Expert: Norma Duenas - California Bankruptcy Attorney - 12/27/2009

Question
QUESTION: We did not reaffirm our rental agreement with our landlord.  With Chapter 7, is it required to do so when you are not making rental payments and do not want to reaffirm with the landlord.  The landlord filed Bankruptcy before us, which we did not know and during the process the home was awarded back to the bank immediately.  Now the landlord is trying to get a judgement of a Unlawful detainer on us due to a fixed lease contract.

ANSWER: Generally lease agreements for rental property are not reaffirmed in a Chapter 7 bankruptcy. You are not required to reaffirm the lease agreement but you should continue to make your rental payments if you want to continue on the premises.  If you do not continue to make your rental payments after he filed for bankruptcy, then the landlord  has a right to obtain an unlawful detainer.  Even if you are making your payments, the landlord is also entitled to reject a lease agreement for the property and seek an unlawful detainer.

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QUESTION: We have a judgement from the Federal judge stating that the home has been awarded to the bank during our landlord BK during the month of July o9.  Can they file a Unlawful detainer on us in November of 09?  From the information that I have obtain the home has been awarded back to the bank during her bankruptcy. They filed a motion for relief and lost.  So therefore the Judge gave the bank immediate possession of the home.

Answer
They can eventually file an unlawful detainer action, but the notice period will depend on what basis they are having you removed from the property. Depending on the state, they will generally be required to provide you with some time of notice requirement before proceeding to obtain an unlawful detainer.