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  1. #1
    Join Date
    Aug 2017
    Posts
    15

    Default Does a Grant of Relief from Stay for an Eviction Case Also Allow You to Seek Damages

    My question involves bankruptcy in the state of: Georgia

    Long story -- sorry, but I need to include all the details to get a proper response.

    I own a house that I rent out. I had tenants who declared Chapter 13 bankruptcy in March of 2017. They did not include me, but apparently that doesn't matter; the Automatic Stay still applies. The back rent and other debts they owe to me also occurred after that filing date, but apparently the Automatic Stay still applies there, too.

    They only paid part rent in May and June, and stopped paying entirely in July, after issuing a stop-payment on a check that they had sent me to cover the arrears for May and June plus all of July's rent. After stringing me along for a couple of weeks with multiple lies about their bank "screwing them over", they finally admitted that they did not have the money to pay the rent. On August 4th I told them that they had until August 7th to pay up in full or I was filing a Dispossessory Action on Monday the 7th.

    I filed the Dispossessory Action on August 7th.

    On August 14th or 15th (I don't remember exactly), I was informed that the deadbeats were under bankruptcy protection and that my suit was in contempt of bankruptcy court. (On the 16th, they were granted their motion-to-convert from Ch. 13 to Ch. 7, which they had apparently filed on August 7th. Of course I was completely unaware of this at that time.)

    On August 24th, I dismissed the eviction case -- I was finally convinced to do so after consulting with my own attorney via an exchange of phone calls and emails that began on the 16th of August.

    On August 28th I met in person with my attorney, whereupon I paid him to file a Relief From Stay motion in the Bankruptcy Court. He filed it sometime that week.

    On September 28th, I was granted the Relief From Stay motion!! On September 29th, the deadbeats voluntarily left the property, whereupon I took possession. (Please note: The Relief From Stay motion was granted after their conversion to Ch. 7 was granted -- so it must apply to that case, yes? They cannot come along later and say that debts included in pre-conversion are discharged, right? Because I was granted a Relief From Stay after the case became Ch. 7. Which means the debts supposedly discharged by that Ch. 7 are specifically not discharged for me because I have a Relief motion, yes?)

    Also very important: The EXACT WORDS in the Relief From Stay motion are as follows: "IT IS HEREBY ORDERED that [my name]'s Motion for Relief from Automatic Stay is GRANTED and that he may proceed with the [county name] Magistrate Court civil action to immediately assert his rights and remedies pursuant to the terms of the lease contract for the property located at [the rental property's address]." (Not one word about, "it only applies to the eviction case," or "he must wait until the Ch. 7 case is discharged to pursue monetary damages," or "some of the debts are not included in this Relief motion.")

    Anyway, it took pretty much all of October to repair the damages and get the place ready to rent again, so it was October 30th before I knew how much the deadbeats owed me, whereupon I filed a civil suit in the county's Magistrate Court, demanding the monetary damages -- back rent, physical damage to the house (had to replace the carpet due to ungodly dog pee and poop contamination), civil damages related to a stopped-payment check, etc., etc... Approximately $5760 total...

    Now, of course, the deadbeats' bankruptcy lawyer is saying the following:
    a) I cannot sue for rent or damages occurring before August 16th when they were granted their Ch. 7 motion.
    b) I am in contempt for suing at all because I must wait until the Ch. 7 is discharged before I can sue.
    c) the Relief from Stay motion only applied to the eviction case.

    (How a Relief from Stay motion can apply to a case that was dismissed over a month before the motion was granted is just beyond me. Heck -- the eviction case was dismissed four or five days before the Relief From Stay motion was even filed!)

    So the lawyer is full of crap, right? I have the Relief From Stay - it says *nothing* about only being allowed to sue for damages after a certain date, or anything about having to wait until the bankruptcy is discharged before I can pursue damages in Civil Court. It specifically says that I can immediately pursue my "rights and remedies" that are in the lease contract!! So how can I be in contempt?!! (He's threatening to charge me with contempt in the Bankruptcy Court if I don't dismiss the civil case by Nov. 20th.)

    I believe that I can sue for damages before August 16th, that I do not have to wait until the bankruptcy is discharged, and that the Relief from Stay applies to all actions that I may take under the lease contract, not just the eviction that was filed on Aug 7 and dismissed on Aug 24.

    Please tell me why I am right or wrong with these assumptions.

    Thanks,

  2. #2
    Join Date
    Jul 2010
    Posts
    8,006

    Default Re: I Was Granted a Relief from Stay. Shouldn't That Apply to All Parts of This Case

    You really need to be discussing this with your attorney, who has access to the full facts and details of the case.

  3. #3
    Join Date
    Aug 2017
    Posts
    15

    Default Re: I Was Granted a Relief from Stay. Shouldn't That Apply to All Parts of This Case

    Yeah, he says all I paid him for was the Relief motion... He refuses to answer any questions about the civil case unless I pay him to represent me in that case.

    I just want a generic answer — doesn’t a Relief From Stay motion automatically cover everything?! I mean, read it! There is nothing in there about waiting, or only applying to the eviction, or any of the stuff that this lawyer says is in there... But lawyers find idiotic things in documents all the time — like the Supreme Court somehow finding a “right to privacy” in the Constitution, even where no such thing exists. The word “privacy” must be in there next to the word “muskets” somewhere...

  4. #4
    Join Date
    Sep 2005
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    98,846

    Default Re: I Was Granted a Relief from Stay. Shouldn't That Apply to All Parts of This Case

    If you filed an eviction action that was stayed by the bankruptcy, then sought relief from the stay so you could proceed with that eviction case, the relief would apply to that specific case.

  5. #5
    Join Date
    Aug 2017
    Posts
    15

    Default Re: I Was Granted a Relief from Stay. Shouldn't That Apply to All Parts of This Case

    OK, but that specific eviction case was dismissed before the motion for relief had even been sought. So the relief from stay was *not* in reference to a specific case. It is just a generic relief from stay, is it not? It says nothing about only applying for an eviction...

  6. #6
    Join Date
    Sep 2010
    Posts
    478

    Default Re: I Was Granted a Relief from Stay. Shouldn't That Apply to All Parts of This Case

    Did the tenants vacate before or after the date the Chapter 13 was converted?

    If after, what was the date of conversion? What was the date they vacated?

    Des.

  7. #7
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: I Was Granted a Relief from Stay. Shouldn't That Apply to All Parts of This Case

    I don't see why your lawyer won't answer a simple question for you. You can a copy of the motion and take it, along with a copy of the order, to a different lawyer for review.

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