My tenant in Phoenix, AZ filed for a Ch 13 bankruptcy in California (Sherman oaks) a day before (Dec 4) the eviction hearing (Dec 5) . The judgement and possession was not awarded due to the bankruptcy filing. Tenant owes the rent and other arrears from November and also Dec rent will be due on Dec 11.
You wont be able to collect rent or any other fees, but the tenant does not have an automatic stay as they do not own the property. You should not be barred from evicting this tenant at all.
at the outset, you should contact an attorney, who will probably give you a free consultation, and would probably be more than happy to elucidate the procedures and rules for filing a relief from stay action in the Central District. THEN, you should determine if you want to go it alone.
Having said that, your tenant has a set time frame in which he/she must propose to the court his/her "chapter 13 plan." You are required to get notice of that plan, and the scheduled 341 meeting. In that plan, you will be able to see if the debtor is intending on paying you, moving forward, or if he intends to abandon the property. You might also be able to see what he intends on doing based on how you're listed in his Schedule F and G.
If you don't have access to those papers, above, then you'll want to contact an attorney to look them up for you. Again, consult. Generally free. Though you might want to plan on taking 50 bucks with you.
I certainly respect your Do-It-Yourself spirit, but there is no way that it is a good idea to handle this type of motion without an attorney. Some debtor's are able to get through a 341 hearing with a simple bankruptcy without the benefit of counsel, but on a motion for relief for rental property you need a local bankruptcy lawyer. I strongly recommend that you hire an experienced local attorney before filing a motion for relief.
You need to employ local counsel to file a motion for relief from the automatic stay. Mr. Berkus and Mr. Caldwell and the other attorneys are absolutely right that you should not make this a DIY project. Federal bankruptcy judges are not very user friendly, and they have little patience with pro se parties that file and litigate motions in their court. If you want to give yourself an opportunity to have a speedy and favorable outcome, go seek the assistance of an experienced bankruptcy attorney for your motion.
Seeing that your tenant resides in Arizona and probably filed his/her bankruptcy there, you will need to file a motion for relief from stay in Arizona. Different courts and different judges have different views and interpretations of the law, so you should hire an attorney familiar with the district and judges the motion needs to be filed in. Additionally, a chapter 13 bankruptcy may include a few more wrinkles to the analysis, since the debtor may have filed a reorganizational plan to deal with the arrearages in rent you speak of.
A motion for relief from stay to proceed with an unlawful detainer proceeding is not the most complex matter for a skilled attorney to handle at a reasonable fee. Thus, you should at minimum contact and consult an Arizona bankruptcy attorney before making this a do-it-yourself project and prolonging the eviction process by not getting it right the first time.
You will need an attorney to assist you if you wish to be successful. On the other hand, if you are well versed in the Federal Rules of Bankruptcy Procedure as well as the Local Rules of Procedure with your court system, as well as all the required forms, then you may be successful. You will have to weigh the cost/benefit of doing this yourself.
I know you want to file the motion yourself, but people in hell want ice water too. This is not a DIY project. Find/hire/consult with a lawyer ASAP. Click the Avvo tab "Find a Lawyer". Many will give a free consultation, assess the merits of the case, and give you a cost estimate. It is money well spent.
Realistically, a motion to lift the bankruptcy stay will require an attorney. There are many rules to comply with and you could easily end up starting over if you don't know what you're doing. With an eviction, time is money. My advice is hire a lawyer.
As is frequently the case, I agree with Mr. Berkus. Bankruptcy practice is not for the inexperienced. Also, assuming the debtor provided for payment (or same percentage payment to her other unsecured creditors) in the ch13 plan, you cannot base a motion for relief from stay on the rent owed to you prior to the filing of her bankruptcy, but only on the rent due after the filing. It would be different if you had gotten the judgment prior to the filing of her case, but you did not. See a local bankruptcy attorney or take the sizable risk of screwing something up.
Unfortunately, the only good advice in your situation is to get an attorney. You don't know even know if you are entitled to a motion for relief from stay. Just because you want it lifted, doesn't mean it will be. What does the debtor's chapter 13 plan say about the lease? Is she proposing to cure the arrears and stay in the property? Did the debtor file a statement of intent? Is the debtor represented by an attorney?
That is about all that can be said on this forum about your situation.
As to a motion, at its care, a motion is simply a request for the court to do something (enter and order). In short, a motion has 3 parts.
Part 1. A statement of what you want the court to do. The relief you are seeking.
Part 2. A statement of the law (statute, case law, etc) that says you entitled to the relief you seek if certain conditions are met.
Part 3. A statement of the facts that trigger the law(s) you have cited such that you are entitled to relief.