NEED HELP ASAP!!! CH 7 Collection Question regarding RENT and EVICTION!!

[443gogreen]

We filed a Chapter 7 BK in March 2009. We became behind in our rent (during the automatic stay) and our landlord (well aware of the filing) took us to rent court and was issued 2 judgments which we were forced to pay in District Court. He was included as a creditor in our case and I need to know what debt was discharged. Would it have been the 2 months rent we missed prior to the filing? We have remained current since the discharge but now are a month behind. I have filed a motion to reopen the case. Does this re-enact the stay? Are we able to collect the monies that he illegally pursued during the Stay? And, can I file a motion in District Court to have the judgements vacated based on the fact that they were issued during a BK. I've had other judgments vacated that were in place during the BK but wasn't sure about the rental ones. They were monetary judgments. Thanks!

[justbroke]

We have remained current since the discharge but now are a month behind. I have filed a motion to reopen the case. Does this re-enact the stay?

You re-opened your case because you're behind, again? I don't understand why you'd re-open your case at all. What are you doing anyhow? Are you a pro se filer?

Are we able to collect the monies that he illegally pursued during the Stay?

If you went to "Rent Court" why didn't you raise the issues of a Bankruptcy Stay then?

And, can I file a motion in District Court to have the judgements vacated based on the fact that they were issued during a BK. I've had other judgments vacated that were in place during the BK but wasn't sure about the rental ones. They were monetary judgments.

I can't tell with what little information there is. Dealing with landlords is entirely different than most other creditors in Bankruptcy (Utilities have special rights too). Now whether you have a stay violation issue may depend on whether the landlord was already pursuing your before you filed. If so, then the stay probably disappeared 30 days after filing, as to the landlord and lease.

Since you became delinquent post-petition, that is not discharged at all.

Bankruptcy does not allow you to stay somewhere and have free rent. You were in default post-petition and that alone will be something that may be difficult for you to overcome. Now you're past due again and are probably subject to eviction.

I'll even go one further. If you didn't "assume" the lease by filing a Motion to Assume Unexpired Residential Lease and/or mark the lease as such on your Statement of Intentions, the automatic stay... automatically stopped as to the landlord and the lease, 60 days after filing.

If you did assume the lease, you still had to pay all pre and post-petition rents. You don't get to discharge it.

I think you may have just wasted $260.

[music12]

wow. your landlord totally violated the automatic stay. how were you forced to pay the rent? did you tell the state court about the bk?

the only rent discharged was the rent due prior to filing. any rent after that is not discharged. however, the landlord was required to go to the bk court to get a relief from stay before he went to state court to pursue you while your case was open. i don't think that reopening your case puts the stay back in place. however, i believe you are entitled to damages for your landlord pursuing you during the bk without seeking permission from the court. those damages could be high given how far this landlord went - all the way to forcing you to pay, presumably to avoid eviction.

another piece of advice is: try to keep current with your rent, but even then also do realize that no matter what the law says, this particular landlord wants you out. so find another place and move. i made the mistake of fighting my landlord for several wasted years. just move as soon as you can (though i know it may be difficult with the bk now on your record...) - no apt is irreplaceable.

[music12]

given what justbroke just wrote, i would defer to his opinion, he knows more about this than i do.

i would add though that if it's a month-to-month agreement then what justbroke said about assuming a lease probably does not apply. also, if the landlord did pursue you after you filed but before the 30 or 60 days passed, then they were in violation of the stay.

[HHM]

There probably was a violation of the automatic stay, See BK code section 362(B)22 and 23, it talks about the types of eviction proceedings that can continue despite the automatic stay. However, as Justbroke pointed out, why wasn't this raised at the eviction hearing.

Big picture, however, is what do you hope to accomplish? Even if you reopen your case an pursue a stay violation, you will still be evicted from your apartment if you are behind on rent.

[backtoschool]

Landlords do not lose their right to evict you if you are behind in rent, even if you file for bankruptcy. The landlord would have had to file to lift the automatic stay though so it sounds like the landlord is in violation, but you will have to prosecute the landlord and prove the violation, and there is still no guarantee that the judge will award any fee to you.

Any rent due after you are discharged is not dischargeable.

Reopening your case will allow the landlord to file for a lift of the stay and then evict you, so reopening the case will not postpone an eviction for very long.