Discharge and the HOA

[Slipp20]

Hi friends. We filed Dec. 2017 and made our final payment Dec. 2022. We received our discharge on April 17, 2023.

My question is, has anyone had success getting a lien removed from their property from the HOA after all final payments have been sent and you have a discharge in hand? My HOA has put us through the wringer over the last few years. I'm done and ready to move. The community association manager is unhelpful and has tried to make my life miserable.

[justbroke]

You can't get the lien removed. HOA liens so-to-speak run with the land; in Florida they attach to the property itself. When you received your bankruptcy discharge, the only thing you removed was your personal (in personam) liability to pay the debt. Generally speaking, HOAs can go after the individual (in personam) and against the property (in rem). That's the best of both worlds for them because their lien attaches to the property and they get to go after you personally. But, alas, your bankruptcy discharged your personal (in personam) responsibility. The only avenue for the HOA is the property itself (in rem).

Be careful and obtain advice from a Florida Bankruptcy Attorney. There are nuances and caveats, but I believe that the HOA will always maintain their statutory lien against the property no matter what happens. While you may not need to personally pay, the association dues, attorney fees, assessments, and interest will continue to accrue on the unpaid amount.

Talk about nuanced, consider this. If you were in a Chapter 13 then you would have paid all your past due association dues along with the attorney fees associated with the filing of the bankruptcy. If you paid your post-petition dues on-time and had no special assessments (or fines), then you wouldn't be in arrears at discharge. This tells me this is a nuanced case and needs someone to take a deep look at the underlying issue. If you have post-petition unpaid dues (accumulated pre-discharge), that brings out the caveats.

Only a Florida bankruptcy attorney is going be able to walk you through the finer points (nuances and caveats). I suggest reaching out to your Chapter 13 attorney and have them explain the issues.

(I suppose you could always sell the property subject to the HOA liens. I don't know anything about real property sales or how you could do that. I think that HOA liens are satisfied at closing regardless of the purchaser. But, again, this is not my area and it requires someone that knows the specific application of the HOA laws for Florida.)

[Slipp20]

Thanks for that info justbroke. I did reach out to our attorney but have not heard back yet. I guess what I don't understand is what else would there be for us to pay? They received 100% of the claim of arrears, fees, and interest. We are current post-petition.

[justbroke]

Ask them for a statement of account and determine the balance yourself. I can't say and it may be nuanced. As I wrote, and you confirmed, Chapter 13s typically resolve the pre-pretition arrears, but were there attorney fees unaccounted for? Even if there were attorney fees, the HOA should have updated their claim to include those fees.

So, something is afoot and I always say to be careful with HOAs when it comes to legal matters. You can run up a "new" legal bill quickly.

Your case was just discharged late April 2023. I would only communicate with the HOA through my attorney. Otherwise you may get the runaround (intentional or otherwise). If your bankruptcy attorney believes that the HOA is violated the permanent discharge injunction, your attorney can ask the court to show cause as to why they shouldn't be sanctioned.

[Slipp20]

justbroke ok sounds good. I'll wait to hear what the HOA manager has to say and then go from there. Yes, I satisfied all the attorney fees and interest in the plan and post-petition because my account was already in collections.

[justbroke]

In Florida, the HOA tend to be a little uneasy with speaking with someone in Bankruptcy. So it is highly likely that they sent it to the attorney to determine. Please make sure your attorney makes sure that they don't add more attorney fees because they had the attorney answer the question. The question should be simple and not require the association's attorney. I speak from experience!

[Slipp20]

My realtor and the broker both said their attorney would send a letter if necessary and get the lien removed prior to closing. They've done this before, which I'm grateful for. Good point though. They like to nickel and dime me for everything.