HOA v. Bankrupt Homeowner
Posted: Tue Apr 24, 2012 9:46 am
No. It has to be more than merely vacating the property. The HOA must receive notice that the owner is surrendering "all beneficial interest" and does not continue to have the right to return. For example, in the Cerro de Alcala case, the homeowner vacated the property, but the court said he could have returned at any time, or rented it out, so he still continued to enjoy some of the benefits. In my clients case, the coordinated with the bank, left the keys and garage door opener on the kitchen counter, and never returned. Additionally, the HOA had notice through the Statement of Intention and the granting of the relief from stay motion. The HOA monitored the case for discharge and then the transfer of title before suing my clients. During this monitoring period, the HOA did not send any statements or required disclosures - so there was additional evidence the HOA knew they had surrendered the property to the bank.
One problem, from a bankruptcy viewpoint, is that the HOA is prorating the dues for the month of filing. I argued that since the entire month's assessment arose prepetition, that the filing month was discharged in the bankruptcy and that attempting to collect this month was in violation of the discharge injunction. I think I was right, but the state court prorate the month anyhow.
Link Schrader, Attorney
Law Office of Link W. Schrader
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