X-eGroups-Edited-By: easky1
charsetndows-1252
We've done it several times (under LAM) and never had a problem. In two occasions (Ahart in SF and Smith in SA) the motions were opposed (HOA citing Foster). We won on both occasions with court finding Foster has nothing to do with this issue.
Here's the Santa Ana ruling:
The Association offers no legal authority supporting its position that an HOA lien should be treated any differently from other liens for purposes of Sec. 506.
The court finds the BAP's decision in Foster unavailaing as 1) it is interpreting Washington state law and 2) it concerns the applicability of the discharge provisions of 1328(a) to postpetition dues/assessments,
Importantly, California law does not treat HOA liens as "superliens." See, e.g.,Thaler v. Household Finance Corporation, 80 Cal.App.4th 1093, 1103 (2000) (rejecting the HOA's argument that a second trust deed recorded prior to recordation of its assessment subordinate, the Court referenced the following quote from Starr & Miller: "The burden on the . . . association is no different from the burden imposed on any creditor. Every creditor suffers the risk that a debtor may defeat collection of the obligation by over-encumbering his asset."); Diamond Heights Village Ass'n, Inc. v. Financial Freedom Senior Funding Corp.
196 Cal.App.4th 290, 303 ( The debt is only a personal obligation of the owner, however, until the community association records a notice of delinquent assessment against the owner's interest in the development. Recording this notice creates a lien and gives the association a security interest in the lot or unit against which the assessment was imposed. (Sproul & Rosenberry, Advising Cal. Common Interest Communities
(Cont.Ed.Bar 2003) 5.36, p. 328 [hereafter, Common Interest Communities]; see Civ.Code, 1367, subd. (d).) The lien dates from the time the lien is **681 properly recorded. ( Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 11001102, 95 Cal.Rptr.2d 779.) California follows the first in time, first in right system of lien priorities. Condominium assessment liens follow this same system."); andMountain Home Properties v. Pine Mountain Lake Assn. (1982) 135 Cal.App.3d 959, 968("covenants running with the land, including those contained in CC & R's, are to be strictly construed].)
The Association's lien securing the prepetition obligations is completely underwater and, therefore, may be stripped.
Ramiro Flores Munoz
________________________________
415 W. Foothill Boulevard, Suite 202
Claremont, CA 91711
t. 909.908.6251
f. 888.674.9293
>>
>
charsetndows-1252
We've done it several times (under LAM) and never had a problem. In two occasions (Ahart in SF and Smith in SA) the motions were opposed (HOA citing Foster). We won on both occasions with court finding Foster has nothing to do with this issue. Here's the Santa Ana ruling:
The Association offers no legal authority supporting its position that an HOA lien should
be treated any differently from other liens for purposes of Sec. 506.
The court finds the BAP's decision in Foster unavailaing as 1) it is interpreting
Washington state law and 2) it concerns the applicability of the discharge provisions of
1328(a) to postpetition dues/assessments,
Importantly, California law does not treat HOA liens as "superliens." See, e.g.,Thaler v.
Household Finance Corporation, 80 Cal.App.4th 1093, 1103 (2000) (rejecting the HOA's
argument that a second trust deed recorded prior to recordation of its assessment
subordinate, the Court referenced the following quote from Starr & Miller: "The burden on
the . . . association is no different from the burden imposed on any creditor. Every
creditor suffers the risk that a debtor may defeat collection of the obligation by
over-encumbering his asset."); Diamond Heights Village Ass'n, Inc. v. Financial Freedom
Senior Funding Corp.
196 Cal.App.4th 290, 303 ( The debt is only a personal obligation of the owner,
however, until the community association records a notice of delinquent assessment
against the owner's interest in the development. Recording this notice creates a lien and
gives the association a security interest in the lot or unit against which the assessment
was imposed. (Sproul & Rosenberry, Advising Cal. Common Interest Communities
(Cont.Ed.Bar 2003) 5.36, p. 328 [hereafter, Common Interest Communities]; see
Civ.Code, 1367, subd. (d).) The lien dates from the time the lien is **681 properly
recorded. ( Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 11001102,
95 Cal.Rptr.2d 779.) California follows the first in time, first in right system of lien
priorities. Condominium assessment liens follow this same system."); andMountain
Home Properties v. Pine Mountain Lake Assn. (1982) 135 Cal.App.3d 959,
968("covenants running with the land, including those contained in CC & R's, are to be
strictly construed].)
The Association's lien securing the prepetition obligations is completely underwater and,
therefore, may be stripped.
Ramiro Flores Munoz________________________________415 W. Foothill Boulevard, Suite 202Claremont, CA 91711t. 909.908.6251f. 888.674.9293_________________________________This email may contain information that is confidential or privileged. If you are not the intended recipient, do not read, copy or distribute the email or any attachments. Instead, please notify the sender and delete the email and any attachments. Thank you. On Jul 30, 2012, at 11:39 AM, "Mark J. Markus" <
bklawr@yahoo.com> wrote:
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