Expert: Terry Leeders - 8/4/2009

Question
my residential tentant did not pay july rent.  using an eviction company, i served 3-day notice.  they did not respond.  i then served the eviction summons which gave them 5 days to respond.  on the fifth day they filed chapt 7 bankruptcy.  what would be my best course.  to ask judge to lift stay or wait for the creditor hearing in 30 days and what will happen to me/landlord then?  appreciate any help.  i'm in florida.  thanks!

Answer
Contact a local bankruptcy attorney.  There were changes put into the code that might allow you to continue eviction proceedings. You can also file a motion to confirm the absence of the stay just to be safe.  What it comes down to, is that you can get an order of possession, but you cannot collect on the debt.

the applicable statute states:

11 USC sec. 362:
(b) The filing of a petition under section 301, 302, or 303  of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay--


(22) subject to subsection (l), under subsection (a)(3), of the continuation of 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 the filing of the bankruptcy petition, a judgment for possession of such property against the debtor;

(23) subject to subsection (m), under subsection (a)(3), of an eviction action that seeks possession of the residential property in which the debtor resides as a tenant under a lease or rental agreement based on endangerment of such property or the illegal use of controlled substances on such property, but only if the lessor files with the court, and serves upon the debtor, a certification under penalty of perjury that such an eviction action has been filed, or that the debtor, during the 30-day period preceding the date of the filing of the certification, has endangered property or illegally used or allowed to be used a controlled substance on the property;


So, read these in accordance with http://doney.net/bkcode/11usc0362.htm#362(a)(3)
subsection (l), under subsection (a)(3)