Most of the discussion in this Blog, and most other Bankruptcy websites, involve the primary benefit and goal of Bankruptcy – the discharge of debt. Many other posts are dedicated to avoiding foreclosure so you can catch up on your payments and keep your house, and this is still primarily an issue of dealing with your debt. However, what if your debt issues have progressed to the point where you are actually facing an eviction from your home? No one is trying to collect a debt from you – instead, they are trying to get the sheriff or marshal to physically remove you and your possessions from your house or apartment. This could be after a foreclosure, or after a default on your lease. Will a Bankruptcy filing stop an eviction? Often, yes it will, even if it is usually not a long term solution.
A Bankruptcy case, through the automatic stay, will stop an eviction (or a dispossessory case, as it is formally known in Georgia and other states) not because it is an attempt to collect a debt but because it is an attempt to exercise control over your property (or the “property of the estate” of someone in Bankruptcy). Removing your furniture, clothing, and other other household goods from the home is obviously attempting to “control” that personal property and the filing of a Bankruptcy case will prohibit a landlord or property owner from taking that action. If a dispossessory action is pending in state court, the filing of a Bankruptcy case will “stay” (or pause) the case just like any other lawsuit against you.
However, there is a very important exception to this rule. If the landlord or property owner has already obtained a writ of possession, meaning they have already been to court and obtained an order to remove you from the property, the Bankruptcy “automatic stay” does not apply. It is too late to stop the eviction.
One other important note. A Bankruptcy case to stop an eviction is almost always a very short term stop-gap measure. If you are leasing a home or apartment, Bankruptcy is not a way to force a landlord to provide long term housing for free. However, the landlord might take the opportunity to consider whether you can start paying current rent and maybe pay past-due rent over time in a Chapter 13 Plan, at least through the end of your current lease term. If you are at the end of the lease, have no lease, or are still in your house after a foreclosure, and the landlord or property owner does not want you to remain in the property, realistically you are going to need to find a new home within two to three months unless you can reach an agreement to stay longer. Again, a Bankruptcy Judge is not likely to require a property owner to provide free housing to someone no matter how sympathetic the circumstances.
Finally, an actual eviction like the one in the picture above is an absolutely horrible event. All of us have seen this, probably several times. If you have wondered why all the stuff is on the street it is because that is what the law requires, at least in Georgia and many states. Here is the very short version of how it works in Georgia. After the Writ of Possession is signed by the Judge, it goes to the county Sheriff or Marshal’s office to enforce. When they get to it in their stack, which might be in a few days after the court hearing, or in 2-3 weeks (you will not know), an officer will show up with no advance notice and knock on the door. He or she will tell you why they are there, present you with the court order, and ask you to leave the property. You will have no choice. The officer will not accept any excuses, pleas for more time, offers of rent money, or anything else. They are there to enforce a court order and have no authority to change that. If the officer cannot politely persuade you to leave, as a last resort they will call for backup and physically remove you from the property. At that point, a couple men (or more) hired by the landlord will come in and literally remove everything from the property and move it to the sidewalk or by the street, and then change the locks and secure the property. The officer (or officers) will be standing by during this process to make sure no one interferes with the process or causes trouble. If the residents have quickly arranged for their own truck, they can of course take their property as long as they are not interfering or causing trouble. Otherwise, it will be their responsibility to protect their property on the street until they can arrange to get it later. Obviously, if it is left on the street for long anything of value will quickly disappear. Again, this is a horrible and sad process when a family’s home and personal possessions is literally put on the street. Like a foreclosure, there are almost always many, many warnings over several months or weeks, so if you can avoid this please try to do so!
Scott Riddle is a Bankruptcy and Foreclosure lawyer in Atlanta, Georgia. The best way to contact us is by phone at 404-815-0164. You can also email firstname.lastname@example.org, or contact us through the contact page.
Photo Credit: ibm4381 via Flickr and Zillow.com