My guess is that HOA duesare consented to at the time of purchase and are
similar to property taxes and are firstposition (or second, if property taxes
are first), therefore 506 is not helpful and522 is not applicable.
Peter M. Lively, JD, MBA
The Personal Financial Law Center* Culver City & Costa Mesa * 800-307-DEBT
________________________________
To:
cdcbaa@yahoogroups.com
Sent: Fri, March 18, 2011 11:10:50 AM
Subject: RE: [cdcbaa] HOA Lien Avoidance
I agree with you and argued that the debt is just like any contractual
obligation and because it was unsecured, it is avoidable under 506(a).the Court in Foster determined that HOA dues (in Washington ) are a covenant
running with the land and thus not post-petition dues are not avoidable. Kaufman focuses on the covenant and did not agree that it was a contractualobligation but a covenant running with the land making pre-petition unavoidable.
on a property,
it must pay off the HOA because it can take title, this makes the HOA dues a
covenant. The position does have merit.
Stella Havkin
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] On Behalf Of Patrick
Green
Sent: Friday, March 18, 2011 11:00 AM
To:
cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] HOA Lien Avoidance
It is not clear to me why it matters if the dues are a covenant running with
land. A covenant creates an obligation just like a contract does.debt is from a covenant or from a contract, the issue is whether it is secured
and if so what methods are available to avoid the lien.
The HOA lien for dues is a statutory lien. Statutory liens can only be avoided
if they are enumerated in 545 of the Code. The applications are very limited
and are not helpful to the debtor and in any event, they can only be used in a
Ch7 by the trustee.
Using a LAM motion in a 13 should avoid the issue of the type of lien.questions are then: (1) is the lien wholly unsecured; and (2) can it be
cost-effectively avoided under 506(a).
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] On Behalf Of Stella
Havkin
Sent: Friday, March 18, 2011 9:22 AM
To:
cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] HOA Lien Avoidance
The HOA dues can be interpreted as a covenant running with the land. I just
filed a LAM motion in a chp 13 to strip a HOA lien related to pre-petition HOA
dues. Judge Kaufman ruled against me based on a new case of Foster v. Double R.
Ranch Assn 435 B.R. 650 (BAP 9th Cir.2010). In that Chp 13 case, the debtor
filed a 522f motion to strip all HOA post-petition dues. The BAP relied on
Washington law that interprets HOA dues as a covenant running with the land.
The case did not deal with pre-petition dues, however, Judge Kaufman decided
that the case can be used to interpret the HOA dues are a covenant running with
the land. This is because the CC&Rs refer to a California statute and refer to
the HOA dues as a covenant running with the land. We are trying to settle the
case. If not, we may appeal because the case does not deal with pre-petition
dues and is based on Washington law.
So to answer your question, I have avoided HOA dues in the past in both chp 7
and 13, but as judge Kaufman said to me, it is because no one opposed it.
Stella A. Havkin
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] On Behalf Of JMB2BLB
Sent: Thursday, March 17, 2011 6:26 PM
To:
cdcbaa@yahoogroups.com
Subject: [cdcbaa] HOA Lien Avoidance
I have a client that we filed a Ch7 petition for in Sept 2010. Among the
unsecured debts listed were pre-petition HOA fees and assessments. Unbeknownst
to either the debtor or myself, the HOA had secured a lien agsinst the debtor's
property (the property was listed and an exemption of almost $11,000 was used).
After the debtor was discharged, rather than let his real property go intoforeclosure, he elected to "short sell" it as the property value was below what
was originally estimated. The HOA made a demand for the full amount of their
lien to clear a title exception and refuse to take only the amount of their post
petition dues and assessments.
Question is, can I re-open and "avoid" the lien as the underlying debt wasdischarged? If so, can I adapt form 4003-2.1 (as it appears to be for "judgment
liens")? Anyone have experience with this type of situation?
Thanks in advance.
My guess is that HOA dues are consented to at the time of purchase and are similar to property taxes and are first position (or second, if property taxes are first), therefore 506 is not helpful and 522 is not applicable.
Peter M. Lively, JD, MBA
The Personal Financial Law Center * Culver City & Costa Mesa * 800-307-DEBT
From: Stella Havkin <
havkinlaw@earthlink.net>To:
cdcbaa@yahoogroups.comSent: Fri, March 18, 2011 11:10:50 AMSubject: RE: [cdcbaa] HOA Lien Avoidance
I agree with you and argued that the debt is just like any contractual obligation and because it was unsecured, it is avoidable under 506(a). However, the Court in Foster determined that HOA dues (in Washington ) are a covenant running with the land and thus not post-petition dues are not avoidable. Judge Kaufman focuses on the covenant and did not agree that it was a contractual obligation but a covenant running with the land making pre-petition unavoidable. Her opinion is that because when a mortgage company forecloses on a property, it must pay off the HOA because it can take title, this makes the HOA dues a covenant. The position does have merit.
Stella Havkin
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] On Behalf Of Patrick GreenSent: Friday, March 18, 2011 11:00 AMTo:
cdcbaa@yahoogroups.comSubject: RE: [cdcbaa] HOA Lien Avoidance
It is not clear to me why it matters if the dues are a covenant running with land. A covenant creates an obligation just like a contract does. Whether the debt is from a covenant or from a contract, the issue is whether it is secured and if so what methods are available to avoid the lien.
The HOA lien for dues is a statutory lien. Statutory liens can only be avoided if they are enumerated in 545 of the Code. The applications are very limited and are not helpful to the debtor and in any event, they can only be used in a Ch7 by the trustee.
Using a LAM motion in a 13 should avoid the issue of the type of lien. The questions are then: (1) is the lien wholly unsecured; and (2) can it be cost-effectively avoided under 506(a).
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] On Behalf Of Stella HavkinSent: Friday, March 18, 2011 9:22 AMTo:
cdcbaa@yahoogroups.comSubject: RE: [cdcbaa] HOA Lien Avoidance
The HOA dues can be interpreted as a covenant running with the land. I just filed a LAM motion in a chp 13 to strip a HOA lien related to pre-petition HOA dues. Judge Kaufman ruled against me based on a new case of Foster v. Double R. Ranch Assn 435 B.R. 650 (BAP 9th Cir.2010). In that Chp 13 case, the debtor filed a 522f motion to strip all HOA post-petition dues. The BAP relied on Washington law that interprets HOA dues as a covenant running with the land. The case did not deal with pre-petition dues, however, Judge Kaufman decided that the case can be used to interpret the HOA dues are a covenant running with the land. This is because the CC&Rs refer to a California statute and refer to the HOA dues as a covenant running with the land. We are trying to
settle the case. If not, we may appeal because the case does not deal with pre-petition dues and is based on Washington law.
So to answer your question, I have avoided HOA dues in the past in both chp 7 and 13, but as judge Kaufman said to me, it is because no one opposed it.
Stella A. Havkin
From:
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] On Behalf Of JMB2BLBSent: Thursday, March 17, 2011 6:26 PMTo:
cdcbaa@yahoogroups.comSubject: [cdcbaa] HOA Lien Avoidance
I have a client that we filed a Ch7 petition for in Sept 2010. Among the unsecured debts listed were pre-petition HOA fees and assessments. Unbeknownst to either the debtor or myself, the HOA had secured a lien agsinst the debtor's property (the property was listed and an exemption of almost $11,000 was used). After the debtor was discharged, rather than let his real property go into foreclosure, he elected to "short sell" it as the property value was below what was originally estimated. The HOA made a demand for the full amount of their lien to clear a title exception and refuse to take only the amount of their post petition dues and assessments.Question is, can I re-open and "avoid" the lien as the underlying debt was discharged? If so, can I adapt form 4003-2.1 (as it appears to be for "judgment liens")? Anyone have experience with this type of situation?Thanks in a
The post was migrated from Yahoo.
.jpg)
), and therefore pre-petition dues can be