Can I stop paying my HOA fees?

[Mark80]

Hmm I never even thought about this, my HOA are due for 2009 in mid feb, I surrendered the home in Dec of 2008 so I just ignored the bill that came. I didn't see at that point if I legally handed over the property before the 2009 HOA season how I could be responsible to pay them. Now even though I surrendered my home mid december the property has still not be forclosed, I have not even gotten a notice.

So since you prepay for the upcoming year how can they make me hand over 450.00 if I surrendered the home before 2009?

Also lets say it all depends on the forclosure date, not the surrender date and forclosure actually happens in... like feb. Are you responsible to pay the entire years worth of HOA or would it be prorated?

Ugh, something I really didn't consider until now!

[BKcrazy]

Well, even though Florida law sgtates that, you asked a question under Bankruptcy Law. In BK Law, you cannot discharge HOA fees and assessments (period).

The Florida law would work in a non-bankruptcy status and is basically how it works outside of bankruptcy.

As you have just learned and as I posted earlier, many Banks still pay the HOA fees and all taxes to get a clean title.

As for truckerswife, your HOA Rider is part of the mortgage documentation you signed. The HOA Rider is slipped in there and most people don't know that they signed it. That is, that you more than likely signed it when closing your loan. This is specifically why lenders ask if you are in a PUD or PUC or other planned community. They usually ask if you're in a Condo or Homeowner's Association. Generally, they find this out from the title agent anyhow, but they like to know up front.

This is just my experience...not trying to say that you are wrong in any way...
My pre-filing assessments were discharged in my bankruptcy. My attorney listed them as unsecured. The president of the HOA even said that my attorney did that right. They argued about it at first. But, I am still negotiating with their attorney for the post-filing assessments. Ack.

[justbroke]

This is just my experience...not trying to say that you are wrong in any way...
My pre-filing assessments were discharged in my bankruptcy. My attorney listed them as unsecured. The president of the HOA even said that my attorney did that right. They argued about it at first. But, I am still negotiating with their attorney for the post-filing assessments. Ack.

Oh no... nothing taking wrong. I was just letting others know that they could be as lucky as you, BKcrazy. That is, that the Bank just pays everything! It does happen more often than not.

I still think the HOA portion of the dischargeability section of the BK laws, is still tenuous and will see more litigation as all these foreclosures flush out the market. I'm glad that you had a good experience on part of it. Hopefully, you can settle something on the post-petition portion.

[justbroke]

So since you prepay for the upcoming year how can they make me hand over 450.00 if I surrendered the home before 2009?

Surrendering is not a legal change of title to the property. It's all based on the deed and who is the rightful owner at the time of assessment. Of course, you can have this pro-rated if you don't use all of that year.

Also lets say it all depends on the forclosure date, not the surrender date and forclosure actually happens in... like feb. Are you responsible to pay the entire years worth of HOA or would it be prorated?

See what I wrote above. basically, you are right.

However, you could get some good luck like BKcrazy and the Bank may pay some or all of the fees.

[fltoo]

Ok, I am totally confused now.

JB, in post 5 you said, "pay dues from the time you file BK to deed changing hands."

In post 13, you said, they are NEVER dischargable.

I was assuming in post 5 that you meant, you can discharge previous fees unpaid, BUT have to start paying them after the BK filing. (since the new ones are not included in the BK)

I discharged my unpaid dues prior to filing, in the BK. I am now liable for the new ones. But, I am definintely not paying, I am going to wait til they foreclose and try to unload the property, and try to force the lender to pay in order to pass clean title. I rather take the chance of paying them later, even with attorney fees, than to shell out money now.

[justbroke]

I was assuming in post 5 that you meant, you can discharge previous fees unpaid, BUT have to start paying them after the BK filing. (since the new ones are not included in the BK)

I am confused too and there seems to be different results.

The BK Code clearly states that association fees and assessments are non-dischargeable.

When filing a Chapter 13, the fees that are included in the Bankruptcy are paid, when you are keeping your home. These fees represent a secured claim and are spread out over your plan duration.

When filing a Chapter 13, where you are surrendering the home, the fees are non-dischargeable as well, but generally, the Bank foreclosing upon your home, will pay the fees. Some banks will only pay those fees up to the date of your petition, leaving you with the fees from the date of filing, until the deed changes hands. Other banks will pay all the fees to guarantee a clean title.

I didn't post any scenario for a Chapter 7, but it should work similarly as above for Chapter 13.

[fltoo]

Oh well, back to square one. I will have to try to find more info on it.

Maybe chap 7 and 13 are different?, although I find that unlikely.

I def discharged mine in chap 7. Will email lawyer and see what he says.

Can you, if time, post the link where the BK code addresses this?

As always, thanks for your input.

[fltoo]

Ok, I checked a bunch of info, mainly addressing FL, (HOA hell) too much to post, and all say the same.

Saying that one of the changes of the new BK code, 2005, is that it now addresses HOA dues.

Unpaid dues up to date of filing are discharged. After filing, it becomes the responsibility of the homeowner again.

Funny, when googling, JB post came up saying "HOA dues are not discharged."
--------------------
JB states, "When filing a Chapter 13, the fees that are included in the Bankruptcy are paid, when you are keeping your home. These fees represent a secured claim and are spread out over your plan duration."

But JB, keep in mind, only if the HOA puts a lien on your house, otherwise, they are unsecured.

[BKcrazy]

My BK attorney told me that they had taken another case to Superior Court regarding HOA fees. He lost. He said the law is somewhat vague. But, yes, at least I was lucky about the pre-filing assessments.

One thing I can tell you, is beware of an HOA's attorney. Mine made mistakes in the initial demand letter. I have been going back and forth with them since August. They also checked my credit, and I am still trying to find out if that was illegal for their attorney to do that.

[justbroke]

Ok, I checked a bunch of info, mainly addressing FL, (HOA hell) too much to post, and all say the same.

Saying that one of the changes of the new BK code, 2005, is that it now addresses HOA dues.

Unpaid dues up to date of filing are discharged. After filing, it becomes the responsibility of the homeowner again.

Funny, when googling, JB post came up saying "HOA dues are not discharged."
--------------------
JB states, "When filing a Chapter 13, the fees that are included in the Bankruptcy are paid, when you are keeping your home. These fees represent a secured claim and are spread out over your plan duration."

But JB, keep in mind, only if the HOA puts a lien on your house, otherwise, they are unsecured.

Exceptions to discharge

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt--
.
.
.

(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor's interest in a unit that has condominium ownership , in a share of a cooperative corporation, or a lot in a homeowners association, for as long as the debtor or the trustee has a legal, equitable, or possessory ownership interest in such unit, such corporation, or such lot, but nothing in this paragraph shall except from discharge the debt of a debtor for a membership association fee or assessment for a period arising before entry of the order for relief in a pending or subsequent bankruptcy case;

Fancy and confusing wording.

My read is that it means that you cannot discharge any fee which becomes payable after you file. However, it's unclear as to those before filing. Since these fees may be statutory liens under non-bankruptcy law... it's up in the air. If the HOA has also recorded a lien, this makes it much more difficult to discharge as well.

So, yes, the HOA would have to have filed and recorded a lien in Florida. In other States, the difference will be in the underlying non-bankruptcy law.

It's just not a generic answer.

[fltoo]

In the last few lines of (16) that you posted, it says, "nothing shall except........the debtor's debt to be discharged before filing" I paraphrased.

So, it does make it clear that before filing fees are discharged.

Thanks for finding and posting that.

[BillyRip]

Well I'm glad I brought these fees up, but I'm just as confused now as I was when I posted.

[RainMoM]

not trying to hijack this topic, but has anyone heard.. YES OR NO.. Can HOA be discharged in Chapter 7 , and if so, do you continue to pay after you file ??? Please someone let me know !!!

[Flowers]

I am confused as well. I owed a total of $4k, they filed a lien, I filed 7, and then was discharged, keeping the condo.
My lawyer told me I was no longer responsible for the debt and that the lien stays until the property is sold. Wondering if my BK discharge papers presented at the sale (whenever that is) will cause me to have to pay or not????

Oh, and YES I began paying again after I filed just not before because my lawyer told me not to.

[qsr]

I need to know the answer to this as well. I'm planning to file Chapter 7. I'm in a payment plan with their attorney's now, but I want to discharge the debt. I don't mind if I have to start paying the fees again after filing, since I intend to stay in the house. I'm wondering if they will legally be able to come after me after I file.