Rent, landlord and Chapter 7

[wiggybrain]

I filed for chapter 7 on 8/30/2019. Lease was on Schedule G but landlord wasn't a creditor since I was current. Gave my landlord rent check for December 2019 with a "Pls hold till 12/27" post-it on the check and a note explaining I just started new job, am working for a China based company and this is soonest check can be cashed. Landlord texted me and roommates (who are co-tenants on lease) saying if he is not paid my $700 immediately then they (the roommates) need to come up with money. I explained to one of my roommates that I don't have the money now and no way to get it. (Can't get blood from a stone.)

I know that in order to evict me, that my landlord would need to file a motion for relief from stay. So is my landlord constantly contacting me for my rent payment now a violation of the automatic stay?

Or is it not a violation because it's post petition debt?

Thank you for your help and insight.

[justbroke]

It's post petition debt.

[wiggybrain]

So does that mean the landlord is not in violation of the automatic stay?

He'd still need to file a motion for relief from the automatic stay in order to evict me even though it's post petition debt.

[justbroke]

If they were listed on Schedule G (Executory Contracts and Leases) and you assumed the lease (didn't reject the lease), then I would think that they were still under the terms of the automatic stay. In order to assume a lease, you typically need to take an action to assume the lease. That usually means a Motion to Assume/Reject Residential lease. If you didn't do that, the lease is automatically rejected on Day 61 after filing (by operation of law).

But, the real deal may be the roommates. The Landlord can pursue them as non co-debtors. The Landlord can tell them that their failure to make post-petition payments is a violation. I believe the landlord can also tell you that your failure to make post-petition payments can result in an eviction. But, alas, the landlord can't move to evict you because of the stay.

A landlord should file an Emergency Motion for Relief from the Automatic Stay (RFS) to proceed with eviction.

As for whether asking about post-petition payments is a violation, I don't think it is likely a violation. I say this because they are not trying to collect a debt that is covered by the automatic stay (pre-petition payments), or trying to take a legal action based on the pre-petition debt. However, the property may still be covered by the automatic stay and the smart landlord should file an Emergency or Expedited Motion for Relief from the Automatic Stay. The bankruptcy court will typically expedite these to be heard in 10 days.

Just something additional for you to think about. Since you have rejected the lease, by not taking action, the landlord should take another look. The landlord should be worried as to whether you'll make the January 1st (2020) payment on-time, and that since you rejected the lease they could not pursue you personally. That landlord should look to (and appears to already have) the roomates, who are subject to the terms of the lease, for payment.

[wiggybrain]

So if my landlord wanted to evict me for post petition debt which is the rent, they’d still need the automatic stay lifted?

[justbroke]

So if my landlord wanted to evict me for post petition debt which is the rent, they’d still need the automatic stay lifted?

I can't tell whether or not the automatic stay still applies after the lease was automatically rejected. If I were the landlord, I would just make sure that the automatic stay is still does not apply by filing a Motion to Confirm Stay Doesn't Apply, or just a regular relief request.

I don't know what your landlord knows (about bankruptcy) or how long they'll wait.

What I was trying to focus on is that you should make every effort to make the December 2019 payment and to be on time for January. If your roommates choose to cover your amount until then, that may be fine. In fact, roommates that all signed the lease are usually each individually, and jointly, liable for the rent. This is probably why the landlord sought payment from them, because they are still responsible regardless of your ability or inability to pay.

[flashoflight]

Dumb question.... did you actually tell the landlord about your BK and give him the case number? The constant texting by itself is a violation of the automatic stay if it applies to your landlord. My gut feeling is that the automatic stay applies since the lease itself was pre-petition, but only if he knows about it. If you have a lawyer, he should be talking to the landlord about the texting.

[despritfreya]

OP should review this article I found on the Internet. . .

https://business-finance-restructuring.weil.com/assumption-and-rejection/when-is-a-debtor-really-off-the-hook-on-a-rejected-lease-the-answer-may-not-be-as-simple-as-you-think/

The above references a 2011 Florida bk court decision. I am sure other decisions rule differently. Regardless, under 11 USC 365(d)(1) OP's lease was rejected by operation of law on or about October 31, 2019.

Des.

[bcohen]

As the above-referenced article points out, rent which becomes due and payable after your bankruptcy filing date is a post-petition debt, and remains enforceable, regardless of the fact that the lease was rejected in bankruptcy. Thus, while the automatic stay may delay the landlord's taking action to enforce the debt, they certainly will, and soon!

In any case, since the OP has roommates who did not file, a smart landlord would go after the roommates for payment, and let them fight it out with their bankrupt roommate. It would not make sense to go after the OP at this time, because the roommates are contractually liable for the entire monthly rent.

[wiggybrain]

Thank you everyone for your response!

Seems my landlord has decided NOT to go after my roommates for the rent as I received a letter from my landlord's attorney on Friday. The letter stated that if I don't move out by the end of the month, that they will proceed with an eviction case against me.

[wiggybrain]

OP should review this article I found on the Internet. . .

https://business-finance-restructuring.weil.com/assumption-and-rejection/when-is-a-debtor-really-off-the-hook-on-a-rejected-lease-the-answer-may-not-be-as-simple-as-you-think/

The above references a 2011 Florida bk court decision. I am sure other decisions rule differently. Regardless, under 11 USC 365(d)(1) OP's lease was rejected by operation of law on or about October 31, 2019.

Des.

This wouldn't necessarily apply since I did list the lease on Schedule G and it seems the debtor referenced in this case failed to list theirs.

[Doug7914]

Does anyone know what happens if you have an expired lease and now play month to month. Where do you list that on your filing ?

[justbroke]

Does anyone know what happens if you have an expired lease and now play month to month. Where do you list that on your filing ?

You wouldn't list an expired lease. This is because a month-to-month renewal, on an expired lease, expires each term (30 days) until the next payment is made.

[bcohen]

Does anyone know what happens if you have an expired lease and now play month to month. Where do you list that on your filing ?

You don't list that anywhere, except on Schedule J (your expenses). There is no lease to list on Schedule G, but the rent and utilities you are paying each month are still expenses which you need to list.