Lis Pendins

[Lilyat108x]

I have one LP by BOA on my home that was discharged in ch 7 in 7/2010. On 8/29/13, the HOA has also put a LP on the home for a lien they filed back in 2009 for my HOA dues. However, that lien was satisfied by me (paid) before I filed for bk 7/2010.

Currently, I am behind in HOA fees from the time of my filing bk in 7/2010 to this present date but the LP that the HOA just filed on 8/29/13 didn't mention anything about fees from 7/2010 to present date.

I have a seriously ill daughter and I can't afford to pay the HOA from 7/2010 to present if they try to collect from me personally. I have tried to stall my first LP (BOA) by getting a lawyer, but I do not want the house in the long run. Just wanted to not pay as long as I could.

Since the HOA has this LP, will they come after me later for the fees due from 7/2010 to present or will the LP satisfy them? They probably should have filed the LP for the fees due from the time I filed bk in 7/2010 to present date instead of a lien that was already satisfied.

[Lilyat108x]

I made a mistake. The LP filed by the HOA in 2009 was not satisfied in payment by me. However, I did list that attorney that was representing the HOA in 2009 in my list of creditors. That said, I believe that lien was discharged in the bk. I know I am still liable for the HOA debt from the time I filed bk and on. But this new LP filed by the HOA's attorneys a few days ago did not mention the debt from the time I filed bk to present. Does anyone have advice on how to address this?

[Pjmax]

Hi Lily, I'm sorry I don't have experience with this, just wanted to say; hang in there, I'm sure someone will be along with advice. It's a holiday weekend, so please understand it's a little slow right now.

[Lilyat108x]

Ok I will. Thank you.

[tobee43]

hi lily, hopefully has PJ said, more people will be on to give you more advise. i will give you the little i know and understand generally with respect to your situation. an HOA can pursue the bank for the funds, they are able to do so, but also know that a lien and a lis pendens do not have much to do with one another. a lien is attached to the property and will always stay unless satisfied or dismissed. the reason is because you are discussing separate debts. a debt to the association (the association fees) is inherently and wholly separate from the mortgage debt, which in turn is separate from possible back-taxes. while the mortgage debt may be covered by the sale,in your case it would be BOA, generally, while other fees, or expenses or debts associated with the property the are not, which is why the HOA is properly insisting that its' debt be paid if they have a lien on the property. the lien still remains on title until and if paid off or until a quiet title action is pursued. this is with accordance of state law. you are in florida and what i'm saying should be applicable per the florida statue.

i hope that helps a bit. i know it's confusing, however basically one is not connected to the other and the first one from BOA most likely still stands.

[brokeinfl]

Do the banks give you any indication a L.P. is eminent, or does it just show up on the county records one day?

[justbroke]

I made a mistake. The LP filed by the HOA in 2009 was not satisfied in payment by me. However, I did list that attorney that was representing the HOA in 2009 in my list of creditors. That said, I believe that lien was discharged in the bk. I know I am still liable for the HOA debt from the time I filed bk and on. But this new LP filed by the HOA's attorneys a few days ago did not mention the debt from the time I filed bk to present. Does anyone have advice on how to address this?

This is a common misconception on just what an HOA's rights are with respect to discharged debt in a BK. Remember, a bankruptcy never modifies a lien (period). So, a lien always passes through the bankruptcy (unless you specifically filed a Motion or Complaint to Determine Secured Status). That said, the lien was still intact upon your discharge from bankruptcy. What you discharged was your obligation to pay it "personally".

Herein lies the problem. The HOA is totally within its rights to foreclose upon the home for the pre-bankruptcy (pre-discharge) debt! This is something that people forget quite easily. The HOA could foreclose upon the pre-petition (pre-filing) debt because of the lien. The lien never disappeared. In Florida, HOAs enjoy not only a super-lien status, but the HOA dues are automatically a lien upon the property on January 1 of the year in which they are (become) due.

You really do need to keep post-petition HOA dues current after filing (after discharge). Those assessments and dues are a personal liability to yourself and the HOA can sue you personally (or foreclose upon the property).

It reads as though you are in a tough place. You may want to consult your real-estate attorney, that helped you stall the BofA Lis Pendens (foreclosure), and ask what you can do with an HOA foreclosure. HOA foreclosures are much different than the bank/lender initiated foreclosures.

I can't tell you the HOA's strategy on how they are pursuing the foreclosure. You would only know what they claim when you are served the actual foreclosure lawsuit. You may be able to negotiate with the HOA in some sense, and let them know your situation (seriously ill child). You may even be able to get the bank/lender to pay the HOA so that the lender does not have issues with the HOA foreclosure.