Can Bankruptcy Stop a Writ of Possession?

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If a law enforcement officer presents you with a writ of possession, it means that your landlord has won the right to remove you from his property. However, if your landlord is just about to begin the eviction process, or if the suit has been filed but the writ of possession hasn't been served on you yet, filing for bankruptcy can delay or stop eviction. Whether or not bankruptcy will stop a writ of possession depends largely on where your landlord is in the eviction process when you file for bankruptcy.

Eviction Proceedings

Your landlord can evict you for a variety of reasons, including failing to pay your rent, violating the terms of your lease or remaining on the property after the expiration of your lease. Eviction is typically a matter of state law. A landlord can not evict you for any reason not supported by state law, and he must go to a state court to evict you.

Once the landlord starts eviction proceedings, what happens next will depend upon the laws of your state. In many states, the end result the landlord seeks is an eviction and a writ of possession.

Writ of Possession

When the court grants the landlord an eviction judgment, it also gives her a writ of possession. This writ informs you, the tenant, that a law enforcement official, typically a sheriff, will remove you from the property if you are not gone by a certain date. You then have a certain amount of time to leave the property before he returns to remove you.

The writ of possession officially divests you of any interest in the property. Once the writ is served, you no longer have the right to stay.

Read More: What Does Writ of Possession Mean?

Bankruptcy and Eviction

Bankruptcy generally stays all debt collection and acts to enforce debts, including eviction. However, if you were already served a writ of possession, filing a bankruptcy petition will not help you keep your place in many jurisdictions; the writ of possession means that your legal right to stay there is gone, and if you file bankruptcy after that point, it won't stop the sheriff from removing you.

However, if the writ of possession has not yet been served, you can stop your landlord from evicting you by filing a bankruptcy case. Like all creditors, your landlord will be stayed from all collection actions, including eviction, upon the filing of the petition, at least temporarily.

Automatic Stay and a Landlord's Rights

The automatic stay gives you breathing room from your debts after you file a bankruptcy case, and it is one of the main reasons people file bankruptcy.

If your landlord sues you for back rent, tries to evict you or tries to take possession of the property while the stay is in effect, he is in violation of the stay and could incur penalties, including paying your legal fees as well as punitive damages. However, you are still responsible for paying your rent if you want to stay on the property. If you are unwilling or unable to pay your ongoing rent and have no means to catch up on your back rent, your landlord has the right to ask the bankruptcy court to lift the stay to permit the eviction.

References

About the Author

Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.

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