Can I stop paying my HOA fees?

[bob1esq]

Here is the link to the Motion for Summary Judgment Motion that was to be filed in the adversary proceeding. We never needed to file it though because after we served it upon the HOA's attorneys, they quickly settled. I hope another attorney will use the content of this motion and apply it to their client's situation and let us know the results.

[bob1esq]

I did prepare the summary judgment motion in an adversary proceeding. The forum will not let me post the link, but you can go to my web page at lemonattorney.net/sumjment.htm

[bob1esq]

If you still have trouble fiinding it you can go to lemonattorney.net and then on the home page there is a link about 1/2 way down the page that says: "SAMPLE SUMMARY JUDGMENT MOTION"

[jst4f]

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

I agree. However, the mere indication of "surrender" on a bankruptcy statement of intentions, does not suddenly make the debtor no longer the owner. So much so, that Florida added a Statute making creditor responsible for 12 months (or 1% of the balance of the mortgage) of HOA/CA dues/fees/assessments that occur after bankruptcy and before the creditor takes legal title. But only 12 months.

You cannot force a creditor to exercise its rights under the security instrument or the UCC so, likewise, a mere "indication" that you want to "surrender" a property, doesn't magically make it belong to the creditor. There is nothing in 11 USC 521 (a)(2) which reads "he loses all rights to ownership of the property". It only indicates that the debtor much perform the action. Most Circuits haven't found that there is anything to do in a surrender except, I would suppose, not fight relief from stay actions or other non-bankruptcy court actions.

So much so that the debtor's property rights are uneffected by what you just wrote, 11 USC 521 (a)(2)(C) goes on to say that... "nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor's or the trustee's rights with regard to such property under this title".

Well, they should have fixed 11 USC 521(a)(2)(C) then. However, that would go against all principles of equitable title.

I don't believe Florida would have written the new Statute if it were not for the shortcomings in the plain and unambiguous language in Title 11. The real problem with bankruptcy law, is that it must coexist with underlying State non-bankruptcy law. Unfortunately, there's nothing in State non-bankruptcy law which allows a mere statement of "surrender" as losing title.

[justbroke]

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

Very good question. So, if the Trustee decides to step into your shoes and collect rents, then the Trustee (actually your Bankruptcy Estate) is responsible for paying the HOA fees! If the Trustee doesn't, you can later re-open the bankruptcy case and sue the Trustee!

Yes, Trustees have been sued and lost before! There was even one Trustee that was stealing.

[despritfreya]

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

Yes, this is a very good question. 523(a)(16) holds one liable "for so long as the debtor OR the trustee has a legal, equitable, or possessory ownership interest".

I would think that if the Trustee is not abandoning the asset and you get sued because you have "legal" title, you could file a 3rd party complaint against the Trustee. I think, since the Trustee is collecting rents, a demand should be made upon him/her to pay the post petition HOA but I do not know how far you will get with such a demand.

Des.

[bob1esq]

Or, how can you stop the trustee from collecting rents?

Does the right to collect HOA fees from me for my rental properties, post BK7 filing, change if the trustee is keeping the rents. While I may still have my name on the title, I am not receiving any benefits from the HOA?

The code makes it clear that the trustee has the obligation to make sure the HOA fees are satisfied. It is also his obligation to pay the mortgage as well as any other lien on the property as payments come due. If you just want to close your bankruptcy, you could amend your petition and "surrender" the property to the mortgage lender. I am assuming that there is not enough equity in your property, otherwise the trustee would have put it up for sale by now.

What you currently have is a situation where you no longer own the property, the trustee does. He is the "legal" owner. Just as I have been saying all along, just because your name is on title, does not make you the "legal" owner. As I argued in my summary judgment motion, once a property is surrendered, in a title state such as California, the bank becomes the "legal" owner. If the trustee was not collecting the rents, then the bank would be entitled to collect the rents, not you, if you surrendered. There seems to be a lot of confusion about what is meant by "surrender". As I argued in my brief and as is supported by California law, by giving up possession and giving sufficient notice to everyone who may have an interest in that property of your release of all your rights to the property, you effectively surrender legal ownership. Interestingly, under California law, one need not file bankruptcy to effectively surrender ownership to a parcel of property; at least the type of ownership that would continue to make one responsible for HOA dues. Here is the link to my summary judgment motion:

lemonattorney.net/sumjment

[Dorsey]

[deleted by Doresy]

[bob1esq]

Very good question. So, if the Trustee decides to step into your shoes and collect rents, then the Trustee (actually your Bankruptcy Estate) is responsible for paying the HOA fees! If the Trustee doesn't, you can later re-open the bankruptcy case and sue the Trustee!

Yes, Trustees have been sued and lost before! There was even one Trustee that was stealing.

The trustees are all about confusion and intimidation. That is the policy that comes directly from the US trustee's office. They really do not want to litigate anything, and are counting on the fact that debtors usually do not have the money it takes to fight them. But when the debtor does, they are pretty easy to beat. Most of them have little or no civil litigation experience, and more often than not, when there is a legal dispute, it is the trustee who is wrong, not the debtor's attorney. The point being, that just because the trustee says something is so, do not be afraid to take it to the bankruptcy judge. I would say that about 90% of the time the trustee has gone against me on a legal issue, the judge has decided in my favor and against the trustee.