What can an HOA do if a homeowner who owes back fees files for Chapter 13 and doesn't include the HOA as a creditor?

Asked almost 2 years ago - San Diego, CA

HOA has a lien and is owed fees and back payments when the homeowner/debtor filed for Chapter 13 BK. The plan does not include the HOA as a creditor and does not include payments to cover the debts owed to the HOA. What options does the HOA have to ensure (1) they are listed as a creditor and (2) they get paid through the Chapter 13 plan?

Attorney answers (4)

  1. Lois R Beasley-Carlisle

    Pro

    Contributor Level 10

    3

    Lawyers agree

    Answered . Suggested answers would be file a claim for dues due prepetition. File a Motion for Relief from Stay if the case is already confirmed to get court approval to being the foreclosure process. If the case is not confirmed file an objection to confirmation and/or motion to dismiss on the grounds that that debt is not provided for. If you are the homeowner association hire an attorney experienced in bankruptcy law. If you are the debtor amend your plan as all debts are supposed to be included.

    There are many factors that can affect how best to handle this matter and the best advise is usually to hire an... more
  2. David Lloyd Merrill

    Pro

    Contributor Level 15

    2

    Lawyers agree

    Answered . Hold the phone -- lots of problems here. First, there is no "notincluding a creditor" in any bankruptcy case. Bankruptcy is like pregnancy: you are or you are not. If you are in bankruptcy you include absolutely ALL creditors -- claims yuou know you woe, claims you don't think you owe but someone else thinks you do, and even claims you might or might not owe eventually. It is a very broad brush stroke, and as I tell my clients: think meat axe, not scalpel.

    Your Chpater 13 plan, based upon the limited facts you present, would appear to need to deal with the HoA proactively. Meaning, don't worry about what the HoA needs to do or file: speak to your lawyer and get your plan and schedules amended.

    Your lawyer will know exactly what to do.

  3. Dorothy G Bunce

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . The HOA needs to begin by filing a claim in the Chapter 13. Depending on the status of their claim (whether or not their claim is secured by either the facts or by the operation of the law), the Debtor may find him/herself unable to confirm a Plan without addressing this issue. The HOA may also want to file an objection to the Plan itself if it fails to properly address the issue of its secured claim. Hope this perspective helps!

  4. Charles Moses Clapp

    Contributor Level 7

    1

    Lawyer agrees

    Answered . The HOA can file an objection to your plan if not confirmed and a motion for relief from stay so they can proceed with foreclosing on the home and selling it to pay off their lien. However, the HOA also has a nuclear option if you are not current on HOA fees after filing bankruptcy. Pursuant to 11 USC sec 503(b)(1)(A), the HOA can file an administrative claim for unpaid HOA fees that accrue post-petition, meaning the HOA gets paid through your bankruptcy and before any other creditor--or your attorney.

    In short, you need to amend you petition and plan to include the HOA, or you need to surrender the property. Talk to your attorney about doing this immediately. Incidentally, if there are any other creditors you have left out of your bankruptcy, you need to add them as well.

    Good luck and I hope this helps!

    www.lawcmc.com

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

28,174 answers this week

3,084 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

28,174 answers this week

3,084 attorneys answering