Can Bankruptcy Stop a Writ of Possession?
The court issues a writ of possession in the last step of an eviction case. The writ permits a law enforcement officer to enter the home of the evicted tenant to remove the tenant from the house. The tenant needs to file bankruptcy before a certain point in the eviction process to stop the writ of possession from being issued. If the tenant fails to file the bankruptcy before the court rules in favor of the landlord, the tenant cannot stop the writ of possession with a bankruptcy filing.
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Bankruptcy Protection
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Bankruptcy protection, also known as an automatic stay, halts debt collection by your creditors. Even if you are not including the back rental payment in your bankruptcy process, the landlord cannot pursue any type of collection activities if he has not yet received a court judgment against you. The eviction lawsuit hearing would be considered a collection attempt on the part of the landlord. If you file bankruptcy before the eviction judgment and writ of possession are issued, the eviction process is stopped entirely.
Eviction Process
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The landlord formally starts the eviction process by terminating any contact that he has in place with you. This termination stipulates the reason for the notice, the amount of time required before you must leave the property and any resolution methods available. Each state has its own laws and regulations governing eviction, so you may have as little as three days or as much as several months before the eviction proceeds.
If you aren't out by the date on the notice, the landlord files the eviction with a local court. You'll receive notice about the hearing schedule and when you need to go to court. You need to file bankruptcy before the court issues the eviction order. This is the only way you can use a bankruptcy filing to stop a writ of possession forcing you to leave the home. If you time the bankruptcy after the judgment, the eviction case falls outside of the automatic stay.
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Writ of Possession
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A landlord obtains a writ of possession through the court after the eviction judgment is entered. The landlord cannot receive this writ before the judgment. He also has to wait until the court-ordered move-out period ends. Once the writ is executed, you'll receive a notice from a constable or sheriff letting you know that you will be forcibly evicted from the property once the notice ends. You may get one day, several days or weeks depending on the schedule.
Considerations
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The landlord does not have to wait until the bankruptcy case concludes to start the eviction process over again. The landlord has the option of sending in a petition to the bankruptcy court to lift the automatic stay against collection. He may wait to see if you keep current on your subsequent rental obligations. If you miss a rent payment after filing bankruptcy, the rental payment is considered a post-bankruptcy debt. This debt is not covered by the automatic stay.
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