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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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My attorney has filed a chapter 13 proceeding for me. I owe

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My attorney has filed a chapter 13 proceeding for me. I owe many dreditors but they are all unsecured so Im not really concerned about them. The reason for the filing was for the automatic stay against any actions in lower courts. I owe HOA fees in excess of $15000. and the case went through civil court really fast because of some FL state provision allowing expedited cases because so many HOA are failing. They were granted summary judgment and were allowed to forclose on my condo and schedule a sale just before the deed was issued they bought the property for $10 we filed the chapter 13 put civil court on notice and they closed file. The trustee has determined an amount of $688 a month neeeds to be paid. I have a mortgage thats in foreclosure as well but still stuck in court system. My question is this if I pay the 688 monthly how long will that keep me in my home for? Im not concerned about Bank because they have done nothing so far but serve a complaint and are a year or two away from any judgments. My problem is with the HOA they are pressing hard and my attorney has informed I will not be protected under the Bankruptcy laws from them. He says I must agree to a deal and the money from the trustee will not be enough. My monthly hoa fees are $310. Can they get preferential treatment?
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 2 years ago.

Hi JACustomer,

Are you currently paying your mortgage?

Customer: replied 2 years ago.
No I have not in two years
Expert:  cfortunato replied 2 years ago.
You are allowed a "housing expense", which can be used to pay your HOA dues.
Customer: replied 2 years ago.

If I pay amount required by trustee how long can I stay in my condo and will that also stop the bank as well? How much will go to HOA and can they force me to give them anymore?

Expert:  cfortunato replied 2 years ago.

If you pay the amount the trustee asked for, part of that amount will be given to the HOA for dues that you owed from before your Bankruptcy was filed. As long as you continue to pay the Chapter 13 plan payment until the end of your Bankruptcy period, at the end of that period, you will receive a discharge of the balance of unsecured debts - including what is still owed to the HOA for dues that accrued from before your Bankruptcy was filed.

As long as your Bankruptcy is in progress, there is nothing your HOA can do to try to collect the past-due dues from before your Bankruptcy was filed, but they can attempt to collect any dues that you owe from after your Bankrutpcy was filed.

Your HOA must take what they are given from the Bankrutpcy trustee - they cannot force you to pay them anymore for the dues that you owed from before your Bankruptcy was filed, but they can force you to pay your dues going forward - until your house finally sells at a foreclosure sale.

 

I think this is what you wanted to know. If not, please let me know.
Thank you.

Expert:  cfortunato replied 2 years ago.
If you pay the amount the trustee asked for, part of that amount will be given to the HOA for dues that you owed from before your Bankruptcy was filed. As long as you continue to pay the Chapter 13 plan payment until the end of your Bankruptcy period, at the end of that period, you will receive a discharge of the balance of unsecured debts - including what is still owed to the HOA for dues that accrued from before your Bankruptcy was filed.
As long as your Bankruptcy is in progress, there is nothing your HOA can do to try to collect the past-due dues from before your Bankruptcy was filed, but they can attempt to collect any dues that you owe from after your Bankrutpcy was filed.
Your HOA must take what they are given from the Bankruptcy trustee - they cannot force you to pay them anymore for the dues that you owed from before your Bankruptcy was filed, but they can force you to pay your dues going forward - until your house finally sells at a foreclosure sale.

I think this is what you wanted to know. If not, please let me know.
Thank you.
Customer: replied 2 years ago.
SO any current arrears after bankruptcy is due will still be due on top of what I pay trustee and they can start a new proceeding for the new arrears and at that point I would have no protection underbankruptcy law?
Expert:  cfortunato replied 2 years ago.
That is correct.
Customer: replied 2 years ago.
I was told that the HOA have a lien against property same as a bank mortgage and in state of FL they must be 1.5% of mortgage towards any arrears and its a superior lien. Is that true? Was also told that because its like a mortgage the HOA does not have to agree to proposed amount they are given by court and can demmand full payment from me or continue with foreclosure all this will do is stall the inevitable is that true?
Customer: replied 2 years ago.
What I mean is I owe 24K in back mortgage and 15K in HOA fees so can the court order the bank and hoa to take whatever the trustee decides is fair than all arrears before bankruptcy would be discharged and I would owe current arrears filed before bankruptcy ?
Expert:  cfortunato replied 2 years ago.

Yes. However, if the HOA has placed a lien on your house, your attorney has to file a 522(f) lien avoidance motion to have the lien removed.

 

Customer: replied 2 years ago.
Is that the same for the mortgage will he neeed to file a 522(f) motion to have lien removed. So during the time I am paying the creditors including the bank and hoa and my mortgage continues to go in arrears does the bank and hoa have to start brand new foreclosure cases or are the current cases just held in abeyance and they can make motion to reopen and pick up where they left off?
Expert:  cfortunato replied 2 years ago.

You said, "I am paying the creditors including the bank...". Then you asked about the bank starting a new foreclosure case. Are these 2 different banks?

Customer: replied 2 years ago.
no just a typo one bank one mortgage and hoa only secured creditors
Expert:  cfortunato replied 2 years ago.

Has the bank filed a motion for relief from the automatic stay?

 

Customer: replied 2 years ago.
no neither the bank or the HOA are the vactur of stay motion normally granted for mortgages and hoa fees?
Expert:  cfortunato replied 2 years ago.

If you are not paying your mortgage, the mortgage company can continue with their foreclosure proceedings after filing a motion for relief from the automatic stay. If they file the motion, they can proceed with the foreclosure as if your Bankruptcy had not been filed - they do not have to start a new proceeding.

The HOA cannot commence foreclosure proceedings without first filing the same motion.

 

 

Customer: replied 2 years ago.
ok got it one last question then. So can a whole plan be put forward where i pay trustee what he wants(is that amount final no negotiations?) Can I then wipe out past debt and pay future payments at a reduced amount or modification and is that something the court can order or must the bank and HOA consent?
Expert:  cfortunato replied 2 years ago.
The Bankruptcy court cannot order the bank or the HOA to work with you to reduce or modify your payments.
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
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