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Welcome to: FAQ's HOA, Bankruptcy HOA Fees Bankruptcy Questions
HOA, Must Read Article on HOA Fees After filing for Chapter 7 Bankruptcy. HOA FAQ's. El Cajon, California & Greater San Diego County in Consumer Debt Bankruptcy
David A. Casey, Attorney 365 Broadway, Suite 203 El Cajon, California (619) 447-6780 Chapter 7 - Chapter 13 Bankruptcy Map to Bankruptcy Law office Click here Chapter 13 - Chapter 7 Bankruptcy HOA FAQ’s, Bankruptcy, Do I Still Owe HOA Fees After Bankruptcy We are a debt relief agency. We help people file for relief under the Bankruptcy Code. Bankruptcy El Cajon 92019, El Cajon 92020, El Cajon 92021, El Cajon 92022, El Cajon 92090. Find out if you are still responsible for HOA fees after you surrendered the property. learn when your obligation to the HOA ends. Find out what happems if you don't pay the HOA fees. it is important you hire an bankruptcy attorney who understand the bankruptcy code as it pertains to HOA'sThis is a "Must Read" Article On HOA.Bankruptcy FAQ’s Regarding HOA fees Question: Do I still owe HOA fees after filing bankruptcy even though I Surrendered My Residence? I moved out of my home after I filed bankruptcy but before the discharge. Answer: This is a very common question and the bankruptcy code that applies is strange. First. the money you owe the HOA should be listed as a creditor. Hopefully, you disclose this information to your bankruptcy attorney. Under the law a person surrendering a home, condominium, townhome, any real property having HOA fees, can discharge whatever HOA fees that are owed prior to filing bankruptcy. In other words, if you file bankruptcy, the amount owed for such fees at that time are discharged if the court grants you a Chapter 7 discharge of your debts. |
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Under the same Bankruptcy Code 523(a)(16), you are still responsible for the HOA fees until the foreclosure takes place. The Code implies that until you no longer have legal, equitable or possessor ownership in the unit, you owe the fees. This can be fees on a home, condo or some other unit that has Home Owner Associations fees. This applies even if you have moved out and are no longer living at the residence. Thus, any HOA fees or costs including late fees you are still responsible for. Now let’s say the unit was foreclosed on and you still live in the unit. Since you are still living there you still would be responsible for the HOA fees. All the following must be met: 1. You are still responsible for all debt you have incurred involving the HOA fees until the date of filing bankruptcy. If the court grants the discharge, then the fees are dismissed. 2. All HOA debt incurred after filing that you do not pay, you are still responsible for until: a. The Trustee of the bankruptcy court no longer has any interest in it. b. Your lender forecloses on the property (or you sell it): c. You are no longer in the unit. d. You no longer have the benefit of living in the unit. e. The lender has taken legal possession of the unit. (In other words, your name is no longer on the title). Now some creditor advisors and attorneys may tell their client to sign the “title” back over to the lender. This is NOT a good idea since it may cause other adversary proceedings. One question I have been frequently asked, if a debtor or a person who has an interest in real property in this situation was not informed of this before filing, would this error make the attorney or advisor liable for the HOA debt? First, all bankruptcy attorneys should inform their client about HOA fees if they have interests in real property and that they will be responsible for the fees until the property/unit/home is foreclosed on or signed over to the lender. It is considered to be malpractice not to inform the client unless the client did not disclose that they owned real property, but the since the law is clear about the person being responsible for the HOA fees the attorney is NOT responsible for the HOA debt. Since the attorney’s action was not the cause of the debt of the HOA fees, I can not see the debtor being awarded any of the HOA fees. In other words, the debtor will still be responsible for the debt. The only thing the attorney might be responsible for could be late fees and costs. To avoid any confusion, my office provides the debtor with a HOA statement regarding the debt so they are fully aware of bankruptcy laws and how the HOA fees are handled. I believe that attorneys practicing in the field of consumer bankruptcy should advise their clients who will be surrendering their home or other real property that have HOA fees associated with the property. I get calls all the time from debtors who have utilized the services of some other attorney only to discover at the end of their bankruptcy, that they were still personally liable for HOA fees. This is why I believe it is very important to discuss these issues with my clients who have any interest in real property. Many times the debtor has moved out and believes that they are no longer responsible to the HOA for the fees that they owe. For all intents and purposes, they made their intentions clear in the bankruptcy proceeding that they were going to surrendering their property back to the bank/lender. They only learned later on that they were still liable for the fees as the result of a change under the new bankruptcy code of 2005 [see 11 USC 523(a)16]. However, the new code section really has very little effect due to the nature of the priority of the underlying HOA lien. The code section clearly states: The fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor’s interest in a unit that has condominium ownership, in a share of a cooperative corporation, or a lot in a homeowners association, for as long as the debtor or the trustee has a legal, equitable, or possessory ownership interest in such unit, such corporation, or such lot, but nothing in this paragraph shall except from discharge the debt of a debtor for a membership association fee or assessment for a period arising before entry of the order for relief in a pending or subsequent bankruptcy case. The important part is that “for as long as the debtor or the trustee has a legal, equitable, or possessory ownership interest” this is what makes the debtor obligated to pay this debt. It does not matter that the bankruptcy has been filed and the debtor has moved out of the unit since the obligation (liability) continues until the property is foreclosed upon or sold. Please also remember even after foreclosure, if one still resides in the property prior to eviction, the possessory interest would continue such liability. Bankruptcy code 523(a)16 at this time is not in conflict with 11 USC 365(p) regarding the assumption of leases. Why? Since HOA fees arise from executory contracts and not leases. Question: Is there any way not to pay the debt to the HOA post filing bankruptcy? There are some options that are available: A. Probably the easiest solution is to do little if anything. Most of the time any past due fees are satisfied in escrow from the eventual foreclosure or sale since the HOA has a priority over the foreclosing party’s lien and they should get paid out of the sale or foreclosure. But this does not always happen for some reason. If you do not pay the HOA fees, you should put enough money aside to pay the fees and late fees until the exact amount is determined, if any. This way if the claim is satisfied by the HOA you might not be out any costs post filing and if you are, the amount is not that much greater than if you had paid the fees, except for the late fees and interest. B. Another possible solution is to execute a deed in lieu of foreclosure or a short sale after the filing date. The problem here this is never really recommended by bankruptcy attorneys in California since it can cause an adversary proceeding. C. You can continue to pay post-petition HOA payments as they become due until the property is transferred. D. Since you reside in California, you may make the argument that under CCP 726(a) which requires pursuit of the property prior to bringing any action against the person (debtor) personally. The problem here is that most HOA liens will not qualify as a ”mortgage” and does not fall within the statutory protection of this California code. I believe taking the safe approach is always better. Clients should save their HOA fees and don’t spend the fees post petition filing and to hold the amounts pending the results of the eventual transfer. This way, if it ever becomes a legal issue, clients would have the funds to satisfy the obligation. Most of the time, this is NOT an issue but this gives them a start on a savings account. In the worse case scenario, they have to pay the fee and some late charges and interest. We are a debt relief agency. We help people file for relief under the Bankruptcy Code. |
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This web site is intended for general information only and does make any inference that this constitutes a retainer for my services or that I represent you. This communication is an “Advertisement” as defined by the California Rules of Professional Conduct and California Business and Professions Code. No communication herein shall create an attorney-client relationship unless a separate retainer agreement is signed by an attorney and client. This material is for informational purposes only and not intended to provide legal counsel or legal advice to you. The Bankruptcy and Family Law Office of David A Casey represents individuals and businesses seeking Bankruptcy relief. We are a debt relief agency. We help people file for relief under the Bankruptcy Code. Bankruptcy, El Cajon Attorney
David A. Casey
(619) 447-6780 Chapter 13 & Chapter 7
HOA FAQ’s,
Bankruptcy, Do I Still Owe HOA Fees After Bankruptcy
El Cajon 92019, El Cajon 92020, El Cajon
92021, El Cajon 92022, El Cajon 92090
Do I still owe HOA
fees after filing bankruptcy even though I surrendered my residence? I moved
out of my home after I filed bankruptcy but before the discharge |
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