Owner occupied home

[MadieGray]

I bought an owner occupied home/went thru the courts and got a judgement for writ of possession. On Friday we were to meet the sheriff to change the locks and the former owner filed for bankruptcy on Thursday. The sheriff's office was advised that this constituted a stay. Since I am not a creditor or landlord is this correct? (The guy lost the house to the bank over 2 years ago). Any help would be much appreciated.

[justbroke]

Welcome to BKForum!

From my understand, a bankruptcy stays any action to collect on any judgment, so the Writ of Possession is a collection action being executed because you have a judgement of foreclosure/sale and/or as a result of an eviction action. Either way, even if I have the terminology wrong, you should file an emergency motion with the bankruptcy court to be relieved of the bankruptcy stay. As I understand it, there's a special process for eviction-related actions.

I'm assuming that this was a purchased from a foreclosure action.

I think you need to file a Motion for Relief from the Automatic Stay (RFS) in the bankruptcy court so that the Sheriff/Marshall will execute that writ. You can do that through an attorney or on your own. I can't tell you wheter or not the debtor will answer the RFS motion and try to delay you. I believe, however, that the RFS could be done rather quickly and filed as an emergency motion to be heard within a few weeks. If the debtor, or their attorney, try to extend the time by answering the motion and seeking a hearing, the delay could be longer.

I would recommend hiring an attorney for this.

[MadieGray]

I do have an attorney but he is also finding the law unclear due to the changes the Supreme Court made to seperate evictions of rentals compared to previous owners. Since we never had any kind of monetary relationship with him I don't see how filing can stay this.
The other problem is that he is due to probably go to jail for his 3rd DUI on Feb 2nd and I have no clue what my rights will be then. I have until Feb. 1st to make repairs or will lose my ridiculously expensive insurance also.

[justbroke]

It doesn't matter if filing can stay this. It seems that the Sheriff won't budge so you need an order of the court either confirming that the Stay does not exist, or granting relief from the automatic stay.

I'm thinking that your (bankruptcy) attorney should simply file an Emergency Motion for Relief from the Automatic Stay or Verify that the Stay Does Not Exist. (I have seen this type of "verification" RFS motion in the past. Many times creditors use such a motion to make sure they won't get in trouble if they proceed under non-bankruptcy law.)

I'm thinking that if your bankruptcy attorney reviews that bankruptcy and looks at Form B101 (the petition itself), they should look at Question 11 and see what the debtor put there. This is because you do have a judgement and the debtor is required to complete form Initial Statement About an Eviction Judgment Against You (Form B101A). If they didn't submit Form B101A, your attorney should be able to get the judge to -- sua sponte -- issue the RFS (or confirm that the RFS is not in force).

There are very specific rules about this and you should be speaking with a bankruptcy attorney.