tenant with a lease filed chapter 13 after I filed unlawful detainer summons and comp

[chewitt]

tenant has a lease on my property until 4/15/2013
he is 6 months behind on payments which equal a total of $27,000
i filed unlawful detainer for possession and $27,000 delinquent rent
tenant filed chapter 13.
when can I attempt to lift stay?
can I continue with unlawful detainer and eviction once stay is lifted?
if i can't lift stay, then what can I do?
is there any chance the tenant will be able to retain residency after confirmation of 13 if i don't succeed in lift of stay and eviction?
lease is associated with a land trust, which tenant contributed $20,000 into at inception, but has now defaulted, and exhausted all initial contribution plus is delinquent an additional $7,000 as of today.
thanks in advance

[justbroke]

You need to look at the petition (Form 1) and check to see if they're seeking to cure. Look at the bottom of page 1 for "Certification by a Debtor Who Resides as a Tenant of Residential Property". See what they checked. Especially pay attention to whether they "included with this petition the deposit with the court of any rent that would become due during the 30-day period after the filing
of the petition."

Since this is a Chapter 13, the debtor may even try to cure the arrears through the plan, which could keep you waiting even longer. It would probably be better for you to hire a bankruptcy attorney yourself to make sure you do this correctly. If not, this could be strung along for some time. Also, if they do choose to cure the default, you need to be watching the Plan and ensuring that they don't default post-petition either.

Interesting, it seems that they gave you $20K on execution of the land contract, but never paid thereafter! I was wondering how they got to $27,000 for a 6 month lease (unless it's a significant "McMansion" or something). In any event, that "land contract" might be treated as an executory contract. It may also be treated as some sort of security instrument (like a mortgage). It would depend on your State's laws and how that contract was written. Depending on how it is treated by the Court/State, it could be "rejected" in the Chapter 13. The debtor may also seek to "assume" that contract and cure any default over the life of the Chapter 13. This is why you need an attorney because these are important distinctions. If it's more like a mortgage, they can definitely cure the default in the plan. This is why I suggest an attorney.

Diligence is very important. A bankruptcy attorney for you is important as well. Especially given that the land contract could be treated differently than an ordinary executory contract by the court.

[chewitt]

State is California
Tenant is attempting to retain residence
No deposit was put up
residence is in notice of default and will be foreclosed on in 90 days
I can't modify the loan or do a short sale if I don't occupy the residence
Can't afford counsel
Resident has been in lease since 4 15 2010 and pays mortgage directly but stopped 6 months ago
Payment is 4300 a month
If the trust goes away in bankruptcy am I obligated to keep him as a renter if he satisfies arrears as part of plan
Another issue
At time of default house had lost 80k in market value which he is liable for 40%
Can he duck this in BK too
Or does the arrears and the amount he owes me in loss of value get paid to me proportionately over the life of the plan

[justbroke]

The debtor can duck everything should he decide to walk away and discharge the debt. Now, as to whether he'll pay "something" back in the Chapter 13, would depend on his disposable income.

As for this property... you mention that it was previously encumbered by a mortgage (or otherwise pledged as security) on a promissory note that is in your name? This just sounds too strange. I did not know that you could convey clean title for a property to someone when the property is still encumbered.

The debtor would not be able to fix the "underlying" mortgage current through the plan because he does not have title to the home... unless there was some sort of quitclaim (QC) or non-warranty deed issued. This has trouble written all over it.

This reads like a lease option that has gone horribly bad. I'm not sure what you're trying to do other than evict the person. You should obtain legal counsel (a bankruptcy attorney specializing in residential leases and landlords) so that you are prepared to evict as soon as the stay is lifted. I don't understand why you waited 6 months to file an unlawful detainer suit. We landlords need to be vigilant and send 5-day demand notices on the 6th day!

You would not keep them as a tenant if they are in default. It reads as though they can't afford the place! If they didn't submit the next 30-day payment to the court upon filing, then they are probably not staying anyhow.