If I file bankruptcy, will it stop my landlord from evicting me on an unlawful detainer action?

Maybe.

Bankruptcy will discharge your liability to the landlord for the remaining amounts owed on the lease or rental contract.  It will stop eviction proceedings if the landlord does not have an order for restitution yet.  It will not stop the eviction, if the landlord obtained a judgment for possession/order for restitution prior the bankruptcy being filed.

So, let’s say the landlord has filed eviction proceedings and now has an order for restitution, then you are out of luck.   (This does not apply to business bankruptcies or chapter 11 bankruptcies).  Eviction Notice

On the other hand, if the landlord has just barely filed the 3 day notice, or 5 day notice, or 15 day notice, the bankruptcy stops that state court proceeding briefly.  The landlord will then need to obtain relief from the automatic stay in the bankruptcy court before he can proceed with his eviction action.

Even if there is an order for restitution in place, the bankruptcy offers you some protection.  Just to clarify what that order is, according to the Utah State Courts website, the order for restitution is:

Order for restitution of the premises; Utah Code Section 78B-6-812.
The restitution order:

directs the tenant to vacate the premises, remove the tenant’s personal property, and restore possession of the premises to the landlord, or be forcibly removed by a sheriff or constable;
advises the tenant of deadline to vacate the premises, which is usually 3 calendar days following service of the order, but it might be less; and
advises the tenant of the tenant’s right to a hearing to contest the manner in which the order is enforced.

In the past, we could file a bankruptcy and at least threaten the creditor/landlord that evicting you would amount to a violation of the automatic stay in bankruptcy.  (The automatic stay stops creditors from collection actions).  However, most landlords have learned that they can still evict you from the property, so long as they don’t seize any of your property or in any other way attempt to collect on the amounts you still owe them.  So, if the landlord tried to do a lockout, we could demand access to recover your personal property.  He does not have a right to seize your personal property after we file bankruptcy.  (If the lockout and seizure occurred prior to filing bankruptcy, he may have a good argument that he can sell the seized assets).

In short, this means that bankruptcy won’t stop your eviction if the order for restitution is already in place.  At best, it will buy you two or three additional days while your landlord consults with his attorney to see if the bankruptcy actually stops the eviction or not.  If his attorney is decent, the attorney will advise him to proceed with the eviction.

 

Leave a Reply