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After bk 3 yrs ago , old HOA is suing me / foreclosing on the property , the bank hasn't foreclosed on yet . Options ?

Glendale, AZ |

Filed bankruptcy 3 years ago and included the town house . Soon after lost my job and income has been much less since . I haven't been able to pay the taxes or HOA fees on the property for years , but the bank will not , or has not foreclosed . Now I've been served by the HOA's attorneys , they are attempting to foreclose , sell the property , and charge me any difference . What do I do , I can't afford to pay them , nor do I want to on a property I haven't paid on in over 4 ( ? ) years ? I don't know what to do .

Attorney Answers 3


  1. Unfortunately, I see this issue come up a lot. When you filed bankruptcy, you may have signed a document saying that you intended to surrender the property. Unfortunately, intending to do something isn't the same as actually doing it. Because of market conditions, many lenders have not pursued foreclosure because they don't want to pay the HOA dues either! And your Chapter 7 only eliminated debts that occurred before you filed bankruptcy, not the continuing charges for HOA dues that occurred after your case was filed.

    If you were my client, I would put you in touch with a local realtor with connections to your lender to see about a short sale so you don't have as much risk for personal responsibility for these HOA dues. Hope this perspective helps!


  2. Did you do this on your own? Your attorney should have known that post petition HOA fees are not dischargeable as long as you own the property.

    Maybe it's time to talk to the attorney and see if he'll pay some of that difference since he/she messed up?

    It's also possible to wait a little while and file a 13 then only pay them back pennies on the dollar as unsecured deficiency claim?

    I'm just trying to lay out some options for you.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here. Please visit my web site: www.avanesianlaw.com for more information about my services.


  3. HOA fees and assessments are discharged by the bankruptcy, but only those that existed before the bankruptcy was filed. Any fees and assessments that are imposed after the petition is filed and before title is transfered are still your obligation, per 11 USC 523 (16).

    Say you owe $1,000 in past due HOA fees at the time the petition is filed, another $1,000 accrue after filing until title is transfered when the bank forecloses. The original $1,000 is discharged. The second $1,000 is your obligation, even after title transfers, but you are not responsible for any new assessments thereafter. You cannot fail to pay and expect the new owner to have to pay the past due amounts.

    If you still live there, consider the HOA assessments to be your rent. Call the HOA attorneys and make an agreement to settle so that you can stay in the home. If you no longer live there, you still have to pay them. You may also want to call and make an agreement to pay so that they do not attempt to garnish your bank account.

    I am an Attorney with Fife & Cesta, a compasionate bankruptcy firm conveniently located off the US 60 in Mesa, Arizona. In addition to our other areas of practice, Fife & Cesta is a debt relief agency. We help people and families file for relief under the bankruptcy code. https://plus.google.com/#105782058221121955478/posts The answers given here are based on the information in the question, but for a complete answer you should have a consultation with an attorney you trust. Call (480) 850-6541 for a free bankruptcy consultation. We carefully evaluate your situation and give you real advice.

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