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It is a pretty convoluted story but I'll hit the high points.
Tenate is pretty much a carrer con-man. He is in and out of court
constantly. He is currently on probation and facing jail time for
breaking probation, a warrant out for his arrest, and not paying child
support. Thinking it would help him in his request for a state
attorney (based on supposed indigency), and in the mean time knowing
it would stay his eviction, he filed bankruptcy. The eviction hearing
had already gone through prior to his filing, but the constables
hadn't physically put him on the curb yet. Considering all is in
Dallas, TX, what are the landlords to do?
It is my understanding that California would allow them to continue
with the eviction since it was already decided in court before the
filing (referencing here:
http://www.sfaa.org/magazine/archives/2002/0202/columnist/0202.kimballtirey.html)
and that the Supreme Court upheld this approach. Does TX follow the
same guidelines? Also, if the landlords cannot continue, that they
must file a Motion for Relief from an Automatic Stay in 2 weeks time,
which they are almost sure to be granted. (I understand the possible
complications.) And that they need to have the wording to include a
possible dismissal and re-filing so that the tenant doesn't buy more
time by making them re-do everything.
A further complication is that the lease is now expired. Can they just
kick him out because of that, considering the current stay? Just not
reference a debt, but consider it trespassing? They will be hiring an
attorney, but are looking for their own information to make sure they
are doing what is best. (And since I really am puzzled with people who
speak of themselves in third person, I want to clarify that I am not
them. I am simply a more computer-savvy friend.) Any help is
appreciated!
Lastly, will his debt to them automatically be forgiven, even though
he owes around $4500? (He has very little property that he keeps in
his name, and none of it was recently switched out. He just "borrows"
things permanently from other people.) TIA. -Christina
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It is my understanding that California would allow them to continue
with the eviction since it was already decided in court before the
filing (referencing here:
http://www.sfaa.org/magazine/archives/2002/0202/columnist/0202.kimballtirey.html)
and that the Supreme Court upheld this approach.
I can only comment on this portion of your post. The link you provide does
not reflect the current law, and may include a bad case cite. Courts in the
central and southern districts of California have ruled that even after the
kick-out order has been posted the debtor has a possessory interest in the
leasehold and continuation of the eviction process after filing of a
bankruptcy case is a violation of the automatic stay. The California Civil
Code, to the extent it permits post-judgment eviction without resort to
relief from stay, has been ruled to be unconstitutional under the Supremacy
Clause. Furthermore, I cannot find a decision in the US Supreme Court with
the parties Lee v. Baca. There is a California Court of Appeals case on
point, but the parties are Lee v. Block.
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Lastly, will his debt to them automatically be forgiven, even though
he owes around $4500? (He has very little property that he keeps in
his name, and none of it was recently switched out. He just "borrows"
things permanently from other people.)
You or your friend or whoever the landlord is should probably get an attorney.
The back rent would be a dischargeable debt, if and when the tenant's
bankruptcy gets granted. In the meantime, the tenant can still be evicted for
not paying the rent, and perhaps also for overstaying past the end of the
lease. Also, the landlord could challenge the bankruptcy (e.g., by claiming
that the tenant has more assets than what's listed on the bankruptcy papers.)
If the tenant in indeed in possession of permanently borrowed assets, those
would count as part of his bankruptcy estate. And theoretically the bankruptcy
trustee could seize them (subject to exemptions of various types) and use them
to pay off the debts.
*****
Tim Horrigan <horrigan@aol.com>
*****
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Christina wrote:
Thinking it would help him in his request for a state
attorney (based on supposed indigency), and in the mean time knowing
it would stay his eviction, he filed bankruptcy. The eviction hearing
had already gone through prior to his filing, but the constables
hadn't physically put him on the curb yet. Considering all is in
Dallas, TX, what are the landlords to do?
It is my understanding that California would allow them to continue
with the eviction since it was already decided in court before the
filing
Possible. You're probably safer getting an order from the Bankruptcy
Court for relief from stay first. If the eviction was concluded
before bankruptcy filing, you should have no trouble with this.
A further complication is that the lease is now expired. Can they just
kick him out because of that, considering the current stay?
You will still need a court order.
Lastly, will his debt to them automatically be forgiven, even though
he owes around $4500? (He has very little property that he keeps in
his name, and none of it was recently switched out. He just "borrows"
things permanently from other people.) TIA. -Christina
It seems to me that you're not likely to get any money back.
Stu
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You or your friend or whoever the landlord is should probably get an attorney.
Yes...That was my first advice as well. They are already looking.
If the tenant in indeed in possession of permanently borrowed assets, those
would count as part of his bankruptcy estate. And theoretically the bankruptcy
trustee could seize them (subject to exemptions of various types) and use them
to pay off the debts.
Good to know. Thanks for the tidbits! (And thanks for the case history
work, not cited here.)
Christina
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