I filed Chapter 7 Bankruptcy & listed my HOA (home owner's assocation) as a creditor in BK. My BK was discharged. Months later, my HOA filed a State Court action against me for the same debt that was discharged in BK. Is this legal? Can they take my home? Shouldn't they have pursued collection under the BK? Please help.
You may have been sued for post petition debt. I would've sure what the debt covers.
Jonathan D. Leventhal, Esq.
Leventhal Law Group, P. C.
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Are they suing for pre-petition arrears or new post-petition debt? Did you keep your house? You can only discharge pre-petition HOA arrears when you are surrendering the property. Even then you remain liable for post-petition debt until the property is no longer in your name. If you listed HOA pre-petition debt but are keeping the property, them all you have discharged is youf personal liability for the debt, but the HOA still has their statutory lien against your property and your property remains liable, meaning they can sue to foreclose just like your mortgage company can foreclose if they are not paid.
Unfortunately, Home Owners Association are special creditors when it comes to bankruptcy. The rules are that all fees owed up to and including the day of filing you BK are discharged in the bankruptcy. All fees that come due the day after you case was filed you owe and are responsibly for paying. You can avoid paying your mortgage but not your HOA. Yes , if these are post petition fees they can sue you and even foreclose on your home.
Remember that on this forum attorneys try to answer your questions with limited facts available to them. My answer should in no way be considered legal advice. No attorney client relationship has been formed by any answer given here.
As already pointed out, HOA dues are essentially exempt from discharge in BK proceedings. But, you may always seek to negotiate a reduction of the debt owed. I truly wish you the best of luck! And as an aside, if you found my direction helpful, and if you feel appropriate; could you be so kind as to designate my answer as the “best” answer to your question?
The reason you have received contradicting answers on this question is that it sometimes depends on which judge you get. Generally, if the HOA failed to record a lien for the past due HOA dues prior to filing your BK, then past due HOA dues are, in fact, discharged ... but post-petition dues are not and you will be responsible for them as long as the property is in your name. If they did obtain their lien prior to your filing, then that lien extends to all dues you owed or come to owe. We do have one judge in the Southern District who has opined that the dues are an obligation which "runs with the land" and must, therefore, be treated as a lien (whether separately recorded or not). I'm pretty sure he's in the minority.
Chapter 13 Bankruptcy Attorney
The HOA cannot sue you for the pre-petition debt that was discharged, however if you continued to live in the home and not pay the HOA dues they can sue you for the post-petition dues. Any debt you incurr since the filing of the Chapter 7 you are liable for even if it was a pre-petition creditor. A Chapter 13 would stop the lawsuit and allow you to pay the HOA arrearage as long as you continue to pay your monthly HOA dues going forward.
It sounds as if you remain in the home which means only the personally liability of the HOA debt was removed for the amount accrued up to the day you filed your petition. You are personally liable for all post-petition dues. That being said, HOA's are a tough bugger nowadays and we are dealing with HOA's more than ever before. Likely, they filed a lien against your property long before you filed bankruptcy which means they can foreclose on your home even if you are current on your mortgage. You need to hire an experienced attorney in order to negotiate an agreeable outcome to the HOA dues that you owe. Especially if you are still residing in the residence.
Homeowner's Associations have special rules when it comes to bankruptcy cases. A debtor can discharge any pre-petition association dues. However, an HOA can sue for the arrears from the date of the petition to present. I would suggest getting an accounting from the HOA to determine the dates for the arrears which they are suing you in State Court for.
Natalie Spilborghs is licensed to practice in the Central District of California. It is prudent to check with the local rules of each individual district court as well as to consult with a local attorney.