Friday, September 25, 2009

Automatic Stay Refresher Course

I had a defendant file bankruptcy last week to prevent an eviction. He filed bankruptcy two days before the eviction was scheduled to occur. His hand-written petition listed my client, the landlord, as his only creditor.

What this defendant did not know, however, was that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") amended Section 362 of the code so that the automatic stay does not apply to "any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of filing of the bankruptcy petition, a judgment for possession of such property against the debtor."

In other words, you can't file bankruptcy to prevent an eviction when your landlord has already obtained an order of possession. He was evicted on Monday.

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