Bankruptcy Stops Eviction Orders From Being Granted

Bankruptcy is a very powerful legal process.  It can stop almost any act to collect a debt, including evictions.  But only if the bankruptcy is filed before the MN Housing Court issues a writ of execution.  After a writ of recovery is issued, then the bankruptcy is less powerful.  Let’s take a minute to learn when a writ of recovery will be issued for someone who has stopped paying rent.

How doe the eviction process work in Minnesota Housing Court?

Here is a chronological series of how someone gets to eviction in MN Housing court.

1. Tenant stops paying rent or does something else forbidden by the lease.
2. If the rent is late, then the landlord can demand that the tenant pay the late rent within 30 days of sending a letter to the tenant.
   • If the tenant pays the rent current, then nothing more happens.
3. If the tenant doesn’t pay the rent current by the end of those 30 days, then the landlord may FILE a complaint with the housing court where the rental property is located.
   • The complaint is a legal document which says how the tenant hasn’t held up their end of the deal in the lease agreement.  It will say how much rent is unpaid or if the tenant is breaking the lease in some other way.  Examples of other breaches of a lease are criminal activity or refusing to leave after the end of the lease.
4. The court issues a summons.  The summons tells the tenants about their rights to fight the eviction.
   • The landlord must serve the summons and the complaint on the tenant within 7 days of when the summons was issued.
   • Serve means hand paper copies of the complaint and the summons to the tenant.  If the tenant can’t be found, then the process server can serve someone of suitable age and discretion at the premises.
   • This article won’t discuss what counts as proper service.  The goal of service is to tell the tenant that they are being evicted and make sure the tenant knows how to respond.
5. There is an eviction hearing.  The timing of this hearing depends on when judges are available, and is usually at least 1 month after summons.
   • The hearing is in housing court with a referee.  The landlord must prove that the tenant hasn’t paid the rent, and the tenant can try to prove that they have paid the rent.
   • The referee encourages the landlord and tenant to make a deal where the tenant pays the back rent over time in a payment plan.
   • With a deal like this, the landlord can request an immediate writ of possession if the tenant misses any payments in the plan.
   • Right up to the minute of the hearing, a bankruptcy filing will stop the hearing from happening.
     • But don’t wait until 5 minutes before the bankruptcy to call a lawyer.  Filing bankruptcy isn’t just typing your name in to a website.  There are steps and timing to it.  Usually we ask for at least a few days to get everything right.
6. The housing referee issues a writ of recovery.
   • This will happen if the tenant doesn’t come to the hearing or if the landlord and tenant can’t agree on a payment plan.
   • The local sheriff then serves the writ of recovery on the tenant and the tenant has 24 hours to leave.
     • The 24 hours can be increased to 7 days if the tenant shows the housing referee that leaving in only 24 hours would impose a substantial hardship.
   • If the tenant doesn’t leave, then the landlord tells the sheriff and the sheriff arranges a time to supervise the forceful removal of the tenant and their personal effects.

What Does Bankruptcy Do Again?

Remember, filing bankruptcy means that no one can use the court system to collect debts, and must cancel or delay any hearings.  So if the bankruptcy is filed before the eviction hearing, then the hearing never happens.  What about the rent that keeps accruing and the back rent?  What happens to these when someone files bankruptcy?  More on that later in the next section.

If the bankruptcy is filed after the writ for recovery is issued, then there are fewer options.  If filed after the writ, then it only stops things IF the tenant deposits all of the rent that’s coming due within the next 30 days in the future, AND give some proof that you have the money to pay the back rent.  In practice this isn’t useful because anyone who had the money to pay the rent would have done so before it got this far.

I Filed Bankruptcy Before The Writ.  What Happens In The Long Run?

Chapter 7 discharges all debts that have come into existence before the filing date and also allows you to terminate any existing contracts that you don’t want anymore.  Thus you can terminate the lease (your lawyer will do this for you) and won’t owe anything.  BUT, you also don’t have a lease to live there any more so you will have to move out before long.  In chapter 7 you get 3 months of bankruptcy protection.  I recommend that you move or sign a new lease in that time.  You can also sign a new lease with the landlord.  Sometimes the landlord will be willing to keep you and agree that the back rent is simply gone.  If you haven’t moved out or made a deal with the landlord at the end of the 3 months, then they will start the eviction process again.  The landlord can also ask the bankruptcy court to shorten those 3 months by filing something called a “motion for relief from the automatic stay.”

In chapter 13 you have another option in addition to moving out without owing anything.  In chapter 13 you can pay all of the back rent over time as one of the creditors that gets paid from your monthly chapter 13 payment plan.  This is a good option if you were behind on the rent from a temporary job loss or family emergency and really want to stay.

Walker and Walker specializes in filing bankruptcy for only the court’s filing fee up front, so why not call us and see if we can get you some more time to get back on your feet by filing bankruptcy!  We offer free consultations by phone or in person at (612) 824-4357 or book online at www.calendly.com/wwattorneys