Can I stop paying my HOA fees?

[bob1esq]

Very good question. So, if the Trustee decides to step into your shoes and collect rents, then the Trustee (actually your Bankruptcy Estate) is responsible for paying the HOA fees! If the Trustee doesn't, you can later re-open the bankruptcy case and sue the Trustee!

Yes, Trustees have been sued and lost before! There was even one Trustee that was stealing.

The trustees are all about confusion and intimidation. That is the policy that comes directly from the US trustee's office. They really do not want to litigate anything, and are counting on the fact that debtors usually do not have the money it takes to fight them. But when the debtor does, they are pretty easy to beat. Most of them have little or no civil litigation experience, and more often than not, when there is a legal dispute, it is the trustee who is wrong, not the debtor's attorney. The point being, that just because the trustee says something is so, do not be afraid to take it to the bankruptcy judge. I would say that about 90% of the time the trustee has gone against me on a legal issue, the judge has decided in my favor and against the trustee.

[Dorsey]

[deleted by Doresy]

[bob1esq]

Or, how can you stop the trustee from collecting rents?

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

The code makes it clear that the trustee has the obligation to make sure the HOA fees are satisfied. It is also his obligation to pay the mortgage as well as any other lien on the property as payments come due. If you just want to close your bankruptcy, you could amend your petition and "surrender" the property to the mortgage lender. I am assuming that there is not enough equity in your property, otherwise the trustee would have put it up for sale by now.

What you currently have is a situation where you no longer own the property, the trustee does. He is the "legal" owner. Just as I have been saying all along, just because your name is on title, does not make you the "legal" owner. As I argued in my summary judgment motion, once a property is surrendered, in a title state such as California, the bank becomes the "legal" owner. If the trustee was not collecting the rents, then the bank would be entitled to collect the rents, not you, if you surrendered. There seems to be a lot of confusion about what is meant by "surrender". As I argued in my brief and as is supported by California law, by giving up possession and giving sufficient notice to everyone who may have an interest in that property of your release of all your rights to the property, you effectively surrender legal ownership. Interestingly, under California law, one need not file bankruptcy to effectively surrender ownership to a parcel of property; at least the type of ownership that would continue to make one responsible for HOA dues. Here is the link to my summary judgment motion:

lemonattorney.net/sumjment

[despritfreya]

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

Yes, this is a very good question. 523(a)(16) holds one liable "for so long as the debtor OR the trustee has a legal, equitable, or possessory ownership interest".

I would think that if the Trustee is not abandoning the asset and you get sued because you have "legal" title, you could file a 3rd party complaint against the Trustee. I think, since the Trustee is collecting rents, a demand should be made upon him/her to pay the post petition HOA but I do not know how far you will get with such a demand.

Des.

[justbroke]

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

Very good question. So, if the Trustee decides to step into your shoes and collect rents, then the Trustee (actually your Bankruptcy Estate) is responsible for paying the HOA fees! If the Trustee doesn't, you can later re-open the bankruptcy case and sue the Trustee!

Yes, Trustees have been sued and lost before! There was even one Trustee that was stealing.

[jst4f]

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

I agree. However, the mere indication of "surrender" on a bankruptcy statement of intentions, does not suddenly make the debtor no longer the owner. So much so, that Florida added a Statute making creditor responsible for 12 months (or 1% of the balance of the mortgage) of HOA/CA dues/fees/assessments that occur after bankruptcy and before the creditor takes legal title. But only 12 months.

You cannot force a creditor to exercise its rights under the security instrument or the UCC so, likewise, a mere "indication" that you want to "surrender" a property, doesn't magically make it belong to the creditor. There is nothing in 11 USC 521 (a)(2) which reads "he loses all rights to ownership of the property". It only indicates that the debtor much perform the action. Most Circuits haven't found that there is anything to do in a surrender except, I would suppose, not fight relief from stay actions or other non-bankruptcy court actions.

So much so that the debtor's property rights are uneffected by what you just wrote, 11 USC 521 (a)(2)(C) goes on to say that... "nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor's or the trustee's rights with regard to such property under this title".

Well, they should have fixed 11 USC 521(a)(2)(C) then. However, that would go against all principles of equitable title.

I don't believe Florida would have written the new Statute if it were not for the shortcomings in the plain and unambiguous language in Title 11. The real problem with bankruptcy law, is that it must coexist with underlying State non-bankruptcy law. Unfortunately, there's nothing in State non-bankruptcy law which allows a mere statement of "surrender" as losing title.

[bob1esq]

If you still have trouble fiinding it you can go to lemonattorney.net and then on the home page there is a link about 1/2 way down the page that says: "SAMPLE SUMMARY JUDGMENT MOTION"

[bob1esq]

I did prepare the summary judgment motion in an adversary proceeding. The forum will not let me post the link, but you can go to my web page at lemonattorney.net/sumjment.htm

[bob1esq]

Here is the link to the Motion for Summary Judgment Motion that was to be filed in the adversary proceeding. We never needed to file it though because after we served it upon the HOA's attorneys, they quickly settled. I hope another attorney will use the content of this motion and apply it to their client's situation and let us know the results.

[goon]

For those of you that have surrendered your house but have not received notice of the foreclosure, do your self a favor and do a periodic search of the county records and/or assessor/property tax websites. I surrendered my home as part of my ch13 filing in April 2010, I never received a notice that the bank had fully taken ownership of the property, but in mid July the house transferred (confirmed via recorded deed and update to liability information on assessor/tax sites). As of now my case is not even confirmed yet.

Had I not been checking myself, I would not have known that this happened, my lawyer also had not received any notification (other than that the stay had been lifted). Basically as soon as the bank knew that they weren't getting any money out of me they refused to talk to me or notify me about anything.

In my case there was no HOA to worry about, but I insisted on keeping homeowners insurance on the property until it changed hands, in particular because I had a pool in the back yard. This at least gave me some protection if something was to happen to someone on the property while it was still in my name.

Also as another note I did not see the documents online until about a month after they were filed. Unfortunately not every county has this information available online, but if they do take advantage of it. If they don't and it has been a while since your property was surrendered, go by the recorders office and check for records (you also may be able to call the assessor/tax office and ask who is the owner of the property).

[lfllffl]

My experience with the HOA is this:

I filed chapter 7, with the intent of keeping my home (not reaffirming - but am staying). At the time of filing, I was three months behind on dues.

My attorney told me that the debt isn't "really" dischargable, as the HOA would simply file a lien on my property for whatever amount they are still owed.

BUT - my attorney included payments on my back dues as a line item on my schedules, and as I'm over the median, this actually helped my case.

So, since I filed, I have been paying my HOA and including a small payment toward the back dues that I owe.

[justdidit]

From my understanding I'm only responsible for what comes after the date of filing with regards to HOA fees. I had somewhere between $2,500 and $3,000 worth of HOA fees built up over time of $250 a month. Filed bankruptcy and not responsible for the past amount anymore, but I'm responsible for anything after the date of filing until the bank forecloses on it.

[rikimaroo]

I think i found my answer. I am still liable to the property since even though the mortgage is surrendered, I still own title of the home. Based on what justbroke was saying, it rings so true. Oh well, I will continue to pay my fee and live here mortgage free, until they foreclose or I decide to do short sale which I also still can after research. I found this website:

"This is a question that gets asked ten times a day around here, and the answer is: If you received a discharge in a bankruptcy case in which you surrendered a piece of real estate, then you don’t HAVE to do a short sale in order to rid yourself of the mortgage debt associated with that real estate. However, there are several other factors to consider that just may convince you that a short sale is still in your best interests.


1. Condominium and/or homeowners association dues and assessments. As long as the property is still in your name (which remains the case until title transfers through the completion of a foreclosure proceeding, deed in lieu of foreclosure, or other transfer of title), you remain liable for association dues and assessments even if you surrendered the property through a bankruptcy proceeding. This can be extremely frustrating if you have already vacated the property and want nothing to do with it anymore. Unfortunately, there is no way to force a lender to take title to a property or to move forward to completion of a foreclosure sale. So, if your lender seems to have no interest in taking title to the property in a speedy manner (or at all), the next best option may be to arrange for someone else to take title through a short sale. That way, as soon as the short sale is completed and title transfers to the new owner, you can officially wipe your hands clean of any future liability for condominium and homeowners association dues and assessments.

2. Personal liability. While you may no longer be on the hook for any mortgage debt associated with your surrendered property, you may still remain personally liable for accidents or injuries that occur on the property as long as you are still the owner of record (see explanation regarding transfer of title above). This why it is important to keep liability insurance in place as long as the property is still titled in your name. Completing a short sale will rid you of this potential liability.

3. Code enforcement violations. Again here, as long as the property is still in your name, you are responsible for maintaining it to the satisfaction of code enforcement rules and regulations. A short sale will help you avoid fines for things like not cutting the grass.
"

Thanks,
Rikimaroo

[rikimaroo]

Hello All,

I am a little confused by some of the legal jargon, forgive me. I was discharged chapter 7 backruptcy in January 2010. I am still living in my house with wife and kids and have been paying the HOA. I have questioned myself time and again why am I paying this if I no longer own the house and therefore do not have any obligations to it. Cany anyone tell me if I need to still pay the HOA or can I stop? I have not received any foreclose notices.

I don't own the house and looking to leave, but waiting for the right deal.

Thanks for any assistance. Perhaps the answer is in this thread and it looks like it is, but I can't tell if its after discharge or before. From what it seems like I have to pay before discharge and after that, I don't.

Help please

Thanks,
Rikimaroo

[krisolson7]

Thank you so much !

They just denied my loan mod for my rental property & is in foreclosure...I need to find a BK lawyer in Southern California that can help me stall this foreclosure so I can still try to get a loan mod...
Does anyone have any advice ?
THIS TREAD IS EXCELLENT & INFORMATIVE...You guys have it all together !!
Kris