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Association Fees When Surrendering A Property In Bankruptcy

Posted by attorney Mohammed Badwan

Many clients want to know if they have to continue paying their association fees if they plan on surrendering their property in bankruptcy. The typical situation is that the debtor no longer lives in the property and foreclosure has been filed but is still pending or about to commence. 11 USC 523(a)(16) of the Bankruptcy Code makes association fees incurred subsequent to a bankruptcy filing non-dishchargeable. Therefore, any association fees owed BEFORE the bankruptcy filing are discharged and any fees incurred AFTER will not be. The debtor will be liable for any post-petition association fees as long as they have a legal title to the property. In Illinois, the debtor holds on to title of the property until the sale of the home is confirmed by a judge. Notwithstanding, 11 USC 523(a)(16), debtors that do not pay their association fees after the bankruptcy will most likely not be liable for them. Confused, let me explain. If the debtor does not pay the association fees, the bank that buys the home at sale will have to pay off any liens on the property to clear up title if they wan to sell the house to a third party (which is always the case). The bank then can not hold the debtor liable for the fees since the contract (mortgage and note) between the debtor and the bank was entered into prior to the bankruptcy. Since bankruptcy severs almost all pre-petition liablities, the bank can not sue the debtor for the associaton fees they paid for the debtor. Bankruptcy is a very specialized and complex practice and can be very confusing. Therefore, consulting with a competent bankruptcy attorney is highly recommended.

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