Page Two

     You may have read or heard rumors that if a tenant files for bankruptcy it means they can live rent free for as long as one year. So long as you are diligent and careful, that kink of a delay should never happen. under usual circumstances, a bankruptcy filing will delay the eviction process anywhere from between two and ten weeks. The actual timeframe depends upon how quickly the motion for relief of stay is filed, the particular bankruptcy court's local procedural rules, and if the motion can be expedited through an ex parte procedure.

     An ex parte motion request the court to grant you immediate relief in lieu of requiring a formal, noticed motion. One of the primary requirements for a successful ex parte motion to be granted is whether or not the eviction notice declares a forfeiture of the tenant's lease or rental agreement. It is therefore important to examine your form notices to see if they contain the correct forfeiture language. All of the California Apartment Association forms have the correct verbiage.

     The primary defense to the motion for relief of stay is a claim that the tenant has an ownership interest in the property, this is rarely found in residential rental arrangements. The courts routinely grant the landlord's motion for relief of stay. However, the result of the tenant's action is to waste taxpayer dollars, to expend court time, lose rent for property owners and ruin a tenant's credit. This, in turn, increases the risk that rents will be increased to cove such losses.

     Thanks to legislation sponsored by the California Apartment Association, tenants who are being evicted can no longer stop the process by filing for bankruptcy if their petition is filed after the landlord receives a judgment for possession in Unlawful Detainer. If such a judgment is obtained, the lockout will go forward if the tenant's bankruptcy petition is filed post-judgment. Although this legislation was passed years ago, Sheriffs' departments throughout the state were skeptical of continuing with the lockout for fear they would be in contempt of the federal bankruptcy court.

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