What to Do if You Are Facing an Eviction or

What to Do if You Are Facing an Eviction or Unlawful Detainer Action

The Steve Westerfield Law Office in Hot Springs, AR has helped hundreds of clients file bankruptcy and get out of debt. With 32 years of experience in legal practice as a sole practitioner, Steve Westerfield knows what to do if you are facing an eviction due to mounting debt. Here, he discusses whether bankruptcy will stop an eviction or unlawful detainer action, and the steps needed to take in order to postpone one.

In my experience, bankruptcy will postpone an eviction or unlawful detainer action provided that an Order of Possession has not yet been entered. In a case of home foreclosure, a Chapter 13 bankruptcy will prevent the foreclosure and give the debtor an opportunity to eventually get current on his mortgage obligation.


When it comes to an unlawful detainer action, it is where a property owner seeks to remove an occupant from property which the occupant does not own or to which the occupant does not have lease or other contract rights. Bankruptcy will not be a long-term help in those situations. It can postpone the necessity to surrender or move out of a property. However, if you are not entitled to possession of that property, then you ultimately will have to give up that property. In other words, if you are renting or leasing property, you will not be greatly helped by a bankruptcy.

Set Up a Plan If you are facing a foreclosure, then a Chapter 13 bankruptcy will stop all foreclosure proceedings and set up a plan whereby mortgage payments and payment arrearages can be paid to the Bankruptcy Trustee for eventual distribution to the mortgage holder. A Chapter 13 plan will last a minimum of three years and cannot last more than five years. A Chapter 13 plan of payment, which is intended to cure a mortgage arrearage, will require a monthly payment to the trustee in an amount sufficient to cover the following expenses:

1. The amount of the regular monthly home mortgage payment. 2. The amount of mortgage arrearages spread out over the term of the plan (anywhere from 36 to 60 months). 3. A small Trustee's fee (approximately 7% of the amount of each monthly payment). 4. Legal expenses which will amount to approximately $50 per month, depending on the amount of the initial retainer which has been paid to the filing party's attorney.

In addition, a Chapter 13 bankruptcy will prevent the repossession of an automobile or other items of personal property such as a boat, furniture, or business equipment and machinery. In order to permanently prevent the repossession and allow the property owner an opportunity to pay for his vehicle or other property, the Chapter 13 plan must provide for payments to the bankruptcy Trustee in an amount sufficient to pay the entire amount of debt secured by personal property.

Payments to the Chapter 13 trustee are made pursuant to a bankruptcy plan, which can last from no less than 36 months to no more than 60 months. Debts secured by personal property are treated differently than debts secured by real property. As long as the property owner has owned the automobile or other item of personal property for 30 months or more, the court will only require that the property owner pay, over the course of the plan, an amount equal to the value of the property.

Take an Example To explain it clearly, let's consider a hypothetical circumstance in which an individual owns a motor vehicle that has a value of $10,000, but which is subject to a debt of $20,000. In that situation, as long as the individual has owned the car for 30 months or more, the owner of the vehicle will only be required to pay to the Trustee, for the benefit of the lien holder, an amount sufficient to pay the lien holder $10,000, together with reasonable interest, over the course of 36 to 60 months. In this example, the remaining balance of the debt - $10,000 - would be considered unsecured and would be discharged once the bankruptcy plan was completed.

A Chapter 13 plan which seeks to avoid a foreclosure will almost always result in the property owner having to pay a larger monthly payment over the course of the bankruptcy plan in order to keep the real estate. However, a Chapter 13 plan which deals with a motor vehicle or other personal property may result in a reduced vehicle payment or equipment payment in circumstances where the value of the property which the property owner wishes to retain is substantially less than the actual amount of debt owed to the lien holder.

An experienced bankruptcy lawyer can help you decide how to proceed if you are facing an eviction or foreclosure, and can also help you keep your car or home, if possible. For clients in Hot Springs, AR, I recommend calling the Steve Westerfield Law Office for help.

This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.

Steve Westerfield is a writer for somekeyword, a business directory and online advertising company. Find asomekeyword or more somekeyword articles at Yodle Consumer Guide.