Pre-Petition HOA Fees - Dischargeable?
Posted: Fri Nov 24, 2017 11:59 am
Nick,
I've had to limit my practice to simpler cases - no more Chapter 11 cases
for the time being. I speak with clients a lot on the phone and via
email. I haven't done any advertising in SoCal and all my new clients have
come through word of mouth. I came back to Kansas because my sister was in
the last year of her life and my mother's health was not great. I've been
particularly grateful for the connections I've maintained through CDCBAA.
As this post is to the listserv, I won't say more, but I'd welcome any
private messages regarding a long-distance practice, etc.
Kindest Regards,
Link Schrader
On Fri, Nov 24, 2017 at 12:24 PM, 'Nicholas Gebelt' ngebelt@gebeltlaw.com
[cdcbaa] wrote:
>
>
> Dear Link,
>
>
>
> Were all in learning mode. Thats one of the great benefits of this
> Listserve. I get to learn new things all of the time. (Thank you Dennis,
> and everyone else who participated in the starting the Listserve.)
>
>
>
> By the way, if youre based in Kansas City, do you do all of your client
> interaction via Skype and email? And how do you make appearances in the
> courts in Southern California? Some judges dont cotton to telephonic
> appearances.
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of
> Legal Specialization
>
>
>
> [image: Description: Description: Description:
> cid:image003.jpg@01CC076B.B14D73C0]
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
>
> Whittier, CA 90604
>
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@goodbye2debt.com
>
> Web: www.goodbye2debt.com
>
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
>
>
> *Important notice required by 11 U.S.C. 528:* We are a debt relief
> agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>
>
>
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> immediately at 562.777.9159 or e-mail
> info@gebeltlaw.com and destroy the original message and all copies.
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>
> *Representation Note*: If you have not signed a contract of
> representation, the Law Offices of Nicholas Gebelt do not represent you,
> and this email does not contain any legal advice for you.
>
>
>
> *Privacy Warning: *The use of e-mail involves risk that the message may
> be intercepted by third parties (such as the government). Contacting me by
> email is your acknowledgment that you waive the risk of emails sent to me,
> and that you waive the risk of emails sent from me to you. Further,
> accessing websites carries the risk of detection of your access not only in
> real time, but also by discovery. If you have ANYTHING that is sensitive
> to convey to me, it should be given in a face-to-face meeting.
>
>
>
> *IRS Circular 230 Disclosure: *In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended to be used, and cannot be used, for the purpose of (i) avoiding
> penalties under the Internal Revenue code, or (ii) promoting, marketing, or
> recommending to another party any transaction or matter addressed herein.
>
>
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Friday, November 24, 2017 8:58 AM
>
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Pre-Petition HOA Fees - Dischargeable?
>
>
>
>
>
> Nick,
>
>
>
> I believe you are correct and I am wrong. I focused on the idea of a
> nonconsensual lien as being equal to a judgment lien, which, as you point
> out, is not always the case.
>
>
>
> I have stripped off HOA liens in Ch 13 and avoided personal liability for
> an HOA statutory lien in California state court, but not in a Ch 7 case. I
> do believe a Ch 7 debtor's personal liability for HOA assessments arising
> before the order for relief is extinguished by 523(a)16, and personal
> liability for post-petition HOA assessments might be terminated after such
> time as the homeowners had left the unit and surrendered all beneficial
> interest, Cal. Civil Code Section 1466. In a state court trial brief I
> analyzed several cases discussing 1466 and I'd be happy to share that brief
> with anyone who wants it. I won the case, but there were decisions on both
> sides.
>
>
>
> Thank you,
>
>
>
> Link
>
>
>
> On Sat, Nov 18, 2017 at 9:01 PM, 'Nicholas Gebelt' ngebelt@gebeltlaw.com
> [cdcbaa] wrote:
>
>
>
> Dear Link,
>
>
>
> There are two statutes under which homeowners associations have commonly
> filed liens against their members homes for unpaid dues: Cal. Civ. Code
> 1367 and Cal. Civ. Code 1367.1. Those liens filed pursuant to > valid only if they were recorded on or after January 1, 1986 and prior to
> January 1, 2003. (Cal. Civ. Code 1367(g).) Those filed pursuant to
> 1367.1 are valid only if they were recorded on or after January 1, 2003.
> (Cal. Civ. Code 1367.1(m).)
>
>
>
> My point? Unless the lien is a judgment lien occasionally HOAs record
> judgment liens an HOA lien is a statutory lien. Therefore, while the
> statutory lien is nonconsensual, it cannot be avoided using 522(f)
> because, in the case of real property, that subsection applies only to
> judgment liens. Section 545 coupled with 522(h) provides a vehicle for
> avoiding certain statutory liens. However, the scope of 545 is quite
> limited, and would rarely, if ever, apply to an HOA statutory lien.
>
>
>
> Under the right circumstance *i.e.*, the HOA lien is wholly unsecured
> a debtor can strip an HOA statutory lien in a Chapter 13 case using > 506(d) per *Zimmer v. PSB Lending Corp.*, 313 F.3d 1220, 27 (9th Cir.
> 2002) (In order to give effect to the definitions of secured and unsecured
> claims under 506(a), we must conclude that the rights of a creditor
> holding only an unsecured claim may be modified under 1322(b)(2).> similar reasoning holds, *mutatis mutandis *(*viz*., 1123(b)(5) in lieu
> of 1322(b)(2)), in Chapter 11. However, such relief is unavailable in
> Chapter 7 per *Bank of America, N.A. v. Caulkett*, 135 S. Ct. 1995, 2001
> (2015) (The reasoning of *Dewsnup* dictates that a debtor in a Chapter 7
> bankruptcy proceeding may not void a junior mortgage lien under 506(d)
> when the debt owed on a senior mortgage lien exceeds the current value of
> the collateral.).
>
>
>
> In sum, I dont see how you can avoid an HOA statutory lien in a Chapter
> 7. Do you have any authority that permits the avoiding of an HOA statutory
> lien in a Chapter 7?
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> *Nicholas Gebelt*
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of
> Legal Specialization
>
>
>
> [image: Description: Description: Description:
> cid:image003.jpg@01CC076B.B14D73C0]
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
>
> Whittier, CA 90604
>
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@goodbye2debt.com
>
> Web: www.goodbye2debt.com
>
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
>
>
> *Important notice required by 11 U.S.C. 528:* We are a debt relief
> agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>
>
>
> *Confidentiality Note*: This e-mail is intended only for the person or
> entity to which it is addressed and may contain information that is
> privileged, confidential, or otherwise protected from disclosure.
> Dissemination, distribution, or copying of this e-mail or the information
> herein by anyone other than the intended recipient, or an employee or agent
> responsible for delivering the message to the intended recipient, is
> prohibited. If you have received this e-mail in error, please notify us
> immediately at 562.777.9159 or e-mail
> info@gebeltlaw.com and destroy the original message and all copies.
>
>
>
> *Representation Note*: If you have not signed a contract of
> representation, the Law Offices of Nicholas Gebelt do not represent you,
> and this email does not contain any legal advice for you.
>
>
>
> *Privacy Warning: *The use of e-mail involves risk that the message may
> be intercepted by third parties (such as the government). Contacting me by
> email is your acknowledgment that you waive the risk of emails sent to me,
> and that you waive the risk of emails sent from me to you. Further,
> accessing websites carries the risk of detection of your access not only in
> real time, but also by discovery. If you have ANYTHING that is sensitive
> to convey to me, it should be given in a face-to-face meeting.
>
>
>
> *IRS Circular 230 Disclosure: *In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended to be used, and cannot be used, for the purpose of (i) avoiding
> penalties under the Internal Revenue code, or (ii) promoting, marketing, or
> recommending to another party any transaction or matter addressed herein.
>
>
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Saturday, November 18, 2017 1:31 PM
>
>
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Pre-Petition HOA Fees - Dischargeable?
>
>
>
>
>
> Yes, but the lien would be secured by the real property, and not a
> personal liability. Non-consensual liens can be avoided in chapter 7 cases.
>
>
>
> On Sat, Nov 18, 2017 at 2:33 PM, GMAIL Webblaw@Gmail.com [cdcbaa] cdcbaa@yahoogroups.com> wrote:
>
>
>
> True, but smart HOAs record liens.
>
>
>
>
>
> Larry Webb
>
> [image: cid:image001.jpg@01D0F15C.EFF4AFA0]
>
> California Board of Legal Specialization
>
> Certified Specialist in Bankruptcy Law
>
> Map Location
>
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