Rent agreement and Ch 7

[rjmwx81]

I've sent my attorney an e-mail about this but I'm impatient so wanted to get some opinions here:

I currently have an agreement with my landlord where I split up this month's rent payment. I paid a portion of the rent when due on the 1st, and have a written agreement to pay the rest, plus a small late fee, on the 15th. The agreement states that if I don't pay the agreed amount on the 15th, they will immediately file eviction and I am responsible for that filing fee.

It SHOULDN'T be a problem paying this on the 15th anyway, but my bank has had issues getting my direct deposit in on time lately, and I get paid on the 15th. The landlord requires certified checks or a money order...not a personal check so I can't "float" it. That's wrinkle #1.

Wrinkle #2: I'm filing Chapter 7 on the 11th. Now, I know the automatic stay stops all court proceedings, but how does that work? If, for some reason, I'm not able to pay on the 15th, does the landlord go to court to file eviction and get told "no you can't do that?" Or do they pay the filing fee, THEN get told no? And, if so, since I agreed to that filing fee, would that be something I'd have to pay in order to "make good" on the rent when assuming the lease in BK?

[LadyInTheRed]

Your landlord cannot file for eviction while the automatic stay is in effect. That part I am certain of. The rest I am not certain of and hope someone will confirm or correct it. I believe you must either assume or reject the lease. If you assume it, all of your obligations under the lease remain. If you reject it, all of your obligations are discharged, but your landlord can evict you as allowed by state law. I do not know at what point the automatic stay is lifted for a rejected lease. It may happen automatically at some point before discharge. If you assume the lease and then default on the terms, I think the landlord would have to petition for relief from automatic stay to evict you, or wait until you are discharged. If you pay the rent before he can do that, I would hope he would not bother trying to evict you.

If your landlord tries to evict you while the stay is in effect, the court would not stop him from filing. But, assuming he gets notice of your BK, which he should, his filing of an eviction proceeding would be a violation of the stay. You could insist he dismiss the case or you will ask the bankruptcy court to award damages. If he doesn't dismiss it, I believe you can file something with the court where the eviction proceeding is filed to put a stop of it.

I would think that the direct deposit issue is at your employer's end, not the bank's. Whoever is causing the delay, I think you should insist that they get on the ball. You have a right to be paid on time.

[rjmwx81]

Yeah definitely planning on assuming the lease, otherwise it wouldn't be an issue. As for the direct deposit, it's definitely the bank...they admitted to me that they had a computer problem and SUPPOSEDLY it's been fixed. But at this point in the pre-filing process I'm paranoid about everything.