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Bankruptcy Law/landlord files BK - florida

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Expert: - 1/10/2009


Question
hi,
 
it seems i am in the minority.. good tenant getting hosed by the landlord!



here is what happened..



we rented a home from a couple, about 2 months before the end of the lease, they notified us they are going under forclosure.



since our year was almost up anyway, we finish our lease (paid in full, no money due), left the house in "better than when we got it" condition.



after we move out, landlord refuses to answer phone, take calls etc...



never notified us of any claim on the deposit, so after 30 days I file suit in small claims.



we get the court date scheduled, 5 weeks before trial, i get a "motion to dismiss" from them saying they have a BK attorney (and lists their number etc)..  i dont believe they have actually filed yet, but i think they will.  looks like they sent the letter, not their attorney (and there is no attorney of record on the small claims case, and this motion hasnt been filed with the court as of yet)



can they include a security deposit and claim im a creditor?  its suppose to be held in an account, its not their money to begin with!  (now of course i assume they spent the money elsewhere, and never really had it in a seperate account like they were suppose to (fl statute 83.49)).. also a note on this, the landlords are both real estate brokers, so they know the laws.



wouldnt that be like me robbing a bank, and naming the bank as a creditor in a bk proceeding?  I didnt think you can claim illegally obtained funds as a creditor.



can i object to this motion to dismiss in small claims based that i am not a creditor and the security is not dischargable under bankruptcy?



or do i have to go to the meeting of creditors, and try to get it out that way, then re-sue them?



should i file a criminal complaint?



thanks  

Answer

Leon Bayer, Los Angele
You are indeed getting screwed. I'm very sorry to see anyone get hurt in these bankruptcy situations.

Bankruptcy does stay your lawsuit, and it may discharge this debt unless you get an order from the bankruptcy court saying the debt is non dischargeable. The notice of bankruptcy that has been give to you is completely sufficient, and it does not have to be sent to you by the debtor's lawyer.

Debts arising from an act of intentional wrongdoing, such as a willfully and malicious taking of your deposit, or breach of trust for embezzling your security deposit that was supposed to be sequestered are good examples of debts that may be excepted from a bankruptcy discharge.

You can read a bit more about that in my Guide, at
http://www.debt-relief-bankruptcy.com/faq-browse11-14/bankruptcy-guide.asp and that may give you more of an overview.

Now the bad news: The process of objecting in the bankruptcy case is very complex, and there are even strict deadlines that you must comply with. All the rules and regulations can easily trip up experienced lawyers who are not specialists in bankruptcy. A layman has almost no chance of navigating the system. I suspect that the amount of the deposit is too small to justify hiring a lawyer to fight this.

If you are not going to go through all the proper procedures to object to the bankruptcy and you have decided to walk away from this, I have two suggestions:

1.     Immediately write a letter addressed to the judge on this bankruptcy case explaining everything, and caption your letter with the bankruptcy case number. Include your name, address, and phone number. Ask that the judge to Order everyone involved to appear at a hearing to tell their side of things and ask that the judge make a ruling that the debt is not discharged. In your letter ask the judge to suspend the normal rules and procedures in this case because the amount of money is too small to justify the expense of hiring a lawyer. It is rare, but every once in a while a judge might take such a letter and treat it as an "informal" objection and set the matter for a hearing. A judge does have the power to suspend the normal rules and procedures if the judge feels that it will be just to do so. As a condition of doing this, the court clerk may require you to pay a filing fee. Don't be disappointed if you do write such a letter and nothing comes of it.

2.    You can make a complaint to the Florida Dept. of Real Estate, (or whatever state agency licenses real estate agents), and ask that these people lose their licenses.

Good luck to you.  

Los Angeles Bankruptcy Lawyer Leon D. Bayer

Expertise

Leon Bayer has successfully represented clients in bankruptcy for over 30 years. He is frequently called upon by the media, the California Bar and other associations to provide insight and help educate attorneys on bankruptcy issues. If you or other readers want to keep up with my blog postings about life in and out of bankruptcy, you can follow my blog at http://www.bankruptcyblogger.org/ and my personal web site at http://www.debt-relief-bankruptcy.com and A Human Guide to Bankruptcy at http://www.thebankruptcyguide.net/ Leon also writes about bankruptcy law for Nolo, see http://www.nolo.com/law-authors/leon-bayer.html and his "Ask Leon" bankruptcy law blog column at http://blog.nolo.com/bankruptcy/

Experience

Leon is a Certified Specialist in Bankruptcy Law by the State Bar of California, and has been a practicing bankruptcy lawyer in Los Angeles, California for 33 years.

Organizations
National Association of Consumer Bankruptcy Lawyers, California Bar Association, Los Angeles County Bar Association.

Publications
Author, ?The Essentials Of Chapter 13,? Daily Journal Report, December 18, 1987.
Contributing Editor, Basic Bankruptcy, California Practice Handbook, Matthew Bender 1992, 1993.
CEB Consultant, CEB-Personal and Small Business Bankruptcy Practice in California, 2003.


Education/Credentials
B.A., J.D.

Awards and Honors
President, 1995-1996-Los Angeles Bankruptcy Forum; Member - Los Angeles County Bar Association Committee on Commercial Law & Bankruptcy, 1988. Law Advisory
Commission-Personal & Small Business Bankruptcy Law of the State Bar of California, 1996-2000

MR. BAYER SAYS: The big banks and credit card companys have been working overtime for many years to undermine the Consitutional right of the American people to be able to claim bankruptcy protection. In 2005 the banking lobby successfully convinced Congress and the President to make the laws and proceedures more complicated, hopeing that it will stymie legitimate people from filing bankruptcy. They succeeded in gaining these complex new legal proceedures by greasing the legislative system with hundreds of millions of dollars in "campaign contributions." The good news for the American people is that while the new laws have made the proceedures needlessly complex to the point where inexperienced people can't help but trip over the maze of new rules and regulations, the process is still doable, especially with a lawyer who is well trained and experienced in this specialty.

Past/Present Clients
I have probably handled something on the order of about 15,000 bankruptcy cases thropughout my career.

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