Renting month-to-month. Will filing cause self eviction? (CA)

[bornfree2]

Im trying to wrap my head around 'unexpired' leases. I have been on a month to month at an apartment past the original year lease. I owe back rent because CA COVID 'rent relief' protection has prevented me from eviction and homelessness.

Im realizing now if i file BK and list my landlord as a creditor, I will have to say this is an expired lease (cause its past the year, but now month to month.. am i correct?). If I say that, then from what ive gathered online, it means i am choosing to give up the apartment.

It appears to be a case of cant have your cake (the back rent discharge) and eat it too (continue living there)

Thats the last thing i want! I want to remain housed for the rest of the year as I pick myself back up and work towards full employment to pay full rent (and back rent).

Am I correct in thinking that if i list the landlord and discharge the back rent, then i am also saying I intend to move out?

If I dont list them, then they (presumably) will eventually want to evict me when they can. In CA i think there is a 60 day no fault eviction when the lease turns month to month. It all comes down to paying their back rent in full. But who knows how they will treat me afterwards.

Seems i loose loose in this case. I cant discharge the rent for fear of evicting myself, and If i do pay back that rent eviction will happen. Which will make renting after that even harder with the BK, bad credit on top of it. Oy vey!!

A pro landlord article on their moves once i file

https://rentprep.com/legal/residenti...es-bankruptcy/

I am also parsing through this post here to make sense of it

https://www.bkforum.com/forum/before-the-discharge/chapter-7/1019353-rent-landlord-and-chapter-7

[flashoflight]

If you weren't behind on your rent, you don't need to send notice to your landlord on a month-to-month. Your landlord won't know about the BK which is definitely desirable. But that's not your situation.

Since you have a rent arrearage, you'd want to have already moved out to another place and list your old landlord as a creditor when you file BK. Remember you need to fund a new security deposit and first month's rent at your new place vs. trying to catch up.

I think I said this already, but you need to move out even if you somehow have a way catch up. If I were your landlord, I'd end your lease anyway due to rent history and you have a BK on your record. But most people who are broke have no prayer of ever catching up on rent arrearage. The government rent relief programs are a joke and almost nobody has been able to get a dime whether it's the landlord or tenant. Morally it's wrong to not pay your old landlord, but you gotta do what you gotta do and save up for the new place and moving expenses instead of flushing money down the toilet. To me, paying your old landlord is almost as foolish as paying your credit cards. You're just too far down the rabbit hole.

If you can stay at family for free for a few months or a year, that would be desirable since you'd have to explain the landlord reference. Some landlords will lie to the new landlord and say you're a great tenant who pays on time to expeditiously get rid of you.

I live in California as well. There are lots of service industry businesses that are literally begging for workers now. So I'm a little puzzled if you are still having trouble finding ANY job. Desirable jobs are still hard to get. If you do live in the middle of nowhere with no jobs (isolated San Joaquin Valley towns), MOVE to a better city/town. You're going to need a source of income to move to a new place unless it's family.

[flashoflight]

Forgot to add if you have a new 12 month lease and no rent arrearage with the new landlord, I'd just suffer amnesia and have them as an unlisted creditor. I know you're not supposed to do that, but yeah it could be bad if they find out you declared BK. Up to you. It's post petition debt anyway going forward with no arrearage.

[shipo]

bornfree2, I'm thinking the most prevalent recurring theme in the advice you're being given on your many threads is for you to get a job BEFORE you file; if you don't, the odds of you ending up in even worse shape than you're in now are exceedingly high.

[bcohen]

If you weren't behind on your rent, you don't need to send notice to your landlord on a month-to-month. Your landlord won't know about the BK which is definitely desirable. But that's not your situation.
Since you have a rent arrearage, you'd want to have already moved out to another place and list your old landlord as a creditor when you file BK. Remember you need to fund a new security deposit and first month's rent at your new place vs. trying to catch up...Morally it's wrong to not pay your old landlord, but you gotta do what you gotta do and save up for the new place and moving expenses instead of flushing money down the toilet. To me, paying your old landlord is almost as foolish as paying your credit cards. You're just too far down the rabbit hole.

I agree that you should not declare bankruptcy until all of the following are true:

1) You are gainfully employed and able to live on your current income without incurring debt
2) You have found somewhere else to live
3) You have vacated the rental where you owe back rent

Until then, do not declare bankruptcy. You do not benefit by doing so, and you are continuing to incur debt (unpaid rent) as well.

I live in California as well. There are lots of service industry businesses that are literally begging for workers now. So I'm a little puzzled if you are still having trouble finding ANY job. Desirable jobs are still hard to get.

Sure, companies are always hiring for jobs which gobble up most of your available time, but don't pay anywhere near enough to make ends meet. Jobs which pay $11-15 an hour, part-time, but the company wants you to be available to work every day are literally a dime a dozen. Jobs which pay a living wage are much harder to find--especially in areas where housing costs are insane.

In the context of bankruptcy, it simply does not make sense to accept any job which pays less than the amount you need to cover your monthly living expenses. You will still be incurring debt that you'll never repay, and you can do that without the hassle of working some crap job for dismal pay.

[bornfree2]

1- I agree with bcohen that getting a living wage is not an easy task when employers offer jobs that have limited hours and conflicting schedules with other jobs. Thanks to obamacare the old 40 hour a week min wage jobs were evaporated as companies moved to not have anyone over 30 hours/week so they dont have to pay them health benefits

2- I disagree strongly on the advice to vacate the unit after bk. As long as I can resume to meet rent in full before the COVID protections expire (in July 1) I am unevictable. Rumors are they will extend it again (but im not counting on that). So my plan is to clear out all my debts (including back rent), then focus hard on find a job/jobs within the 60 days that remain. At that point my top priority will be to pay full rent going forward.

3- Any back rent post petition date is also protected from action from landlord until Aug 1. They have to show why they didnt apply for relief (80% paid by gov and all that debt forgiven to me -- which is moot since the BK should wipe it out), and then I think i have a year to pay it all back. Landlord wont have cause to evict me because of the BK or back rent either. Only if i dont pay full rent, do anything illegal in the apartment, cause a nuisance, get a pet, etc from July 1 on wards (unless provisions extended).

4- Who knows maybe i can make lemonade out of lemons with this experience. Build some kind of product or service to help others through the process. I still believe in the American dream and entrepreneurship !

So as i see it the best move is to hunker down in the apartment, file the BK to wipe out the debts, then pull myself out of the unemployment hole once and for all.

This inital post was to get clarification if declaring the rental back rent would be cause or a move towards eviction. I still dont have a definite answer to this and will ask on my long list calls of attorneys this week.

[shipo]

Sorry bornfree2, my gut tells me your plan is destine for disaster. I wish you the best, but I don't think your plan sets you up for near-term success.

[bornfree2]

Sorry bornfree2, my gut tells me your plan is destine for disaster. I wish you the best, but I don't think your plan sets you up for near-term success.

im listening to this guy. i suggest everyone to hear this

https://www.youtube.com/watch?v=JmpW204X-C0

"Say to yourself everyday 'Its Possible'. It begins to shift your mental attitude. Create a larger vision for yourself. Operate out of your imagination, not your memory. Regardless of where things are in my life. I can bounce back. ITS POSSIBLE"

[justbroke]

Im trying to wrap my head around 'unexpired' leases. I have been on a month to month at an apartment past the original year lease. I owe back rent because CA COVID 'rent relief' protection has prevented me from eviction and homelessness.

Month-to-month is an expired lease.

Im realizing now if i file BK and list my landlord as a creditor, I will have to say this is an expired lease (cause its past the year, but now month to month.. am i correct?). If I say that, then from what ive gathered online, it means i am choosing to give up the apartment.

Yes, this is an expired lease. You wouldn't list them on Schedule G (Executory Contracts and Unexpired Leases). However, you'd list them as a general unsecured crditor on Schedule F (Creditors holding Unsecured Claims).

It appears to be a case of cant have your cake (the back rent discharge) and eat it too (continue living there)

There was never any way any debtor could do that. You can't discharge back rent and stay. That's not likely and the bankruptcy code never supported this! (See below on that it's up to the landlord to allow someone, after discharging a lot of debt, to keep terms in an already expired lease.)

Thats the last thing i want! I want to remain housed for the rest of the year as I pick myself back up and work towards full employment to pay full rent (and back rent).

See above. The bankruptcy code is so specific about curing leases that you'd have to cure the lease. That's difficult to do in a Chapter 7.

Am I correct in thinking that if i list the landlord and discharge the back rent, then i am also saying I intend to move out?

You're on a month-to-month expired lease. There is no landlord that I know that would allow you to stay. Now whether your specific landlord would allow you to discharge back rent and let you stay, would be up to that landlord. But remember, you're on a month-to-month subject to notification to vacate (based on local law that can be 30-60 days notice).

If I dont list them, then they (presumably) will eventually want to evict me when they can. In CA i think there is a 60 day no fault eviction when the lease turns month to month. It all comes down to paying their back rent in full. But who knows how they will treat me afterwards.

You must list all creditors (period). While this is an unexpired lease and does not get listed on Schedule G, the money that you owe definitely must be listed on Schedule F.

Seems i loose loose in this case. I cant discharge the rent for fear of evicting myself, and If i do pay back that rent eviction will happen. Which will make renting after that even harder with the BK, bad credit on top of it. Oy vey!!

Bankruptcy was never intended to allow a debtor to assume a contract/lease without the debtor holding up their side of the bargain/contract.

Bankruptcy has never allowed a person to get out of their "performance" in a contract unless the debtor rejects the contract in the bankruptcy. Could you imagine that I have a contract with Disney to perform, I file bankruptcy, and Disney still has to pay me despite me not meeting the future performance of my contract? A lease is no different. In exchange for money, the landlord (lessor) agrees to lease a premises to the lessee. Imagine you owning a property personally and the debtor is behind $36,000 in rent. They file bankruptcy, reject the lease, and don't pay the back rent. Would you want them to stay?

Having wrote all that, here are some things I see as problems which will be interesting as they play out...

• This interplay between the eviction moratorium and bankruptcy will be interesting. The simple fact is that you don't have a lease in the bankruptcy, so you can't reject that.
• If the landlord applies for the 80% relief, but you discharged the debt in bankruptcy, does the landlord still get the 80%? That's a big question and I'm sure it will need to play out in the courts.
• A California landlord does not have to participate in the rent relief program. If the landlord does not participate, what rights do they keep as a landlord.
• This is all new and there is interplay between State (California) non-bankruptcy law, bankruptcy law, and this moratorium on evictions. Will that interplay ever be tried / tested in court and what would be the result
• When the moratorium ends, there is no more protection and the lessee is put right back into the place they were before the moratorium was put in place.
• Personally, I think that a California landlord would be better off participating and at least having the opportunity to get "some" of the back rents. From what I read, it's not 80% of the entire time that rent wasn't paid. At some point it becomes only 25% of the missing rent. Still, even if averaged to 50%, that may be better than collecting $0 when a lessee files bankruptcy and discharges the past debt.
• Unfortunately, this will likely result in some number of landlord filing bankruptcy as well. Some may be able to do this with a Chapter 13, but if they are an LLC, that's a Chapter 11 and even more complex.

[bcohen]

So as i see it the best move is to hunker down in the apartment, file the BK to wipe out the debts, then pull myself out of the unemployment hole once and for all.

This inital post was to get clarification if declaring the rental back rent would be cause or a move towards eviction. I still dont have a definite answer to this and will ask on my long list calls of attorneys this week.

Huh? The "best move" is to do nothing at this time, and DO NOT DECLARE BANKRUPTCY until you are gainfully employed, and have a stable housing arrangement. A month-to-month tenancy is not a stable housing arrangement--especially when you are behind on the rent. Frankly, I don't understand why the landlord hasn't ordered you to move long ago. While it is true that the landlord cannot evict for nonpayment (due to the moratorium), they can and should have non-renewed your lease and made up a reason which will pass legal muster.

FYI, I work in heating and air conditioning in southern Arizona, and here too, we have a state-wide and county-wide moratorium on eviction for nonpayment. The company I work for services several apartment complexes, and the property managers have explained to me how they deal with tenants who aren't paying--they let the tenant stay in the apartment until the lease is expired, then they refuse to renew the lease, give a reason other than nonpayment of rent for not renewing the lease, and get the tenant out. Then they refer the debt to collections.

I will repeat this one more time. First, you need to become gainfully employed and able to pay your living expenses going forward without incurring debt. Then you need to find a new housing arrangement, and vacate your current housing arrangement. Only then, should you even consider declaring bankruptcy!

[bornfree2]

You're on a month-to-month expired lease. There is no landlord that I know that would allow you to stay. Now whether your specific landlord would allow you to discharge back rent and let you stay, would be up to that landlord. But remember, you're on a month-to-month subject to notification to vacate (based on local law that can be 30-60 days notice).

California has rent control cities. These prevent landlords from 'no-fault' evictions (the 30-60 day type) unless there is fault (basically non payment, nuisance, illegal activity, etc) or the owner wants to demolish the building or moving in themselves or immediate relative (which wont happen). This stronger law was passed jan 1 2020

https://leginfo.legislature.ca.gov/f...01920200AB1481

also see:

https://www.ranchomesarentals.com/just-cause-eviction/

In addition AB 3088 "Tenancy: rental payment default", provides addition protection due to the back rent

From this article:

"No tenant can be evicted after June 30, 2021, if they pay 25% of the rent owed from September 2020 through June 30, 2021, either monthly or in a lump sum before the final day it is due and attests they face a financial hardship due to the pandemic. Landlords can recoup the remaining balance owed after June 30, 2021, but may not use nonpayment of rent as a basis for eviction."

• This interplay between the eviction moratorium and bankruptcy will be interesting. The simple fact is that you don't have a lease in the bankruptcy, so you can't reject that.
• If the landlord applies for the 80% relief, but you discharged the debt in bankruptcy, does the landlord still get the 80%? That's a big question and I'm sure it will need to play out in the courts.
• A California landlord does not have to participate in the rent relief program. If the landlord does not participate, what rights do they keep as a landlord.
• This is all new and there is interplay between State (California) non-bankruptcy law, bankruptcy law, and this moratorium on evictions. Will that interplay ever be tried / tested in court and what would be the result
• When the moratorium ends, there is no more protection and the lessee is put right back into the place they were before the moratorium was put in place.
• Personally, I think that a California landlord would be better off participating and at least having the opportunity to get "some" of the back rents. From what I read, it's not 80% of the entire time that rent wasn't paid. At some point it becomes only 25% of the missing rent. Still, even if averaged to 50%, that may be better than collecting $0 when a lessee files bankruptcy and discharges the past debt.

Thats my thinking. Better 80% than nothing. I pointed the landlord to the websites/phone numbers. Its up to them to take action. In fact SB 91 states this:

This bill, until July 1, 2027, and with specified exceptions, would require a plaintiff in an action seeking recovery of COVID-19 rental debt, as defined, to attach to the complaint documentation showing that the plaintiff has made a good faith effort to investigate whether governmental rental assistance is available to the tenant, seek governmental rental assistance for the tenant, or cooperate with the tenant’s efforts to obtain rental assistance from any governmental entity or other third party, as provided.

The bill would authorize the court to reduce the damages awarded for any amount of COVID-19 rental debt sought if the court determines that the landlord refused to obtain state rental assistance as provided by this bill, as described below, where the tenant met the eligibility requirements and funding was available. The bill would prohibit commencement of an action to recover COVID-19 rental debt subject to these provisions until July 1, 2021, and require that the court stay proceedings in any such action pending as of the operative date of this bill until that date.

I dont know how much teeth that has with the weasel words of 'good faith effort' and court finding they 'refused to obtain aid' and especially the part of 'funding was available' (how could anyone know what a state bailout fund had at a particular time (??). On my part, I alerted them in writing, and they havent responded.

tldr; and back on topic of bankruptcy

- california rent control laws do not allow landlord to evict after 60 days for no fault, only if i dont pay rent on july 1 (totally fair)
- landlord not applying for 80% debt forgiveness will look bad on them by the small claims court
- listing landlord back rent on schedule, should be wipe on BK right...and given the above info...still keep me housed. correct?
- i hope this helps others in california my similar situation. "we are all in this together"

[bornfree2]

Huh? The "best move" is to do nothing at this time, and DO NOT DECLARE BANKRUPTCY until you are gainfully employed, and have a stable housing arrangement. A month-to-month tenancy is not a stable housing arrangement--especially when you are behind on the rent. Frankly, I don't understand why the landlord hasn't ordered you to move long ago. While it is true that the landlord cannot evict for nonpayment (due to the moratorium), they can and should have non-renewed your lease and made up a reason which will pass legal muster.

The entire reason im hustling to BK is because of a CC summons due next week. As I understand, if i dont answer, i loose by default. The collector then files for default judgement, (which takes how long?), and then leins and garnishments begin. I 100% do not want my car taken, and I dont want my bank accounted messed with garnishments.

For me, with my limited resources and bandwidth, applying for BK to prevent that stack of dominos is a good move. Maybe im operating on false assumptions. Very likely, so very much welcome the advice contrary to this BK move. Thank you

[flashoflight]

Your current plan is a giant disaster without new housing and employment. And I'm the type of person who recommends BK a lot.

One way to deal with a CC lawsuit is to let them get a default judgment. It's a lot of work to do pro se to delay your case and costs you some coin in court fees. It's not that hard to pro se defend a credit car lawsuit, but it's real work.

The way you deal with judgment creditors is to move to all cash and get a prepaid debit card like Walmart money card. In theory, a judgment creditor can garnish a prepaid card, but I've never, ever heard of that happening. You won't be traditional banking anymore unless you like your money taken away with no notice. It's like $5/month fee with those prepaid cards. If your bank account gets drained and you file an exemption with the sheriff within the very short deadline, it will take over six months for you to get your money back.

In California, it is too expensive for a judgment creditor to repo you car unless it's a personal vendetta from a former business partner because it has to be done by the sheriff. Only the lienholder for the vehicle can do a self-help repo in an economical way. But ignoring the judgment for a second - if your car loan lender repos your car, how are you going to get to a job? Are you planning to hide your car? I've hidden cars before and helped others do it but it's a real hassle.

Your number one task above all else is to gain employment like today because you need to avoid having your car repo'ed. I understand they are crap jobs with crap pay, but there are plenty of them. I really don't think you can sit and wait for a living wage job. You might have to do the 2 crap job thing. Sorry that I don't agree with buying time for a better paying job with benefits.

[shipo]

Your current plan is a giant disaster without new housing and employment...

Your number one task above all else is to gain employment like today because you need to avoid having your car repo'ed. I understand they are crap jobs with crap pay, but there are plenty of them. I really don't think you can sit and wait for a living wage job. You might have to do the 2 crap job thing. Sorry that I don't agree with buying time for a better paying job with benefits.

^^^THIS!

As the old adage from, I don't know, maybe the Great Depression, says, "If you don't have a job, you should be spending 40-hours per week finding a job."

[bornfree2]

Your current plan is a giant disaster without new housing and employment. And I'm the type of person who recommends BK a lot.

Im open to new ideas and change of strategy. Im preparing for the worst so mock filing a BK is a good investment of time for me. Getting new housing is not a good idea. I like where I live, its affordable (if i get income again), and its got probably the strongest rent control protections in the state.

One way to deal with a CC lawsuit is to let them get a default judgment. It's a lot of work to do pro se to delay your case and costs you some coin in court fees. It's not that hard to pro se defend a credit car lawsuit, but it's real work.

Im very open to this, and i got nothing but time on my hand now. I could also apply to waive the fees cause frankly I DO qualify with the pittance of cash i have left..thats why im a real no-assset BK7 case. So the only reason not to fight is my ignorance of the defense strategy. Any tips for an 'open book' and 'account stated' defense?

(I found another forum and im going through it, but there is a lot of threads and its harder to search than here...hence i applied myself to the last resort of BK pro se than credit card defense). If you have some starter references I can start going down that rabbit hole.

The way you deal with judgment creditors is to move to all cash and get a prepaid debit card like Walmart money card. In theory, a judgment creditor can garnish a prepaid card, but I've never, ever heard of that happening. You won't be traditional banking anymore unless you like your money taken away with no notice. It's like $5/month fee with those prepaid cards. If your bank account gets drained and you file an exemption with the sheriff within the very short deadline, it will take over six months for you to get your money back.

Allowing a judgement on my credit report, and then a BK later is a double strike on my credit report and next 8-10 years. I understand the different ways to 'bank' without a bank account...example: i found out yesterday that paypal offers a virtual credit card .. they give you a number and its appears as mastercard debit. Its good advice you give.

In California, it is too expensive for a judgment creditor to repo you car unless it's a personal vendetta from a former business partner because it has to be done by the sheriff. Only the lienholder for the vehicle can do a self-help repo in an economical way. But ignoring the judgment for a second - if your car loan lender repos your car, how are you going to get to a job? Are you planning to hide your car? I've hidden cars before and helped others do it but it's a real hassle.

I own my car

Your number one task above all else is to gain employment like today because you need to avoid having your car repo'ed. I understand they are crap jobs with crap pay, but there are plenty of them. I really don't think you can sit and wait for a living wage job. You might have to do the 2 crap job thing. Sorry that I don't agree with buying time for a better paying job with benefits.

I agree with you. This is a money problem. Money is the answer. hence a job and/or business venture

Thank you for your advice. I do need to hear the other side of NOT filing.