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In Texas, can your HOA file a lien against your home two days after you filed in court to begin your Chapter 7 Bankruptcy

Houston, TX |

I paid $700 in dues in December for the next years fees. Then on Jan 10, I filed in bankruptcy court to begin the Chapter 7 process....however, two days later, on January 12, my HOA filed a lien against my home. They also assessed MORE fees for "collections" during the time I was in Chapter 7...now totally an additional $1000....the bankruptcy ended in April, with all my debt discharged. Two months later, it occurs to me that I have not gotten a trash bill, so I contact my HOA...and find out for the first time, about the lien. To me, they broke Bankruptcy laws and this is criminal theft. What can I do ?

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Attorney answers 4

Posted

They did not necessarily "break" the bankruptcy laws, and there is no criminal issue. The filing of a bankruptcy case, under any chapter of the Bankruptcy Code, triggers an injunction against the continuance of any action by any creditor against the debtor or the debtor’s property. Creditor actions taken after the stay is in place are generally void or voidable. Any action the creditor takes in violation of the stay has no legal effect. Therefore, the filing of the lien and assessment of collection fees arising out of a pre-petition obligation are voidable. There may be penalties for doing so if you can show that the Association filed the lien despite knowledge of the bankruptcy filing - but penalties are available only for willful violation of the stay. If the Association had actual notice of the bankruptcy filing before liening the property, contact an attorney. If not, proceed as below...

Provide the Association with documentation of the date of your bankruptcy petition filing and a copy of your discharge order, and request that they remove the lien and drop the collection fees. Let them do the work for now. Any action taken to collect the debt after you provide this information violates the permanent injunction and you should seek legal assistance - plenty of attorneys in your area will gladly assist you in recovering penalties from the Association.

This communication may be considered an Attorney Advertisement under the Minnesota Rules of Professional Responsibility. Rogers Law Office is a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code within the meaning of Title 11, United States Code Section 528.

Asker

Posted

THANKS for all responses. Well, there is no doubt they knew of the bankruptcy, and I recorded the HOA and law firm both on the phone (legal in Texas) stating they were aware of the bankruptcy and timeline of such. This was their response: First, the invoice (attached) that was sent to you by the Association clearly states that "legal fees maybe due to you." You where fully aware that your file was turned over to collections/attorney status because you and I had several conversations regarding your balance due prior to the payment that was made in December. The balance on the statement I have attached did not represent payment in full. Most of the legal fees billed where prior to your bankruptcy. The association did not apply them to the statement until recently. I understand that your bankruptcy was discharged, that means you have been personally discharged from the debt owed to the Association, but the lien that is in place stays with the land, meaning the property still owes the full amount due. Well? Is he right? Or just thinks hes right? Or just wants me to think he's right? Also, I realize that technically this is a civil issue, but when someone knowingly tries to separate you from your money or property, it's still criminal behavior, just white collar, and THIS IS WHY there are currently bills in the works to CAP HOAs from over billing and fradulently billing people. It's a known issue. The disturbing thing, is that I have never recieved anything in the mail about this. I assume it's because they knew it would be in violation to mail me collection notices while in the bankruptcy process.

William James Rogers

William James Rogers

Posted

All debt based upon facts or circumstances that arose before the date of filing, including collection all costs and fees arising out of or related to all such debt, have been discharged. All efforts to collect are barred by the permanent injunction now in place. The lien is voidable - it is a post-petition action affecting property of the estate (your interest in the home was property of the bankruptcy estate at the time the lien was filed). If the Association will not voluntarily remove it you may need an attorney to help. Choose one familiar with bankruptcy to pursue penalties based upon violation of the stay and the discharge injunction.

Posted

Once you file a case with the bankruptcy court, the Automatic Stay arises and protects you. A simple letter to the HOA and/or its attorney should resolve this issue. The pre-petition debts were discharged. Any claim that began after you filed may still be owed.

This is a civil issue and not a criminal issue. See a consumer law attorney.

Mr. Goldstein is a Virginia-licensed attorney only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation. Contacting Mitchell Goldstein or the Goldstein Law Group does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised.

Posted

Just a quick comment. If the lien is set aside, a bankruptcy may wipe out the pre-petition arrears because they will be unsecured like most of your other debts. The Bankruptcy Code, however, makes it clear in Section 523(a)(16) that homeowner’s assessments coming due after the date of the filing of the petition commencing the bankruptcy case are not discharged in the bankruptcy. Homeowner's assessments in this bucket remain the personal debts of the debtor who holds title to the property and for which the debtor is responsible. This problem comes up frequently and many people are caught unawares, so I felt it worth a mention. Best of luck.

The posting attorney is admitted to the U.S. Tax Court and authorized to represent clients in all 50 states before the IRS. Outside of IRS matters, the posting attorney is licensed to practice law generally in the State of Texas and no other state. The information provided in this post is for general educational purposes only and should not be relied upon as legal advice by any party. No attorney-client relationship is formed with any party by the mere posting (or reading) of this information on the AVVO website. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency

Asker

Posted

Thanks to everyone for their input! I had paid the due for 2011 in December of 2010. So I should not owe anything. The bankruptcy just ended the end of April, one and a half months ago. NOW I owe a new $1200. After me going in person to the HOA to pay the $708 for 2011, someone should have notified me if I owed more than that at the time. Either way, I have tape recorded the phone coversation with the HOA and boiler room paralegal at the collection firm, both stating they knew about the bankruptcy. So I think my case is cut and dry. This was boiler room paralegal/collectors response to me: First, the invoice (attached) that was sent to you by the Association clearly states that "legal fees maybe due to you." You where fully aware that your file was turned over to collections/attorney status because you and I had several conversations regarding your balance due prior to the payment that was made in December. The balance on the statement I have attached did not represent payment in full. Most of the legal fees billed where prior to your bankruptcy. The association did not apply them to the statement until recently. I understand that your bankruptcy was discharged, that means you have been personally discharged from the debt owed to the Association, but the lien that is in place stays with the land, meaning the property still owes the full amount due. Is he right? Or just wants me to think he's right?

Posted

If I am reading your question correctly, you are stating that you prepaid your current years dues in December of last year. This sounds like a billing screw up. If you already paid the dues, no lien should have arisen. A visit with the HOA's lawyer, showing them proof of payment that no dues due when they filed the lien, and a copy of your bankruptcy petition and bankruptcy discharge should get their counsel to advise them to release the lien. Failing that, if the dues were actually paid, and not applied to a prior year that may have been in arrears, you should visit with your prior bankruptcy counsel to see if this is a discharge violation that you could bring to the attention of the bankruptcy court in a contempt action. Otherwise, hire a real estate lawyer to sue to quiet title.

I am providing this general reaction to your question for discussion and informational purposes only. My answer could change depending on the specific facts of your situation. This answer is not intended to be legal advice and providing this answer or your reading it does not create an attorney-client relationship between you and me. I create such relationships only when there is a signed attorney fee contract between my client and me.

Asker

Posted

The HOA, took my payment, telling me that was all I owed for 2011 dues. THEN, later applied that money to "collections" due at their attorney's office they were "not aware of" yet. Then placed a lien, I do not know how much. At the very least, I should have been informed, but I got no notice from them, probably due to being in Chapter 7, they knew it would be a violation to mail me anything. So, yes, it is a total violation of Bankruptcy Laws, since they knowingly did all of this AFTER I filed Chapter 7, then added even more bogus fees to my account DURING bankruptcy. I am pursuing this legally now.

Kenneth Clay Courville

Kenneth Clay Courville

Posted

Your bankruptcy counsel should address this with the homeowner's association. He or she is in the position to get you any relief from the bankruptcy court to which you would be entitled. The stay enjoins the HOA from filing the lien notice without the bankruptcy court's permission.

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