Help! Automatic Stay Question

[justfiveofus]

We filed pro se chapter 7 bankruptcy on June 15th, had our 341 on July 12th.

We had a hairy situation with our landlord. We opted not to continue in the rental agreement and to find somewhere cheaper to live and with a management company who would actually FIX something when it breaks and take pride in their properties.

Any way, we consulted with an attorney to determine if we should pay our August rent to which we were advised not to since they had a $1200 deposit on hand. So to make a long story short they filed for an eviction (even though we'd given notice), they ended up dropping the case. THE DAY that we moved out, we had spoken to them that morning telling them that if we weren't able to get everything out and moved and have the place cleaned before they closed we'd call and leave the keys on the counter...since we paid for the day really we didn't have to be out until midnight. At 330 we get back to the house to clean and move the last of our stuff and the maintenance guys are there changing the locks on us. I ask them to leave, it escalates, they are screaming at me I call the cops the cops tell them they can't be there because there's no eviction.

We've been moved over a week now and today I get an Motion for Relief From Automatic Stay dated for July 30th. On top of that it is brought to the court by the very same attorney that we consulted with PRIOR to bankruptcy (we were going to use him but couldn't come up wtih the $$) and HE advised us to quit paying as well (in addition to the second opinion we received).

I am at a loss. Why file a relief of automatic stay AFTER we're completely moved out? Also, what does it mean? We have a court date evidentally set for August 26th but we have to respond prior to that... to which we still haven't actually received notice of that court date (i found this out by calling the court).

[SMinGA]

For the landlord to take back possession of the rental unit (to prepare to rent to someone else) lifting the automatic stay is a formality.

As for the atty... If you live in a small area, its not that big of a surprise that the landlord hired an atty you were considering. And this sort of motion is pretty routine - I can't think of a reason for a conflict of interests. Its not like your discussion with the atty has any bearing on the motion.

[justfiveofus]

Yeah but we're out and we have it documented that the management company stated that there was a new tenant moving in on the 29th, their maintenance guy said it to the cop and it's in a police report. There is a tenant living there.

[justfiveofus]

I looked over our paperwork and it says either we or the Trustee need to respond. Does anyone know if the Trustee ever responds and in what cases they would respond? We are just so baffled because this was all filed with the court after we moved out and after they had a new tenant.

[justbroke]

In Bankruptcy, paperwork is important. If a landlord seeks to take action, even if you "rejected" the lease, the best thing to do is to get relief from the automatic stay. It may also be so that they can use the "deposit" money since the deposit is actually property of the bankruptcy estate (most people don't know that).

[justfiveofus]

Okay well there's no action for them to take since we found a new renter, who was moving in the day after we moved out (I actually have the owner of the company saying this in a saved VM to me) ame the lease states that we are only responsible until a new renter moves in. There were no damages by us(we have over 150 pictures between move in and move out) plus a two page list of damages from when we moved in.

Since we filed pro se I'm always afraid I'm going to do or not do something and mess it up. I guess I'll talk to our trustee on Monday and see if she can tell us if we have to respond at all. If they are granted relief from the automatic stay does that 'undo' the fact that they were included as a creditor in our BK? They state in their motion that they have filed a small claim against us (the eviction) but then they dropped it...I have paperwork for both. They make it seem in their motion that they currently have a small claim against us, which I called the court yesterday and confirmed they do not.

Maybe it's time to try and find an attorney. I'm having a hard time finding information about this online.

[justbroke]

No, the relief from stay only grants them what's requested in the motion. You'd have to read the entire motion for relief from the automatic stay (RFS) in order to determine what they want! It could be permission to use the deposit. It could be permission to evict you and take possession.

Landlords are instructed to do everything by the book regardless of what you the Tenant does. This is to protect the landlord's interests. For example, if you did not reject the lease, you still have an enforceable lease and you may try to have a court enforce the lease. By filing the motion, the landlord is clearly asking the court to do something. I don't know what that something, because I do not know what's in that RFS, but a particular "prayer for relief" will be made in there, asking for something.

[justfiveofus]

Is the 'pray for relief' this...

XX CO respectfully request that upon final hearing on this Motion for Relief from Stay and pursuant to 11U.S.C 362 (d), the stay be modified and terminated to the extent necessary to permit XXCO to proceed with this Small Claims Action to collect the amount that is due and owing and that the provisions of Bankruptcy Rule 4001 (a) (3) be waived; and for such other and further relief as is just and equitable in the premises.


The small claim action that they're referring to (and have attached a copy of) basically says the plaintiff's demand posession of the house (which they have). Thanks for your input this is helping it all come together for me. I've looked through our local opinions and decisions and don't find anything similar.

[justbroke]

Okay, so it's only for possession.