Leasing company filed motion to remove automatic stay!!!

[twiz88]

So last week I got a letter in the mail from a Law office which represents my Leasing company here in Maryland. They are requesting from the court a relief of automatic stay on my apartment I do plan on paying the balance for my rent just not right now. I was planning to have everything cleared up by the discharge date. What is the likely hood that the Trustee will grant the relief of the automatic stay to my leasing company. My 341 meeting was on 8/6/13 not sure why they are waiting so late to file this motion. Any suggestions or advice?? Thanks

[justbroke]

Did you file pro se by any chance? If not, I hope your lawyer explained to you, very specifically, taht being behind on a residential lease payment could cause the lessor to immediately seek relief and then eviction. A bankruptcy does not afford protection from eviction except in very specific cases. Even in the specific cases, the debtor must escrow every single lease payment that comes due after filing by paying it to the Clerk of the Court!

It is likely that they waited just because they didn't know what your intentions were. What did you list on the Petition (Official Form 1)? Were you in arrears when you filed?

It is the Judge (Court) that grants motions, not the Trustee. The lessor will receive relief from the automatic stay (RFS); that is a given. The lessor will then proceed with eviction. You are also now incurring legal fees, so it is no longer just the "rent" amount. I figure that the RFS is an additional $650.

Unfortunately, you are in a very bad position at this point. I wish that you were better informed of the consequences of being behind on rent payments when you file. (Or, did you get behind after you filed? I'm assuming you got behind after you filed, because the lessor would not need the bankruptcy court's permission if you only were behind "after" you filed.)

[keepmine]

If you intend to stay, you better figure out a way to pay 'em fast.
Not trying to be a downer here but, I saw your other thread where you can't pay your auto insurance and now late on your rent. It's hard to see how bk is going to help if you can't pay basic living expenses post bk.
Planning to pay but just not right now is not a plan. You need to figure out some way to both cut expenses and raise your income or this adventure will be for nothing.

[twiz88]

If you intend to stay, you better figure out a way to pay 'em fast.
Not trying to be a downer here but, I saw your other thread where you can't pay your auto insurance and now late on your rent. It's hard to see how bk is going to help if you can't pay basic living expenses post bk.
Planning to pay but just not right now is not a plan. You need to figure out some way to both cut expenses and raise your income or this adventure will be for nothing.

Actually I have money stored in a few places for things that could arise. Basic living wasn't a problem until I got into an accident which caused me not to work as much which recently happened after the 341 meeting. Now that i'm back at 100% everything is coming up all at once, which is not a problem I just have to work harder to get through this. I Planned to put money towards a vehicle since I have to surrender my current vehicle to the bank pretty soon. However Rent is more important. The other insurance post was due to the fact that I honestly didn't want to pay insurance on a vehicle that I'm giving back to the bank, a vehicle that i'm not driving any longer and furthermore I didn't want to lose my tenner with the insurance company that I have been with for years. (That issue is resolved and paid). I can pay the whole amount due for rent which is about $1400 that means I just have to put off the vehicle purchase for a little while longer. That's the reason for my statement "Planning to pay but just not right now". A few plans are indeed in effect just thinking of the right one to take first......................

[twiz88]

[twiz88]

Did you file pro se by any chance? If not, I hope your lawyer explained to you, very specifically, taht being behind on a residential lease payment could cause the lessor to immediately seek relief and then eviction. A bankruptcy does not afford protection from eviction except in very specific cases. Even in the specific cases, the debtor must escrow every single lease payment that comes due after filing by paying it to the Clerk of the Court!

It is likely that they waited just because they didn't know what your intentions were. What did you list on the Petition (Official Form 1)? Were you in arrears when you filed?

It is the Judge (Court) that grants motions, not the Trustee. The lessor will receive relief from the automatic stay (RFS); that is a given. The lessor will then proceed with eviction. You are also now incurring legal fees, so it is no longer just the "rent" amount. I figure that the RFS is an additional $650.

Unfortunately, you are in a very bad position at this point. I wish that you were better informed of the consequences of being behind on rent payments when you file. (Or, did you get behind after you filed? I'm assuming you got behind after you filed, because the lessor would not need the bankruptcy court's permission if you only were behind "after" you filed.)

I have the money to pay, never said that I'm broke and cant pay my rent I just needed to move some finances around since i'm back working at 100% I was out due to an accident. No I dont believe i'm not in a bad position if I have the money to pay. I wanted to buy a car out and have no payments so after discharge I can be in a GREAT position. NO car payments...just rent..cell phone..and basic living expenses.

[twiz88]

Yes I did file Pro Se they were listed on official form 1, I believe. however Thanks for the response. This just means I have to put off the car for a couple weeks and just give them their money. Just want to avoid car payments for sometime.

[justbroke]

If you are Pro Se then you are missing the important items that I have listed. You should go back and review what you put on Official Form B-1 (Petition) and see if you followed the very specific steps if you were in arrears at the time of filing. It appears that you either completed the section and didn't follow the specific steps, or you never completed the section and failed to make additional rent payments.

You now owe more than $1,400 (if that's the entire past due rent plus the current month's rent for October, since it is now due and payable now). You will also owe attorney fees for the lessor to have brought forth the motion for relief (RFS).

Since you are Pro Se, you are responsible for managing your case, responding to the RFS motion, and/or contacting the lessor's attorney to work out a settlement and to figure out just what you owe now (with the additional legal fees).

The reason I'm being so specific, is because your posting was very nonchalant, and continues to be, with the issue of paying your rent. I wanted you to know that as a Pro Se debtor, you have more responsibilities than a person that is represented. Your were required to have posted payments to the Clerk if you were in arrears and wanted to keep the place. What did you list on your Statement of Intentions?

[twiz88]

If you are Pro Se then you are missing the important items that I have listed. You should go back and review what you put on Official Form B-1 (Petition) and see if you followed the very specific steps if you were in arrears at the time of filing. It appears that you either completed the section and didn't follow the specific steps, or you never completed the section and failed to make additional rent payments.

You now owe more than $1,400 (if that's the entire past due rent plus the current month's rent for October, since it is now due and payable now). You will also owe attorney fees for the lessor to have brought forth the motion for relief (RFS).

Since you are Pro Se, you are responsible for managing your case, responding to the RFS motion, and/or contacting the lessor's attorney to work out a settlement and to figure out just what you owe now (with the additional legal fees).

The reason I'm being so specific, is because your posting was very nonchalant, and continues to be, with the issue of paying your rent. I wanted you to know that as a Pro Se debtor, you have more responsibilities than a person that is represented. Your were required to have posted payments to the Clerk if you were in arrears and wanted to keep the place. What did you list on your Statement of Intentions?

The RFS motion was for $1400.00 to remove the the automatic stay. The leasing company first told me that they couldn't collect rent from me and they stated they had to contact their leasing lawyer on rules and etc. since they never had a tenant file for BK. At that point I put every month worth of rent in another account until they figured out how the payments should be applied. I informed them of the laws and how I'm suppose to pay but they wouldn't accept payment. Next time I heard from them was when the motion to remove automatic stay was in my mailbox. Not sure how the post came across "nonchalant" As stated in an earlier response i'm not being charged the filing files for the relief of stay. I have until 10/15 to file the response to the motion which I have already done but payment will be made well before RFS 10/21 hearing.

As far as the actual filing the only thing that ever was sent back to me was an address for a Certificate of Service which i corrected. I'm sure i have listed the leasing company on the correct form its just not in front of me at the moment. EVERYTHING else was filed correct including an Amendment to the case.

Nonchalant and over worrying about things are two different things. I have learned a lot from filling on my own and have a better idea of where I want to be financially to never ever be in this situation again. Learned from my mistakes. I'm far from nonchalant I have worried myself for YEARS on bills and debts not gonna start worrying about things now especially after I filed BK Chapter 7 when clearly the leasing office should have token payment from me when I attempted to pay awhile ago.

But back to the original reason for the post I HAVE THE RENT MONEY! whether its $1400 or more. It can be paid with the swipe of my debit card. I just wanted to know in BK cases do they grant motions to remove automatic stay against the debtor. Now if i didn't have the money then I would be a little concerned but that's not the case. Most of the responses on this thread was "you in a bad position" "can you afford basic living expenses" and etc. Honestly not really helping me understand the motion process. I called the BK clerk and talked to the lawyer who filed the actual motion during my lunch break and they were very very helpful.

Once I pay this rent I wont have a single debt to my name and I can say it was a successful Pro Se Filing without any major problems. Maybe the question should have been asked differently, but i'm not understanding why the responses seem negative. But if i had to do something different i would just should have paid the clerk the rent payments to avoid this motion stuff but regardless I have the rent money. I can't change the past, but i can make the future better.

[justbroke]

I am trying to help you understand. There is more to the RFS than the $1,400. That is probably what is past due for rent. The motion probably also seeks attorney fees. As a Pro Se, you must respond to the RFS. Please understand that it is difficult for someone sitting at a keyboard, not knowing your case details, to recall and assume that you have escrowed the payments. (I did not find any place where you addressed the RFS motion fees, except in this last post where you indicate that they are not seeking "filing fees" -- which is attorney fees plus any court fees.)

The reason I asked about Official Form B1 (The Petition) and how you answered the questions, is exactly why I do not understand what you have done. How did your lessor get notice of your case? Did you schedule them? Did you put them on the Statement of Intentions? Did you have an unexpired lease (not an automatic renewal/month to month)? Were you in arrears before filing? These are the questions that would help your formulate your response to an RFS.

For example, if it were me, and somehow the landlord received notice, I would be responding to the RFS, answering the Motion. I would ask for it to be denied. I would also ask that any attorney fees and costs also be denied.

To answer your question again, the landlord will absolutely win an RFS motion because you are not paying. If you have a defensible position, then you object to the RFS (Debtor's Objection to Relief from the Automatic Stay Requested By ABC Apartments). You attach any exhibits, such as a letter from the lessor/landlord showing that they did not want to accept the payments. You show, via exhibits, the checks that you wrote and that were returned from you, along with the correspondence indicating that they were not accepting your payments. That is how you defend an RFS motion for failure to make leasehold payments.

As I also stated in the prior post, you, as the Pro Se attorney of record, could contact the lessor's attorney and work out a stipulated agreement on the Motion to settle it. However, by calling the attorney or even emailing them, you are incurring additional fees that they will probably seek to recover.

I apologize for nonchalant, but I used that because your posts did not answer any of my particular questions, and you keep asking whether a lessor would be granted such a motion. The answer is yes, this is routine, and this happens every single day. What you should be doing is what I posted earlier... responding to the RFS motion, and/or contacting the lessor's attorney on a settlement. It appears you have contact the lessor's attorney and you are heading in the right direction. However, I would still file an objection to the RFS Motion on the grounds I listed earlier... if you actually did those things and have that evidence.

(As a side note, the fact that the lessor stated that they wanted to contact their attorney, and then the next thing you get is an RFS Motion, is very telling. Either they wanted to end the lease due to the bankruptcy, or you had other non-payment issues in the past and they were not going to take any chances with a elongated eviction process.)

[bcohen]

(As a side note, the fact that the lessor stated that they wanted to contact their attorney, and then the next thing you get is an RFS Motion, is very telling. Either they wanted to end the lease due to the bankruptcy, or you had other non-payment issues in the past and they were not going to take any chances with a elongated eviction process.)

Before I filed for bankruptcy, I saw an attorney at the bankruptcy court to go over my petition and schedules, and answer certain questions that I had. One of the questions I asked was regarding the clause in my apartment lease that lists the act of filing for bankruptcy as a "material default" and the attorney told me that these kind of clauses are illegal and unenforceable. According to this attorney, as long as the rent is paid current at the time of filing (which it has always been) the lessor does not have the right to cease accepting rent payments and attempt to terminate the tenancy solely because the tenant has filed for bankruptcy. Fortunately, I didn't have any problems with the apartment complex, and was even able to renew the lease for another year while my BK was active.

If what the OP is saying is that he attempted to pay the rent each month, and the property manager refused to accept, then he needs to respond to this motion for relief and raise that fact as a defense--"On (date) and (date) and (date) I presented a check for the next month's rent, the landlord refused to accept or did not cash this check, and the funds are available to pay the rent in full immediately."

[justbroke]

Let me summarize what I write below as simple as the debtor/lessor, twiz88, made a procedural error.

it is true that a bankruptcy can't be in material default solely due to the filing of bankruyptcy; but there is a caveat (in 11 USC 365(g), but I'll talk about that separately). I certainly agree, bcohen, that evidence is important and that the debtor needs to show in his/her RFS Objection (response) that they attempted to pay. That will show that the lessor refused to accept the payment and the RFS would likely be denied on those grounds (attached with some stipulation that the debtor immediately pay the amounts due -- come current -- within so many days of the Order denying the RFS). But is showing attempting to pay enough to constitute "exercising" your intentions and complying with the requirements for unexpired executory contracts (leases)

I'm still wondering if the lease was assumed or rejected. If the debtor also did not assume the lease, or otherwise not follow their Statement of Intentions to reject or assume the lease, then the lessor (creditor) may be 100% correct in a.) denying acceptance of payment, and b.) filing a motion for relief from the automatic stay. There is a playbook for lessors where a tenant files for bankruptcy. What is listed on the Schedules, Statement of Intentions and the Petition itself (Form B1) are all very important.

As a former landlord myself, I can tell you that leases are very difficult to manage as they do, and should, benefit the lessee (renter). When you combine bankruptcy, the lessor should, in all cases, refer to counsel and look at what the debtor/lessor mentions in their Statement of Intentions, Schedules and Form B1 (the petition). As many people may not know, a lease is automatically "rejected" (under 11 USC 365) in 60 days from filing... typically right after the 341 Meeting. I have dealt specifically with unexpired leases and understand the consequences.

This is starting to read as a very cautious lessor that has no idea (or had none until very recently) what the intentions of the lessor/debtor are and proceeded by the book. While I can't tell what the Judge is thinking or will rule at this point, because I surely do not have all the evidence to form a personal opinion, the intentions of the debtor/lessor are going to be the most important part of this.

If the debtor/lessor is able to make an agreement with the lessee/landlord (through the landlord's attorney), then this may go away quietly.

11 USC 365(d)
(1) In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected.

(where it reads "trustee", that can also be the debtor)

justbroke's study guide: I have motioned to reject an executory contract in my Chapter 13. It was for a residential lease. I had worked out any breach issues with my landlord at the time I penned the order granting the motion to reject. In fact, an executory contract is considered to in breech the day before filing bankruptcy, where the debtor is not assuming the lease by operation of law (11 USC 365(g). The problem, really, is whether this unexpired residential lease was being assumed and what steps the debtor took to assume the lease. You never know how a specific lessor/creditor will react to the bankruptcy. Some will allow continued payments, and some will review your schedules (which they should) and make a determination as to whether you are going to assume the lease. If they find "rejection" (or rejection by default, because it's not specified), they should take reasonable precaution by refusing payment and motioning for the RFS.)

[justbroke]

As you can tell, I actually like this topic. As a former landlord, and a lessee myself, I understand the important interplay of the bankruptcy code and an unexpired lease.

[bcohen]

Many attorneys--including the ones that I saw back in 2010 when I considered bankruptcy at that time--believe that the law only requires that a lessee explicitly assume a lease for personal property which they wish to retain. This would include things like a vehicle, rented furniture, rented office equipment, etc, but not real estate. I was advised that is it NOT necessary to mention a residential apartment lease on the Statement of Intentions (though it must be listed on Schedule G, of course), however, I did explicitly assume the apartment lease on my Statement of Intentions "just in case".

In any case, I fail to see how it would be legal for the landlord to "default" the lease and refuse to accept rent payments merely because a tenant has exercised their right to file for bankruptcy protection.

[justbroke]

It is true that most do not mention an unexpired residential lease in their petition because they have been paying on time and are current. (No need to complicate things.) However, the landlord manuals for residential properties instruct landlords to take the steps that I outlined. I myself tell people not to list an unexpired residential lease if it is current and they intend to stay. This particular case here still has too many questions. There is more to this particular case than it appears on the surfact. However, I still believe that the landlord is going by the book.

There are really too many variables to determine how a lessor/landlord will respond. We (landlords) are told that if it's an expired lease (tenant is month-to-month on an auto-renewal), and the tenant files bankruptcy, to examine the Statement of Intentions and Form B1. If the tenant does not take steps to assume the lease or you get them to sign a new lease, then go for the RFS and eviction.

Not all landlords/lessees are the same, so that is what differentiates the behaviors.

http://bernsteinlaw.com/publications-list/when-a-residential-tenant-files-bankruptcy/

http://www.cwclaw.com/publications/articleDetail.aspx?id=576

http://www.nolo.com/legal-encyclopedia/bankrupt-tenants-how-new-bankruptcy-29689.html

(There are many more bankruptcy law firms that speak a great deal about this. I do concur with what the attorneys that you consulted, in 2010, stated. It is typically not a problem, unless there is a problem.)