回复：The tenant filled Chapter 13 Bankruptcy, what will be next?

在討論這個問題之您應該仔細讀一下下面有關chapter 13 Bankruptcy的說明,
http://www.uscourts.gov/bankruptcycourts/bankruptcybasics/chapter13.html


定義: Order for Relief
The actual court order determining that a debtor is subject to the control of the bankruptcy court

(所以一旦order for relief 成立,您不再與您的房客打交道,而是直接與破產法庭的債務監察人打交道)
(比較詳細的說明如下)
An order for relief is the event that marks the beginning of a bankruptcy proceeding, the date of which affects other matters, such as what claims are administered in the proceeding. In a voluntary case, the filing of the petition constitutes an order for relief. BRA s301. In an involuntary case, if the petition is not timely controverted, the court must enter an order for relief; otherwise, the court may enter an order for relief only on specified grounds. BRA s303.

對於您權益的影響請您參考這個文章,
http://www.foley.com/publications/pub_detail.aspx?pubid=4208
基本上您的房客受到破產法的保護,如果他能夠付出全部或是一定比例的房租,她就可以繼續住在這個房子中直到合約期滿,而在這期間您是與她的法院指定的破產執行監察人(一般是法院的書記員)直接打交道,
相關法律條文
Sec. 1301. Stay of action against codebtor

-STATUTE-
(a) Except as provided in subsections (b) and (c) of this
section, after the order for relief under this chapter, a creditor
may not act, or commence or continue any civil action, to collect
all or any part of a consumer debt of the debtor from any
individual that is liable on such debt with the debtor, or that
secured such debt, unless -
(1) such individual became liable on or secured such debt in
the ordinary course of such individual's business; or
(2) the case is closed, dismissed, or converted to a case under
chapter 7 or 11 of this title.

(b) A creditor may present a negotiable instrument, and may give
notice of dishonor of such an instrument.
(c) On request of a party in interest and after notice and a
hearing, the court shall grant relief from the stay provided by
subsection (a) of this section with respect to a creditor, to the
extent that -
(1) as between the debtor and the individual protected under
subsection (a) of this section, such individual received the
consideration for the claim held by such creditor;
(2) the plan filed by the debtor proposes not to pay such
claim; or
(3) such creditor's interest would be irreparably harmed by
continuation of such stay.

一個類似的form如下

您所在地區的破產法庭(UNITED STATES BANKRUPTCY COURT DISTRICT OF XXX) XXX 所出具的命令


http://www.n*****.uscourts.gov/forms2/data/ORDERS-EXTERNAL_Order_for_Relief.pdf


所以下面您需要如何做,
基本上A tenant who files a bankruptcy petition normally is entitled to an immediate automatic stay of a pending unlawful detainer action. If the landlord hasn't already filed the unlawful detainer action, the automatic stay prevents the landlord from taking steps such as serving a 3-day notice or filing the action
所以您需要在收到當地Bankruptcy法庭的
Order for Relief 之後向Bankruptcy法庭file 一個petition for permission to proceed with the unlawful detainer action (called "relief from the automatic stay)
在未來的30到120天之間如果破產法庭接受您的要求,您可以憑藉這個法院命令向當地housing court重新提出Unlawful Detainer Lawsuit


您所能提出要求法院容許您relief from the automatic stay的理由是基於11 U.S.C. 362 (d)的相關規定(詳細條文如下,您可以參考)
http://www.doney.net/bkcode/11usc0362.htm

然而如果法院認定您的房客有能力支付未來所需要負擔的房租,您就不能要求他遷出直到他(A)與您的合約期滿,或是(B)他無法準時將應該支付的償債金額交給法院指定的帳戶.


相關的11 U.S.C. 362 (d)的條文如下.
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay--

(1) for cause, including the lack of adequate protection of an interest in property of such party in interest;

(2) with respect to a stay of an act against property under subsection (a) of this section, if--

(A) the debtor does not have an equity in such property; and

(B) such property is not necessary to an effective reorganization;

(3) with respect to a stay of an act against single asset real estate under subsection (a), by a creditor whose claim is secured by an interest in such real estate, unless, not later than the date that is 90 days after the entry of the order for relief (or such later date as the court may determine for cause by order entered within that 90-day period) or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later--

(A) the debtor has filed a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time; or

(B) the debtor has commenced monthly payments that--

(i) may, in the debtor's sole discretion, notwithstanding section 363(c)(2), be made from rents or other income generated before, on, or after the date of the commencement of the case by or from the property to each creditor whose claim is secured by such real estate (other than a claim secured by a judgment lien or by an unmatured statutory lien); and

(ii) are in an amount equal to interest at the then applicable nondefault contract rate of interest on the value of the creditor's interest in the real estate; or

(4) with respect to a stay of an act against real property under subsection (a), by a creditor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scheme to delay, hinder, and defraud creditors that involved either--

(A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or

(B) multiple bankruptcy filings affecting such real property.

If recorded in compliance with applicable State laws governing notices of interests or liens in real property, an order entered under paragraph (4) shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of such order by the court, except that a debtor in a subsequent case under this title may move for relief from such order based upon changed circumstances or for good cause shown, after notice and a hearing. Any Federal, State, or local governmental unit that accepts notices of interests or liens in real property shall accept any certified copy of an order described in this subsection for indexing and recording.

最後如果您有興趣,這是2002年Ninth Circuit 有類似問題判決的一個討論,您或許可以參考一下
http://www.tylercooper.com/publications/Detail.aspx?ID=8c861e5b-e80e-4330-aa9a-1ebeb2dc9132

所有跟帖： 

• Thank you very much! -wxc1668- ♀ (86 bytes) () 05/20/2008 postreply 13:10:46