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HOA Dues - Postpetition and Post Surrender
Tim:
The question is a little to general. Why don't you start with a search of "HOA", on this list. You will see lots of posts.
dennis
________________________________
To: cdcbaa@yahoogroups.com
Sent: Wednesday, November 9, 2011 7:48 PM
Subject: RE: [cdcbaa] HOA Dues - Postpetition and Post Surrender
This situation is coming in one of my cases. The debtor abandoned the condo. Statement of intent says surrender. The lender refuses to take the property back but also refused a loan mod or deed in lieu.ets. The condo is worth less than half of what she owes on it. money.
I fear that the HOA is going to stand on the formality that title has not transferred.
So, I could use some case law and a little more elucidation on this issue.
Tim Umbreit
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Stella Havkin
Sent: Wednesday, November 09, 2011 5:05 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] HOA Dues - Postpetition and Post Surrender
However, I was recently involved in a case involving post-petition HOA under similar circumstances. I reviewed the legislative history for 523(a)(16) and cited it to the HOA. The history specifically refers to cases where the debtor no longer occupies the property and had filed a statement of intent to surrender as a factor to be considered in whether the debtor is liable for the dues. Also, in Florida recently there have been rulings on this issue. I was able to convince the HOAs attorneys to leave my client alone based on that.
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Mark T. Jessee
Sent: Wednesday, November 09, 2011 3:43 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] HOA Dues - Postpetition and Post Surrender
Postpetetion obligations and attempts to collect upon them are not affected by the automatic stay. As long as the debtor is on record title the debtor is responsible for the postpetition HOA dues. Stating and intention to surrender and moving out are irrelevant. The lendermust accepttranfer of title into its nameand title changemust be recorded before the debtor's obligation to the HOA stops accruing.However, I recommend going through the HOA postpetition invoice(s) with a fine tooth comb, because I cannot tell you how many times I findHOA's billing for prepetition related obligations like late fees on the discharged debts or attorney fees for postpetition collection letters....
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Mon, 7 Nov 2011 03:54:14 -0600, "Link W. Schrader" wrote:
>I have an interesting case where the debtor surrendered their condo to the bank and moved out 2 months after filing a chapter 7. The debtor received a chapter 7 discharge and over a year later, without so much as a single demand letter from the HOA, a state lawsuit is filed to collect about 12 months of dues (from postpetition to when the bank actually transferred title) and of course lots of attorney fees and late penalties.
>
>Issues presented: #1- Can the HOA send postpetition notices to a debtor for postpetition assessments without violating the stay? Prior to discharge or just after discharge? #2- When does the debtor's obligation to pay HOA assessments end when the property is surrendered? #3- if the debtor's obligation ends when the debtor no longer has an equitable interest in the property (ie after surrender) then does the HOA's suit to collect for post-surrender assessments violate the discharge injunction? #4- Finally, any thought on if this case should proceed in state court or if a reason exists for moving it to the bankruptcy court?
>
>Thanks for any thoughts.
>
>
>Link W. Schrader, Attorney
>lschrader@schrader-law.com
>(714) 542-5922 Orange County
>(310) 413-6924 Los Angeles
>(619) 952-8342 San Diego
>(310) 878-4158 Fax
The post was migrated from Yahoo.
charset="UTF-8"
This situation is coming in one of my cases. The debtor abandoned the condo. Statement of intent says surrender. The lender refuses to take the property back but also refused a loan mod or deed in lieu. Debtor walked away. Debtor is flat broke and barely makes ends meets. The condo is worth less than half of what she owes on it. The condo complex has so many defaults that the HOA is desperate for money.
I fear that the HOA is going to stand on the formality that title has not transferred.
So, I could use some case law and a little more elucidation on this issue.
Tim Umbreit
The post was migrated from Yahoo.
charset="UTF-8"
However, I was recently involved in a case involving post-petition HOA under similar circumstances. I reviewed the legislative history for 523(a)(16) and cited it to the HOA. The history specifically refers to cases where the debtor no longer occupies the property and had filed a statement of intent to surrender as a factor to be considered in whether the debtor is liable for the dues. Also, in Florida recently there have been rulings on this issue. I was able to convince the HOAs attorneys to leave my client alone based on that.
The post was migrated from Yahoo.
charsetF-8;
format="flowed"
Postpetetion obligations and attempts to collect upon them are not
affected by the automatic stay. As long as the debtor is on record
title the debtor is responsible for the postpetition HOA dues. Stating
and intention to surrender and moving out are irrelevant. The lender
must accept tranfer of title into its name and title change must be
recorded before the debtor's obligation to the HOA stops accruing.
There is no basis to remove the action to bankruptcy court.
However, I recommend going through the HOA postpetition invoice(s)
with a fine tooth comb, because I cannot tell you how many times I find
HOA's billing for prepetition related obligations like late fees on the
discharged debts or attorney fees for postpetition collection
letters....
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED
RECIPIENT OF THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE
PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW,
USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY
PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL
AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE
FOR YOUR COOPERATION.
On Mon, 7 Nov 2011 03:54:14 -0600, "Link W. Schrader" wrote:
I have an interesting case where the debtor surrendered
their condo to the bank and moved out 2 months after filing a chapter
7. The debtor received a chapter 7 discharge and over a year later,
without so much as a single demand letter from the HOA, a state lawsuit
is filed to collect about 12 months of dues (from postpetition to when
the bank actually transferred title) and of course lots of attorney
fees and late penalties.
Issues presented: #1- Can the HOA send postpetition notices to a debtor
for postpetition assessments without violating the stay? Prior to
discharge or just after discharge? #2- When does the debtor's
obligation to pay HOA assessments end when the property is surrendered?
#3- if the debtor's obligation ends when the debtor no longer has an
equitable interest in the property (ie after surrender) then does the
HOA's suit to collect for post-surrender assessments violate the
discharge injunction? #4- Finally, any thought on if this case should
proceed in state court or if a reason exists for moving it to the
bankruptcy court?
Thanks for any thoughts.
Link W. Schrader, Attorney
lschrader@schrader-law.com
(714) 542-5922 Orange County
(310) 413-6924 Los Angeles
(619) 952-8342 San Diego
(310) 878-4158 Fax
start="rwxyk4no3r4@webmail.mysuperpageshosting.com"
charsetF-8
p{margin: 0;padding: 0;}Postpetetion obligations and attempts
to collect upon them are not affected by the automatic stay. As long as
the debtor is on record title the debtor is responsible for the postpetition HOA
dues. Stating and intention to surrender and moving out are
irrelevant. The lender must accept tranfer of title into its
name and title change must be recorded before the debtor's obligation
to the HOA stops accruing. There is no basis to remove the action to
bankruptcy court.
However, I recommend going through the HOA postpetition invoice(s) with a
fine tooth comb, because I cannot tell you how many times I find HOA's
billing for prepetition related obligations like late fees on the discharged
debts or attorney fees for postpetition collection letters....
Mark T. JesseeLaw Offices of Mark T. Jessee"A Debt Relief
Agency"50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805)
497-5868 (805) 497-5864 (Facsimile)NOTICE TO RECIPIENT: THIS E-MAIL IS
MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND THIS
COMMUNICATION IS INTENDED TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL
IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS
E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY
RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN
ADVANCE FOR YOUR COOPERATION.
On Mon, 7 Nov 2011 03:54:14 -0600, "Link W. Schrader"
<lschrader@schrader-law.com> wrote:
The post was migrated from Yahoo.