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I am currently in a Chapter 13 Bankruptcy. My HOA filed a

I am currently in a...
I am currently in a Chapter 13 Bankruptcy. My HOA filed a lien against my property shortly after the petition was filed. They never filed a claim. My HOA filed a suit to perfect and execute the lien. I answered the lawsuit, filed a counterclaim for violating the automatic stay, and motioned the court to remove the case to the BK court.

The judge has ignored the Motion to Remove and scheduled a trial date. The BK is still active. The HOA's attorney is asking to settle for payments outside of the BK plan.

Can the judge ignore my motion? What can I do?
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Answered in 11 hours by:
11/7/2010
cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8,023
Experience: Bankruptcy professor.
Verified

HiCustomer

Was the lien based on HOA dues that accrued before or after the Bankruptcy was filed?

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Customer reply replied 7 years ago
The lien was based on pre-petition dues and was filed less than 30 days after the bankruptcy was filed. The suit is based on pre-petition and post-petition dues and fines. Thanks.
Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2,914
Experience: Better Business Bureau. 18yrs bankruptcy experience. Chicago Bar Assoc. American Bankruptcy Institute member.
Verified
Hi and thank you for your question. In the future, you can request me to answer any further questions.

If the state court judge does not want to hear you, you can file a motion in bankruptcy court for violation of the automatic stay.

Putting a lien for the pre-petition amounts would be a violation, and that claim belongs in the chapter 13. If they don't, you should file a proof of claim for the HOA and serve them notice for this.

If you fall behind on the post-petition amounts, the HOA should bring a motion to modify the automatic stay and then move to collect on the debt, lien's etc.

You can request the bankruptcy judge issue an injunctive order, and they can direct the state court judge to dismiss the case.

The other background issue is, that the HOA most likely has a superior lien against the real estate, granted at the time you purchased it, so they shouldn't really need to put another lien on the home, unless state law requires them to do so. The issue is really moot with the facts above. So bring your motion in BK court first, since state court doesn't seem to want to hear about the BK. You should hire a lawyer to represent you as well, perhaps they can make the arguments better in state court. Thanks for your question, good luck
Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2,914
Experience: Better Business Bureau. 18yrs bankruptcy experience. Chicago Bar Assoc. American Bankruptcy Institute member.
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