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AZ: Pre discharge debt included in small claims case?

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  • AZ: Pre discharge debt included in small claims case?

    Having gotten a lot of help here during my BK, I figured I would run this one by everyone here as well as I figure out how to handle it...

    Prior to April of last year I was in Arizona, and am now in New York.
    BK discharged in 10/2012, included in that was some past HOA fees and fines. To make it simple lets say it was $2000 balance to them on the day I filed my BK paperwork. Bank of America filed foreclosure paperwork after discharge which was fine with me, they were not able to make the payment affordable so I knew I was leaving. Couple months later get a good job offer in New York and start planning the move. Moved the first half of our stuff the end of March, and shortly after that (and before we could get the rest) the bank changed the locks, so I have not returned to there since. I am fully aware that I am responsible for the HOA amounts due -after- my BK discharge. I also know that had BoA completed foreclosure they would have had to pay it to secure clean title, but that's not so important right now. Well, bank cancels the sale just before auction and then sells the loan to another lender some time after. (This part I just found out about last month - 8 months after they cancelled the auction) BoA had been having someone "cut the grass" but apparently stopped because the HOA has not sent me a notice about weeds.
    This is where it gets interesting. After exchanging emails with the HOA and explaining that the bank had taken possession and I would try to contact them about whoever they have doing maintenance, the HOA decided to file a small claims suit for the balance on my account. Filed for $3500, the maximum for small claims in Arizona, consisting of the $2000 pre-petition debt, a few hundred in collections costs, plus the HOA fees and fines that have accrued since the BK case was filed. I can work out the whole answer to it and all, and believe I can respond by mail (And hopefully can appear by phone, as just starting a new job and having an upcoming addition to the family certainly cannot afford to fly to AZ to appear, either because of time or money) - But, what about the pre-petition amount? I know they cannot collect on it, despite them explaining that because I did not move out immediately it still is a valid debt. (I know the lien will remain though..) Will bringing it up in my answer to the suit be enough to bring it to the courts attention and have the inevitable judgment reduced? I am not trying to get out of paying them what I supposedly owe (Unless of course the bank wants to take it back and clears the account - wishful thinking) just don't want to pay a debt that was already discharged.

    Of course any advice on getting the bank to take the house sooner than later would be appreciated too. BSI Financial is the servicer now

    Thanks again
    Greg

    SORRY! Just saw this wound up in the before the discharge section but don't see how to move it! Mods can relocate if appropriate, sorry again!
    Last edited by gregemm; 05-05-2014, 10:56 AM. Reason: Apology for incorrect location

  • #2
    That reads as a violation of the permanent discharge injunction found in 11 USC 524. I would first, send a certified letter return receipt to the Association and its Attorney of Record demanding that they cease attempting to collect a discharged debt. Make sure you inform them, in that letter, that any continuation of process to collect will be met with a Motion to Re-Open and for Sanctions for Contempt of a court order (the discharge order). Include a copy of the discharge.

    I don't know the procedure/process for answers in Arizona, but in your answer, you can deny the alleged amounts as discharged in a bankruptcy proceeding. You might even be able to file a suggestion of bankruptcy, and you should include the discharge order.

    I might also call the Association and/or their Attorney to let them know that they are violating the injunction. I would still send the certified letter return receipt.

    As for speeding up the foreclosure... there is nothing that you can do. If you are friendly with the Association, maybe you can get them to foreclose, but it reads to me that they'd rather sue you personally, than start a foreclosure. So, that angle may be moot.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      Thanks- You know, when I found out the association was serving papers, for a second I got excited and thought they were going to foreclose. The new mortgage services has become as unresponsive as Bank of America was, once they learned that locks were changed last year

      I will include the discharge info with the answer, I guess the key is the less formal small claims procedure. They include the form for the answer and it is basically "I do not owe the plaintiff because:" so it seems wrong explaining that I only owe a portion, but since it has to be done on their form I guess a short response and details on the supporting documents will work. I will also follow up with the association as you mentioned. I am still a bit shocked that they would try going to court and include the part that was discharged, although maybe they just figured I would panic and magically find the money to pay them with!

      Thanks again, will come back when I have an update

      Comment

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