We filed a UD-115 (Stipulation of Judgment) and I filed a Chapter 7

[Sroe]

My landlord started Eviction proceedings against me. We went to court and reached a settlement before the case was called. The court clerk had us complete a Form UD-115 (STIPULATION FOR ENTRY OF JUDGMENT). On the form, I agreed to be out by the end of the month. However, after losing my job (Lyft), I filed a Chapter 7 4 days before I was due to be out. I notified my landlord of the BK filing the day I was supposed to be out. 2 days later, he applied for and got the Writ of Possession, stating that Judgment had been entered on the day we went to court.

On the Form UD-115, item 6b was checked ( Judgment will be entered only upon default of payment of the amount in item 2i or the payment arrangement in item 5a).

My question becomes...What effect does the Stipulation have on the case? Is there a Judgment in place? Or is it subject to the Automatic Stay. He did not file a Relief from Stay. I was served a Notice to Vacate today and have until 8/23 to be out.

[justbroke]

Unfortunately you really need an attorney to wade through how evictions work in your State. Generally, bankruptcy will stop the eviction process unless a the landlord already had a judgment (for possession) prior to the bankruptcy being filed. I think this changed back when they made the changes to the bankruptcy code (BAPCPA in 2005).

In any event, without seeking professional legal advice, I can say that where I live, in Florida, your stipulation to entry of "judgement" would mean that the court ordered possession. The next step here would be that the landlord then asks for a writ of possession to actually effectuate the eviction. My (nonlegal) opinion is that if you already have the judgement entered prior to filing, then the bankruptcy does nothing to stop the eviction process.

At least those are my thoughts. Filing prior to having a default, summary judgment, or stipulated judgement entered would have stopped the eviction in its tracks. From what I know as a landlord, filing after a judgement is entered, has no effect whatsoever, except in some special circumstances which are noted on Page 2 of Official Form B1 (the petition) -- Certification by a Debtor Who Resides as a Tenant of Residential Property. To use that special exception requires notification to the landlord that you are employing that special feature and that you have made certain deposits with the Clerk of the Bankruptcy Court. I don't know much more than that.

11 USC 362(b)... The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay—
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(22) under subsection (a)(3), of the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor;

[Sroe]

I totally understand what you are saying. However, there are some items that are confusing me. I have scheduled an appointment with an attorney, but wanted to get an idea of what I was facing..

There was no Writ of Possession issued until the 3rd of August, 2 days after I notified my landlord of the bankruptcy. I tried to upload the form, but this site does not permit attachments. If it helps, you could see the form at http://www.courts.ca.gov/documents/ud115.pdf. My main source of confusion was item 6a, which states that " Judgment will be entered only upon default of payment of the amount in item 2i or the payment arrangement in item 5a." Based on this and item 8 on the form, I believe that no judgment was actually entered.

I don't expect to lose possession. I only think my landlord was required to see a relief from stay and that he perjured himself by stating that the Judgment was entered on July 11th.

[justbroke]

As I wrote, you'll get much better help as to the specifics of whether a consent to entry of a judgment is enough.

[bcohen]

The form which you linked to appears to be a stipulated judgment, which means that the landlord already obtained the writ of possession before you filed for Chapter 7. As a result, it appears that the automatic stay does not apply, unless you have checked the boxes on your petition indicating that you are able to cure any monetary default under the lease, and you are posting a deposit with the court equal to the rent which will become due within the next 30 days after filing. (And of course, you would need to pay any back rent and current rent due immediately).

If you are behind on your rent, and unable to bring your rent current, then bankruptcy will not help delay the inevitable. To do that, you would have needed to file before any judgment for possession was granted, and unfortunately you did not. I would suggest selling, pawning, or getting rid of any household items which you cannot move or store, and looking for somewhere else to stay ASAP.

[Sroe]

Actually, in California, the Writ of Possession is a separate form. http://www.courts.ca.gov/documents/ej130.pdf. It was filed on August 3rd, 7 days after I filed the Chapter 7, and 2 days after I notified my landlord. In addition, the form I previously linked states that I have right to have an attorney present and a hearing regarding any default. This did not happen. Additionally, both of us agreed to item 6b on the previous form.

I understand that this forum is just opinions, and that everyone is working with generalized information. I am not trying to be argumentative, just addressing concerns that you mention. I do really appreciate everyone's input,

[justbroke]

Yes, Sroe, it's a little nuanced for California, but the bankruptcy code reads simply that it's a judgment is obtained before filing. The bankruptcy code does not mention any writs. The true nuance is whether the judgment has to be entered or is a stipulated entry of judgment for a default at a future date enough to trigger the bankruptcy's code protection so that the judgment can't be executed (via a writ of possession or eviction). I can see that your argument is that there is no "entry" of a default and hence there was no judgment prior to filing.

I think it could go either way. I also think that putting up a fight is just a delay tactic. Bankruptcy doesn't always solve every issue. If I were the landlord, I would have been a little more careful and sought an expedited hearing on a Motion for Relief From the Automatic Stay (RFS).

The attorney will likely ask what you're trying to accomplish. Are you looking for sanctions for a "potential" stay violation, or you just looking to drag out the eviction.

[Sroe]

I am definitely on the "Sanctions" boat. I have already made arrangements to leave.

He is just one of those people that thinks they are above the law, and don't have to follow the procedures or obey the restrictions that other people do.

[justbroke]

Please remember that to recover sanctions you typically have to show some "injury". By "injury" that means that you incurred some cost because of the violation. Any attorney fees will certainly be covered. In every sanction motion that I have tried, I settled nearly every one of them and they were all in my favor. I only lost once.

You'll have to see if an attorney will take this "stay violation" case on contingency.

[Sroe]

Well, in this area, no property manager will touch me with an open bk. So, I am going to have to be spending the next couple of months in a SRO motel. This will take my rent costs up by 50%. There is also the costs of storing my belongings since I lost 8 days of preparation time for the move. Plus the moving costs are increased as I lose some time for prep, etc. I am going to have to hire help that I would not have had to otherwise.

In addition, I am wondering what I can do in Superior Court, as there are some steps he missed in the process. THe UD-115 states that I have we both have the right to a hearing in regards to any default, and he completely skipped that. But, that is not a topic for this forum.

[Sroe]

I have heard of punitive damages being awarded. I think I can show this was intentional on his part, as he has had the benefit of an attorney and has sent texts regarding his intent.

[justbroke]

I have heard of punitive damages being awarded. I think I can show this was intentional on his part, as he has had the benefit of an attorney and has sent texts regarding his intent.

Based on my experience in the Bankruptcy Court, punitive damages can only be awarded if there are actual damages. Punitive damages are awarded to change behavior -- at least in the bankruptcy court context. I learned a lot from litigating these stay violations and it is not that often that the judges -- in bankruptcy court -- award punitive damages unless the action is egregious. (Egregious example: the landlord changed the locks and threw your belongings in the trash 3 days before you were to move out and 2 days after receiving notice of your bankruptcy... that would be egregious because they had constructive notice.)

If you are Pro Se and want to not leave, you could use the bankruptcy court to stay the execution of the writ of possession. I will not say that it will be easy, but at least the (bankruptcy) judge could rule on whether it was a.) a stay violation or appears to be a stay violation, b.) was intentional (not a "technical violation"), and c.) whether the landlord should have proceeded with an RFS motion. For example, you say you have texts that show his "intent", but if he misunderstood the law then it could be perceived as a mere technical violation.

If you were going to pursue the stay violation, then you should have already done so in the bankruptcy court and ask that the State unlawful detainer be stayed. You'd do this as an emergency ex-parte motion for expedited hearing. And with that I say that you may be ill-prepared to do this on your own and you may find that even if there was a "technical" violation, are sanctions (actual or punitive damages) warranted. Judges can be fickle and really hard to read.

To find out if you really have a case, see if a bankruptcy attorney will take this on contingency. If they do, then they believe it's something other than a technical violation and they will recover their costs at a minimum. You have to remember that the bankruptcy laws changed in 2005 to be more helpful to landlords in the middle of an eviction. The code and rules changed so that you can have expedited hearings and made a judgment (that had been entered prior to filing) unaffected by the automatic stay.

Also, I looked at your form again. You say that box 6b is checked, but does it have a hearing date? When you filed your petition, did you fill out the section on page 2 of the Petition (Official Form 1) regarding this action? Did you list this action on your Statement of Financial Affairs under Question 4 (Suits and administrative proceedings, executions, garnishments and attachments)? Did you list the landlord as a creditor? Did you list the lease on Schedule G? Did you list the lease on your Statement of Intentions? Did you list the landlord and their address in the Creditors Matrix? (Just some questions that could be asked.)

[Sroe]

To answer your questions;

Hearing Date: No, as there was no default at that time. Most of the others were also "No" except I did list the landlord as a creditor on my Creditor's Matrix and on Schedule G. I did mention it on the Statement of Financial Affairs under Part 4, question #9. I did not mention it on page 2 of the petition. I did not mention it on the Statement of Intentions.

[Sroe]

I am still able to amend most of these, though.

[justbroke]

I was just wondering. You clearly listed the landlord and the eviction lawsuit. As I wrote, I would see if an attorney would take this on contingency. It's a close call but my non-legal opinion is that this is at least a technical violation of the stay inasmuch as there was no judgment "entered" prior to the filing of the petition and the landlord had at least constructive notice. Again, a smart landlord would have at least filed, what we call in our District, a Motion for Order Confirming Absence or Termination of Automatic Stay to insure that the stay was not actually in affect for this specific debt.