Getting so many different answers from many different sides . I'm in Florida and want to know where the statute is that allows HOA's to collect on discharged Chapter 7 debt when there was no lien recorded pre - petition . . . . Therefore , as far as I can tell , there is no in rem rights for the HOA if there was no lien recorded prior to the bankruptcy . Need something in writing . Please direct me .
Chapter 7 Bankruptcy Attorney
Well, are you talking about pre-petition HOA dues or post-petition bankruptcy dues? If they are post-petition HOA dues then: Exceptions to discharge: Section 523(a)(16) for a fee or assessment that becomes due and payable after the order for relief (generally after the bankruptcy petition is filed) to a membership association for as long as the debtor has a legal, equitable, or possessory ownership interest in the property subject to the fee or assessment.
The order of relief is you filing the bankruptcy petition initiating the automatic stay. You are responsible for post-petition HOA dues until the property is no longer in your name.
There could be a special state law that designates the HOA dues have in rem rights without the HOA filing a lien. I do not know if Florida is one of those state. You need to consult with a bankruptcy lawyer in Florida, or hopefully one will be able to better answer your question than I can.
Ryan C. Wood is a Bay Area bankruptcy lawyer and has been practicing exclusively bankruptcy law in California since 2007. Mr. Wood formerly worked for David Burchard, Chapter 13 Trustee for the Santa Rosa and San Francisco Divisions of the United States Bankruptcy Court for the Northern District of California. West Coast Bankruptcy Attorneys has filed hundreds of bankruptcy cases and has an “A” rating by the Better Business Bureau.
Legal Disclaimer: Ryan C. Wood practices law in California only. Any answers to questions re not intended to be legal advice or create an attorney-client relationship. Always consult an attorney in your jurisdiction about your particular circumstances.
Florida Statute 720.3085 provides for association assessments to act as liens. While a debtor is not personally liable for the assessments incurred pre-BK, HOA can asset their in rem rights against the property after a discharge. And Debtors can be held liable for HOA fees incurred post-BK.
If there is not a lien against the property and the HoA is only trying to collect against you personally, pre-petition debt should have been discharged in the case. Any assessments due post-petition are still owed by you including assessments that came due while the case was in process. If the pre-petition debt was included in the case, they can't collect on that without violating the discharge order.
The above is for informational purposes only. The offering of this information in no way presumes to create an attorney/client relationship and should in no way be construed as actual legal advice.