Here it goes:
Last july we filed ch 7 and got a discharge. This included a large amount of hoa dues. Hoa had a lien. They initiated the foreclosure sale and the sale was Mar 31, 2013. Judicial foreclosure. No one bid. We have a 1 yr redemption period. We also surrendered our home in the bankruptcy but bank hasn't started foreclosure yet.
We just got a letter from the Hoa attorneys stating they would be severing our utilities july 8th if we dont pay psst due amount. My issue is that in the total amount due, they included the amount that was included in our discharge. Isnt that a violation? Our hoa was formed under the old condo act so yes they can terminate our utilities.
It doesnt seem right tho that they are including pre petition dues.
Chapter 13 Bankruptcy Attorney
Where I practice if the HOA has a lien then they could seek to collect any amount owing under the lien plus any post petition HOA dues. When you received your discharge the discharge eliminated your personal liability. However, when the HOA filed the lien they created in rem liability against your house as well as in personal liability which is your personal liability. Basically by filing the lien they established a link against the property itself (paraphrased in rem means "in the thing") which means that they assert the debt not only against you, but like your mortgage, they assert the right to collect from the property. Your bk eliminated your personal liability but the HOA can still seek to collect by enforcing the lien against the property. If you had an attorney talk to your attorney.
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Chapter 7 Bankruptcy Attorney
If the HOA had a lien, their lien covers the entire amount they are owed, as secured by the property. If you had resumed paying the HOA afterwards, you might have a defense to a utility cutoff, but since you didn't, I think you would have a hard time persuading the bankruptcy court that this is a violation of the bankruptcy discharge. Hope this perspective helps!
If the HOA is including discharged fees, that is contempt of the discharge injunction and can result in damages in your favor. Depending upon the facts of your case, this could result in damages or might be a wash. In my experience, HOA's will try to do it dirty like this and get extra fees but once caught, they are willing to negotiate. You will want to contact an attorney to at least discuss your options.
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