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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
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Experience:  Bankruptcy professor.
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My home here in FL is homesteaded. It is in an HOA. I will

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My home here in FL is homesteaded. It is in an HOA. I will be filing for personal Ch 7 in June 2010. Pro se. I will be including the mortgage on this house in my filing. Should I continue to pay my HOA dues after I've filed? Should I include my HOA in my list of creditors? What are the risks if I include them and/or don't pay the HOA dues while in BK? Can the HOA foreclose on me? Thx in advance.
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 6 years ago.
HiCustomer
Are you planning on keeping your home? Are you behind in the mortgage payments or the HOA payments?
Customer: replied 6 years ago.
No, I am not planning on keeping my home. I'm going to include the mortgage on it in my filing. I am behind on mortgage payments. Also, my HOA dues are quarterly and I am behind one quarter w/them.
Expert:  cfortunato replied 6 years ago.
While you still own the home, before the house is sold in a foreclosure, you remain responsible for any HOA dues that accrue after you file for bankruptcy protection. (This is one of the "Exceptions to Discharge", and it is listed in section 523(a)(14) of the Bankruptcy Code.)
In other words, you cannot get a discharge for the dues that become due after you file.
There are 2 reasons why you would want to include the HOA in the list of creditors:
1) It is easier to have that debt discharged, so that they would not be able to foreclose your house because of this debt.
2) Per bankruptcy rules, you have to list all of your creditors, and cannot decide to include some and not others.
Customer: replied 6 years ago.
Thanks! I just want to make sure I'm understanding...I will owe HOA dues that came/come due on 3/1/10 & 6/1/10. I plan to file my BK the first week in June. So, I am best served to include these 2 quarterly HOA payments that I missed in my BK filing; go thru the BK process; get the BK discharged & then start paying my HOA dues again so they don't forclose on the home? Am I following you correctly?
Expert:  cfortunato replied 6 years ago.
If you file after 6/1/10, you can have the dues for that date and 3/1/10 dues discharged, which means the HOA cannot attempt to collect those dues by any means, including a foreclosure (which they can't do anyway if there is not enough equity in the home).
Yes, in my opinion, it is definitely a good idea to include the missed payments in the bankruptcy petition. If you do not include both, the HOA could try to prevent the discharge of the dues, and they would then be able to collect them.
You will not be able to discharge the dues that are due after the date you file, not after the date of the discharge. So, you would be responsible for the 9/1/10 dues.

Edited by Christina Fortunato, Esq. on 5/5/2010 at 8:04 PM EST
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