to make the lease hold up. We could have just as easily filed on the old landlord and solved this and I surely would not have handed 3k over to him, if my intent was to defraud. Do you have a new position now?

[justbroke]

He was upset about the us breaking the lease. We did reject the lease, but still agreed to pay him all due.

If you rejected the lease, then he has to protect his position. As a former landlord myself, renters that file Bankruptcy can be a particular problem for landlords who are not diligent. Rejection of the lease is almost always done when a renter enters Bankruptcy and a landlord must proceed cautiously so as not to violate the Automatic Stay while protecting the landlord's rights.

Since you rejected the lease... or should I say... since you didn't affirmatively "assume" the lease, the landlord is within his rights to file a complaint not only to question your original intent, but to seek relief from the automatic stay so as to enjoin you in a State eviction action.

In addition, I contacted his lawyer and agreed to pay any rent due and turn the keys over, they declined. We filed an amendment when he refused to take the rent, what were we supposed to do?

You were already in breach, and you filed Bankruptcy. because you didn't affirmatively "assume" the lease in your Statement of Intentions, I assume that when the landlord saw that (you didn't assume the lease), he needed to take all precautions. I would have done the same thing.

The keys to the house are the only collateral I have to pressure him to settle. He can't enforce the lease and expect me to not live there.

Ummm... did you file with an Attorney and what did your BK attorney say about this. Landlords have excellent rights in a Bankruptcy proceeding! It is specifically designed to keep people from squatting.

It's one way or the other. He is saying he knew nothing about the BK because he has to in order to make the lease hold up. We could have just as easily filed on the old landlord and solved this and I surely would not have handed 3k over to him, if my intent was to defraud. Do you have a new position now?

My position is the same. I don't think you ever shown -- on your Statement of Intentions -- that you were assuming the lease. The landlord had no other choice but to assume that you were going to try to squat. Now, maybe one led to the other, but you are now squatting, non-paying, and rejected the lease. The landlord has no recourse but to file a complaint. Remember this... the landlord is paying a lot of money to file that complaint... they are not cheap. So, he must "know" that he has a case against you.

Are you represented?

[fast1244]

Using the word assume the lease, yes we did. One email I submitted in my response clearly states at that point in time our position was to stay in the house. I even questioned my atty as to why the landlord was noticed by the court at all--his answer-because this was an unexecuted contract, nothing more, but at that time he was not included in any debts to be discharged. At the time this whole mess started we were still pre-paid on rent and owed nothing. We in writing let the landlord know we would be leaving because we were able to do so. He responded in writing that he would set all terms of the lease aside and go month to month. Nothing was owed to him. When the complaint was filed we were nothing more than 3 weeks behind. Landlord even contacted my atty who could not speak with him legally. He waited 90 days until money ran out and we could come to no amicable agreement. Bear in mind I didn't amend the schedule until he refused to return our sec deposit and accept any further rent. By his own admission he was aware of BK all long and agreed to set lease terms aside. I presume if his lawyer performs discovery which will be needed and questioned at the upcoming status conf that he will be placed under oath and will have to perjure himself in order to stick with the complaint. Clearly he felt backed into a corner with this and filed a complaint in a futile attempt to circum to the fate of all of our other creditors. His allegations on financial affairs are a joke. Trustee at the time investigated us thoroughly and all was ok. He will have an uphill battle on this, I believe.

[frogger]

I sure would like to hear the landlord side of this story.......

[justbroke]

Using the word assume the lease, yes we did. One email I submitted in my response clearly states at that point in time our position was to stay in the house. I even questioned my atty as to why the landlord was noticed by the court at all--his answer-because this was an unexecuted contract, nothing more, but at that time he was not included in any debts to be discharged.

Does it say on your Statement of intentions "ASSUME" for the lease, if not, it is automatically rejected. If your attorney says it was an 'un-executed" contract, then it wouldn't even go on the Statement of Intentions. Only "Unexpired" Executory Contracts and Leases can be assumed or rejected. Being "included" on noticing has nothing to do with whether you clearly indicated your Intention to "Assume" the "unexpired" lease on your Statement of Intentions.

Besides, you defaulted.

At the time this whole mess started we were still pre-paid on rent and owed nothing. We in writing let the landlord know we would be leaving because we were able to do so. He responded in writing that he would set all terms of the lease aside and go month to month. Nothing was owed to him. When the complaint was filed we were nothing more than 3 weeks behind.

Let me say this again... you defaulted! No landlord in their right mind is going to let you squat, be weeks behind in rent, and regardless of what you may or may not have indicated on your Statement of Intentions, let you stay there. The landlord was right to file a complaint! Whether he's successful in litigating that complaint is another story, but he was right to do so.

Your default is proof positive that you did not intend to meet the terms of the lease.

Landlord even contacted my atty who could not speak with him legally. He waited 90 days until money ran out and we could come to no amicable agreement.

That's b3ecause you can't evict someone, for whom you already collected rent. That's Landlord 101!

Bear in mind I didn't amend the schedule until he refused to return our sec deposit and accept any further rent.

Why would he return a security deposit when you haven't vacated the unit. That's Landlord 101.

By his own admission he was aware of BK all long and agreed to set lease terms aside.

Ah, but if you committed fraud, it doesn't matter.

I presume if his lawyer performs discovery which will be needed and questioned at the upcoming status conf that he will be placed under oath and will have to perjure himself in order to stick with the complaint.

Whether you have a contractural issue is a State non-bankruptcy law issue. It could be that the lease could only be changed in writing and upon execution of a new lease (signed, etc). It could be that an e-mail is sufficient, but that's a State issue.

Clearly he felt backed into a corner with this and filed a complaint in a futile attempt to circum to the fate of all of our other creditors. His allegations on financial affairs are a joke. Trustee at the time investigated us thoroughly and all was ok. He will have an uphill battle on this, I believe.

Huh? Trustee didn't investigate you, since panel Trustees don't usually do this. If you were being investigated by the United States Trustee, that's an entirely different process performed by an auditor. One has absolutely nothing to do with the other -- that is, a complaint filed against you and a panel trustee filing a "no distribution" report.

As such, I think there's more going on here than meets the eye.

[fast1244]

Assume the lease, reject the lease, whatever. He was aware and I was well within my rights to file and have the chips fall where they may. If this was such an issue for him and he truly feels defrauded he should have contacted someone when he was 1st noticed by the court less than 7 days after our filing. He waitied 90 days! He had multiple opportunities to take action on this matter if he was truly only trying to protect himself. Oh, 1 other word, we moved out of a house in a nice neighborhood we couldn't afford 1 month prior to filing. His house isn't a house at all. it's a trailer with a railroad track next door. Neighborhood filled with more than 12 registered sex offenders. Again, I provided that information also to the court. I originally decided to move because of that issue and that alone, safety of my wife and daughter. I was within my rights and that alone is sufficient enough reason to break lease. He can't expect to collect the full term of the lease in this suit us not live there. The court will only make him whole again. He will still have to make a conservative effort to put new tenants in. You know how many people break leases whether in BK or not? You seem somewhat partial on this. This is nothing more than a case of a po'd landlord trying to prove a point and an over zealous atty more than willing to tell him whatever he wants to hear in an effort to make some money. His lawyer could care less about the outcome. I will attent the status conf and pre-trial and make my case in front of the judge. Doesn't look good on him when we keep putting offers out to make him WHOLE again and he keeps refusing, instead pushing for what he thinks will be a big payoff. This isn't beneficial to him or me. The proof of burden lies on him, and he has alot to prove MAJOR fraud. An attempt to have my entire BK thrown out is a joke. This can almost never be done except by the Trustee if they find Major fraud. The automatic stay had been more than lifted. He could have started eviction proceedings when the rent ran out. One thing is for sure, this is a big gamble for him financially and I anticipate as the bills mount, he will have to decide when to suck it up and settle. Again, settle. I could go all the way in attempt to have any back rent that is mounting discharged! There are always appeals too depending on outcome. Wow, not sure if our intent is to withold, not pay and just completely defraud how we are the only ones offering anything. I will hire counsel after the status conf if needed. I have already consulted a great atty in dealing with AP's. He has reviewed the complaint and calls it shallow. We'll see where this ends up when a judge actually reviews both sides. I'm confident in our position.

[justbroke]

Assume the lease, reject the lease, whatever.

it is not "whatever". This is a Federal Court Proceeding. You are in a Court of Equity. A preponderance of evidence is what prevails in this type of court. Please don't take what I say as being pontificating, but I'm trying to let you see... how it looks to the Court. In the end, this may end up being a whole lot of adieu about nothing.

He was aware and I was well within my rights to file and have the chips fall where they may.

No one said you weren't within your rights, but you defaulted on your obligation. That is the single event which exacerbated the issue, in my opinion.

If this was such an issue for him and he truly feels defrauded he should have contacted someone when he was 1st noticed by the court less than 7 days after our filing. He waitied 90 days!

You either don't understand what I wrote or are too focused on your intent -- which the landlord can't tell. Landlord 101: a landlord can't just evict you or start a court proceeding when you are paid up. Simple as that. Until the 90 days elapsed, he had rent in hand. Until you defaulted, there was no reason to believe that you were not going to comply with the terms of the lease.

He had multiple opportunities to take action on this matter if he was truly only trying to protect himself.

Not when he was already paid.

Oh, 1 other word, we moved out of a house in a nice neighborhood we couldn't afford 1 month prior to filing. His house isn't a house at all. it's a trailer with a railroad track next door. Neighborhood filled with more than 12 registered sex offenders.

Irrelevant in a Court of Equity. He'll say that you, nonetheless, signed a lease.

Again, I provided that information also to the court. I originally decided to move because of that issue and that alone, safety of my wife and daughter. I was within my rights and that alone is sufficient enough reason to break lease.

On what grounds? Is there some term in the lease that says you can break it after the fact, because you didn't do your homework up front?

He can't expect to collect the full term of the lease in this suit us not live there. The court will only make him whole again.

If it's fraud, yes he can and the Court can side with him. Remember... Court of Equity is not a criminal court. It's a preponderence of evidence.

This is nothing more than a case of a po'd landlord trying to prove a point and an over zealous atty more than willing to tell him whatever he wants to hear in an effort to make some money.

I would be po'd too. You fail to see it from the landlord's side. A bankruptcy is SERIOUS for unsecured creditors. A landlord could stand to house someone for 6 months for FREE.

His lawyer could care less about the outcome. I will attent the status conf and pre-trial and make my case in front of the judge.

Hopefully you have a case and the Judge may decide to halt it right there at conference, but who knows. I don't personally know all the evidence.

The bottom line is that all of this was precipitated by you filing Bankruptcy AND then, subsequently, defaulting. If it were not for the default, I don't think we'd be having this conversation.

I do wish you the best, but I'm trying to show you that you have an uphill battle. The landlord will concentrate on the default. That is going to be difficult to overcome.

[frogger]

Assume the lease, reject the lease, whatever. He was aware and I was well within my rights to file and have the chips fall where they may. If this was such an issue for him and he truly feels defrauded he should have contacted someone when he was 1st noticed by the court less than 7 days after our filing. He waitied 90 days! He had multiple opportunities to take action on this matter if he was truly only trying to protect himself. Oh, 1 other word, we moved out of a house in a nice neighborhood we couldn't afford 1 month prior to filing. His house isn't a house at all. it's a trailer with a railroad track next door. Neighborhood filled with more than 12 registered sex offenders. Again, I provided that information also to the court. I originally decided to move because of that issue and that alone, safety of my wife and daughter. I was within my rights and that alone is sufficient enough reason to break lease. He can't expect to collect the full term of the lease in this suit us not live there. The court will only make him whole again. He will still have to make a conservative effort to put new tenants in. You know how many people break leases whether in BK or not? You seem somewhat partial on this. This is nothing more than a case of a po'd landlord trying to prove a point and an over zealous atty more than willing to tell him whatever he wants to hear in an effort to make some money. His lawyer could care less about the outcome. I will attent the status conf and pre-trial and make my case in front of the judge. Doesn't look good on him when we keep putting offers out to make him WHOLE again and he keeps refusing, instead pushing for what he thinks will be a big payoff. This isn't beneficial to him or me. The proof of burden lies on him, and he has alot to prove MAJOR fraud. An attempt to have my entire BK thrown out is a joke. This can almost never be done except by the Trustee if they find Major fraud. The automatic stay had been more than lifted. He could have started eviction proceedings when the rent ran out. One thing is for sure, this is a big gamble for him financially and I anticipate as the bills mount, he will have to decide when to suck it up and settle. Again, settle. I could go all the way in attempt to have any back rent that is mounting discharged! There are always appeals too depending on outcome. Wow, not sure if our intent is to withold, not pay and just completely defraud how we are the only ones offering anything. I will hire counsel after the status conf if needed. I have already consulted a great atty in dealing with AP's. He has reviewed the complaint and calls it shallow. We'll see where this ends up when a judge actually reviews both sides. I'm confident in our position.

Go ahead to the court and tell the judge all of this. If they've heard it once, they've heard it a million times from other disgruntled tenants.

The burden of proof on the landlord is not very difficult when trying to recover the property and the funds. The tenants that try to make it complicated normally end up looking like a fool.

Don't be one of those types of tenants. If you do, you will lose.

[fast1244]

What is it on this exactly that neither of you are getting? I have said over and over we never not agreed to pay any rent. We have agreed from the beginning and still do agree to pay all that is owed and in addition return the keys! So, please explain to me how he is losing anything? Isn't the entire point to not have any rent monies discharged and to get his residence back? We have been willing all long to do so! Please explain to me why he wouldn't rather save the atty fees, take the deal and move on with life? I don't have the uphill battle. Oh and BTW the rent ran out 11/30/09. He filed 1/5/10. So, he could have evicted and the money in question about this arguement would have been paid to the court and held in trust. He is simply going for the big pay day. It won't happen on this.
Also, the fact remains it doesn't matter defaulting on the lease. Terms of the lease became void the day I filed. His only hope is to claim he knew nothing about the BK thus me entering into a contract with the intent of fraud. He can't prove it, considering the mountains of emails I have from him.

[justbroke]

What is it on this exactly that neither of you are getting? I have said over and over we never not agreed to pay any rent.

Your intent is meaningless once you actually defaulted. That's the part that you're not getting. That's the single most important issue. You defaulted after you filed Bankruptcy. There's no sidestepping that fact. I want you to concentrate on that, and that alone, because that is going to be the singular sticking point.

Everyone has good intentions, but when you actually default on a (binding) contract that's something that's actual and you can point to it.

We have agreed from the beginning and still do agree to pay all that is owed and in addition return the keys! So, please explain to me how he is losing anything?

Again, you don't seem to understand Bankruptcy. You actually had (and may still have) the upper hand in this situation. Unfortunately, you defaulted.

Isn't the entire point to not have any rent monies discharged and to get his residence back?

I can't speak for him.

Please explain to me why he wouldn't rather save the atty fees, take the deal and move on with life?

Well, if he wins, you'll by paying the attorney fees. If you were to read the Lanlord guide to Bankrupt Tenants, you will clearly see that he is following the book, literally. Landlords absolutely must take these actions when a tenant, who filed Bankruptcy several days after signing a lease, didn't "assume" the lease, and subsequently defaults on the lease.

I don't have the uphill battle. Oh and BTW the rent ran out 11/30/09. He filed 1/5/10. So, he could have evicted and the money in question about this arguement would have been paid to the court and held in trust.

No, he couldn't evict. he would have to file a Motion for Relief from the Automatic Stay in the U.S. Bankruptcy Court. Maybe that's the part you don't understand. Since you're in an active Bankruptcy, he, the landlord, just can't go start any process in a civil court to evict or sue you. He is going by the book.

He is simply going for the big pay day. It won't happen on this.

What big pay day? if he loses, he's out at least $4K in attorney fees. You think this is some big thing for him? How is he to make money on someone who defaulted to begin with? Do you have some stockpile of non-exempt cash somewhere? I don't think so. You have turned this around to being about the landlord trying to "get rich", but there's no way that's going to happen in this case.

Also, the fact remains it doesn't matter defaulting on the lease. Terms of the lease became void the day I filed.

Absolutely wrong.

The terms of the lease do not become void upon filing of a Bankruptcy, regardless of how the lease reads! Unless you reject the lease or you don't take an action (via Statement of Intentions), then the lease is voided after 45 days. Since you remained in the property, didn't take any steps to assume the lease (or leave the place) -- which you claim you did assume it -- you have effectively just rejected the lease and are squatting. There's no two ways about it.

His only hope is to claim he knew nothing about the BK thus me entering into a contract with the intent of fraud. He can't prove it, considering the mountains of emails I have from him.

If you have evidence, you'll present that at trial. That will still not counter the fact that you defaulted.

This is about a tenant, who declared bankruptcy, constructively rejected the lease, defaulted, remains in the property, refuses to vacate. That simple. This is a landlord's worse nightmare. I still don't understand why you can't see the facts of the case.

If I were the attorney representing the landlord, it would be simple. You signed lease, declared bankruptcy 4 days alter, defaulted, and remain in possession of the property. You are not going to win the argument the way you're approaching this at all. The facts are that you did in fact file and you did in fact default. The default is your largest issue and you can not overcome that. While it can be difficult to prove actual intent to defraud, it appears that your landlord and his attorney are sufficiently convinced that you have done something fraudulent.

Unfortunately, you do not understand the complexities of leases, landlords and Bankruptcy. It is so important to Bankruptcy, that there are sections of the BK code which deal specifically on this topic. They generally protect the tenant (by not allowing a breach solely for filing the bankruptcy regardless of underlying State non-bankruptcy law or the terms of the lease). They also protect the landlord by giving them tools in order to determine what process they need to use in order to remedy any material default. You are in default... the landlord is following the process.

[fast1244]

Well, in order to show my true intentions, I have decided to as agreed to from day one before lawyers were involved to turn the keys over end of the month. I will have a lawyer retained on this matter who has great knowledge in adversary proceedings. We will fight this case out of the house. Oh, he'll be paying my atty fees if he loses. Again, I feel confident. The lease can't hold up unless the intent to defaud is proven. That will not happen here, so there's goes the lease. And mind you again, he started this crap when no money whatsoever was due. His attitude brought on his worst nightmare and even with financial stress to my own family I will pay our atty to fight fire with fire.

[frogger]

His attitude brought on his worst nightmare and even with financial stress to my own family I will pay our atty to fight fire with fire.

His attitude. I'm glad that it's him with the attitude and not you, because I would certainly hate to see you get one.

You've been given excellent advice by justbroke, but it appears that you think that you are right and everyone else is wrong. With that being said, I wish you good luck and hope that you have plenty of money that the trustee knows about to fight your case with.

[fast1244]

Trustee has been discharged Frogger. And as far as the advice I have been given, every case is different. Without knowing all the facts in full, the advice is meaningless. JustBroke isn't a lawyer he's a past landlord. If the 2 of you know so much, why are you both bankrupt and why does JustBroke know so much about getting taken when it comes to tenants? Seems all his wisdom on this comes from past experience. Clearly, that business fell through. I'll take my chances...