How is Rent Calcuated if Part of Your Rent Arrears are Included in a Bankruptcy
My question involves bankruptcy in the state of: ARIZONA
i filed pro per and because i was out of town on business missed the docs filing deadline. The court dismissed my chapter 13. I got back into town filed everything had the bk reinstated but the stay was not. My Nov rent was in the Chapter 13. They accepted my December rent but refused my January rent.
I was served eviction papers, was late to court by 10 mins after waiting in line to check in. My case was heard and they recd a default judgement. I explained what had happened and the judge gave me a post adjudication that says they can't proceed without getting the bankruptcy courts permission. I was told i did not have to file to have the judgement set aside and with the form the judge gave me a writ would not be issued.
The judge signed the writ on the 17th and on the 18th the constable showed up. Threw me out with just a few things. I filed in court to have the judgement set aside since the one months rent(nov) was still in my active bk and that i did pay dec but the prop mgr refused to take my jan pmt.
in court i argued that the stay doesn't matter in this situation that the bk is still valid and that without them getting the courts permission to proceed by removing the one months rent from the bk they evicted me unlawfully. The judge told the atty to get their accounting in order and we are to be seen in court tomorrow morning at 10 am.
the bk court will not reinstate my stay but did reinstate my bk.
When a stay is lifted and the bk is in tact can the creditor take dec rent apply it to nov rent (which is in the bk) and refuse the next pmt and thereby interfering with me successfully completing my chapter 13? And then evicting me?
If I have no protection in the 13 because the stay was lifted, what are my rights in the chapter 13?
Help?
Re: Eviction After Stay Was Lifted
Quote:
Quoting
bluediamond924
When a stay is lifted and the bk is in tact can the creditor take dec rent apply it to nov rent (which is in the bk) and refuse the next pmt and thereby interfering with me successfully completing my chapter 13? And then evicting me?
You'll find out tomorrow.
Quote:
Quoting
bluediamond924
If I have no protection in the 13 because the stay was lifted, what are my rights in the chapter 13?
I'm thinking that bankruptcy without an attorney is a bad idea.
Re: How is Rent Calcuated if Part of Your Rent Arrears are Included in a Bankruptcy
Filing for bankruptcy does not excuse you from your ongoing obligations, including your obligation to pay rent. If you are being evicted over rent that you failed to pay after you filed for bankruptcy, then the fact that a prior rent payment is subject to full or partial discharge in bankruptcy is irrelevant to the question of whether you can be evicted for that later non-payment.
If you believe that your rent was properly paid, save for amounts that are properly included in the bankruptcy, then you can (a) seek to have the default set aside in the state court and (b) consider filing a show cause motion in the bankruptcy court. But given the dismissal and reinstatement of your case, and our lack of information on when the eviction case was filed or why December rent was accepted but January rent was refused, you should discuss your situation in detail with a bankruptcy or landlord-tenant lawyer (or both) to determine whether you in fact have grounds for relief.
The judge in the landlord-tenant case appears to believe that the matter is stayed by the bankruptcy. You have told us that it is not. It is very possible that your landlord will be seeking an order or other documentation from the bankruptcy court to show that the stay is not in effect, to try to convince the state court to allow an eviction to proceed. Again, the details matter, so this is something for you to discuss with your lawyer(s) once they are familiar with the facts and procedural history of both cases.