Bankruptcy & Evictions

Evictions happen when a tenant or tenants are removed from the property they are living in by the owner of the land or building. In order to begin an eviction process, the owner must give the tenant notice that they must vacate the property within a certain amount of time. Failure to vacate within the time prescribed may force the Landlord and Tenant to participate in litigation.

Why would I be Evicted? Evictions can occur for a multitude of reasons all of which should be listed in your specific rental agreement. The most common reasons for an eviction are the tenants failure to pay rent, the tenant damaging the property, illegal activity taking place on the property  or any other violation of the terms of the rental agreement.  

How Do I Receive Proper Notice of an Eviction? Service of the notice may be in person or by a process server. If the tenant cannot be served personally, the notice may be attached to the door of the unit and the notice mailed to the tenant. The notice must contain the name and address of the tenant and the landlord. It must also be signed by the landlord, contain the specific reason for the eviction and the time permitted for the tenant to remedy the breach if applicable.

What Happens if I Don’t Leave After Receiving The Notice? After notice has expired on the Notice of Eviction and you still have not moved out, your landlord will need to file and have you served with a Summons and Complaint for Unlawful Detainer. If the complaint is for possession only and the reason is for material noncompliance with rental provision or conduct detrimental to the health and safety of others, the tenant has 7 days to respond. Should the complaint be for nonpayment of rent, the time to respond is 14-days. Failure to respond or object to the complaint will place the tenant in default.

If I Respond to the Summons and Complaint for Unlawful Detainer, Will I Have to Go to Court? Yes, a hearing on the unlawful detainer will be held before a judge only. Both sides may present evidence and witnesses. It is the landlord who must prove that the notice was properly given. The landlord must also prove that the tenant breached the rental agreement. A judgment in favor of the landlord can include monetary damages including back rent, attorney’s fees and service of process fees, if any.

Do I Have a Defense Against Eviction? Yes, there are many defenses to eviction which you may be able to argue. Some common defenses are the Breach of Warranty of Habitability, Retaliatory Eviction, and Discrimination. A Breach of Warranty of Habitability occurs when the landlord fails to comply with any applicable building and housing codes necessary to maintain the premises in a habitable condition. The tenant must make several steps in order to claim a breach of warranty of habitability defense. The defense of Retaliatory Eviction applies when the tenant feels they are being evicted because they have approached the landlord with complaining about the unit or because they have joined a tenant’s rights union. The defense of discrimination only comes in to place when a landlord evicts someone based on a state or federal recognized protected class. Discrimination may also occur when you are disabled if the landlord refuses to make reasonable accommodations for your disability.

Are there Ways To Stop Evictions? The Landlord may offer several a couple of ways to stop the eviction. Some common examples are paying the rent current, waiver of the rent, or filing bankruptcy. 

How Does Bankruptcy Help? A bankruptcy can help in one of two ways with the eviction. 

If you file a bankruptcy prior to the actual eviction order of the property, you can avoid it. If you file a Chapter 13 bankruptcy, you can pay the past-due amount through the bankruptcy while continuing to pay the lease payments as they come due. If you file a Chapter 7 bankruptcy you can temporarily stop the eviction but if the default is not cured, the eviction will still move forward. 

If you file a bankruptcy after the eviction has occurred, your debt becomes an unsecured debt which can be discharged in either a Chapter 7 or a Chapter 13