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Covenants and Their Effects on Foreclosure And Bankruptcy
-Jeremy O Evansjoevf-lawcom
1 Covenants2 Foreclosure3 Bankruptcy
Covenants
o Nationally CAI (Community Associations Institute) estimates that the number of communities governed by declarations grew to 309600 in 2010 from 222500 in 2000 with 62 million residentswwwcaionlineorg
o Declaration of Covenants Conditions amp Restrictionsndash Contract theory of covenants
bull The corporate documents of a homeowners association are equivalent to contracts among the members of the association Twin Lakes Village Property Assrsquon Inc v Crowley 124 Idaho 132 135857 P2d 611 614 (1993)
ndash Bylaws covered toobull Bylaws of a nonprofit corporation are binding as a contract among members First Federal Sav And Loan Assrsquon of Twin Falls v East End Mut Elec Co Ltd 112 Idaho 762 764 (1987)
45-810 Homeowners association liens
(1) Whenever a homeowners association levies an assessment against a lot for the reasonable costs incurred in the maintenance of common areas consisting of real property owned and maintained by the association the association upon complying with subsection (2) of this section shall have a lien upon the individual lot for such unpaid assessments accrued in the previous twelve (12) months
Not just a contract
o Agreement (Offer and Acceptance)o Considerationo Contractual Capacityo Defense
ndash Legalityndash Genuineness of assentndash Form
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
1 Covenants2 Foreclosure3 Bankruptcy
Covenants
o Nationally CAI (Community Associations Institute) estimates that the number of communities governed by declarations grew to 309600 in 2010 from 222500 in 2000 with 62 million residentswwwcaionlineorg
o Declaration of Covenants Conditions amp Restrictionsndash Contract theory of covenants
bull The corporate documents of a homeowners association are equivalent to contracts among the members of the association Twin Lakes Village Property Assrsquon Inc v Crowley 124 Idaho 132 135857 P2d 611 614 (1993)
ndash Bylaws covered toobull Bylaws of a nonprofit corporation are binding as a contract among members First Federal Sav And Loan Assrsquon of Twin Falls v East End Mut Elec Co Ltd 112 Idaho 762 764 (1987)
45-810 Homeowners association liens
(1) Whenever a homeowners association levies an assessment against a lot for the reasonable costs incurred in the maintenance of common areas consisting of real property owned and maintained by the association the association upon complying with subsection (2) of this section shall have a lien upon the individual lot for such unpaid assessments accrued in the previous twelve (12) months
Not just a contract
o Agreement (Offer and Acceptance)o Considerationo Contractual Capacityo Defense
ndash Legalityndash Genuineness of assentndash Form
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Covenants
o Nationally CAI (Community Associations Institute) estimates that the number of communities governed by declarations grew to 309600 in 2010 from 222500 in 2000 with 62 million residentswwwcaionlineorg
o Declaration of Covenants Conditions amp Restrictionsndash Contract theory of covenants
bull The corporate documents of a homeowners association are equivalent to contracts among the members of the association Twin Lakes Village Property Assrsquon Inc v Crowley 124 Idaho 132 135857 P2d 611 614 (1993)
ndash Bylaws covered toobull Bylaws of a nonprofit corporation are binding as a contract among members First Federal Sav And Loan Assrsquon of Twin Falls v East End Mut Elec Co Ltd 112 Idaho 762 764 (1987)
45-810 Homeowners association liens
(1) Whenever a homeowners association levies an assessment against a lot for the reasonable costs incurred in the maintenance of common areas consisting of real property owned and maintained by the association the association upon complying with subsection (2) of this section shall have a lien upon the individual lot for such unpaid assessments accrued in the previous twelve (12) months
Not just a contract
o Agreement (Offer and Acceptance)o Considerationo Contractual Capacityo Defense
ndash Legalityndash Genuineness of assentndash Form
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
o Declaration of Covenants Conditions amp Restrictionsndash Contract theory of covenants
bull The corporate documents of a homeowners association are equivalent to contracts among the members of the association Twin Lakes Village Property Assrsquon Inc v Crowley 124 Idaho 132 135857 P2d 611 614 (1993)
ndash Bylaws covered toobull Bylaws of a nonprofit corporation are binding as a contract among members First Federal Sav And Loan Assrsquon of Twin Falls v East End Mut Elec Co Ltd 112 Idaho 762 764 (1987)
45-810 Homeowners association liens
(1) Whenever a homeowners association levies an assessment against a lot for the reasonable costs incurred in the maintenance of common areas consisting of real property owned and maintained by the association the association upon complying with subsection (2) of this section shall have a lien upon the individual lot for such unpaid assessments accrued in the previous twelve (12) months
Not just a contract
o Agreement (Offer and Acceptance)o Considerationo Contractual Capacityo Defense
ndash Legalityndash Genuineness of assentndash Form
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
45-810 Homeowners association liens
(1) Whenever a homeowners association levies an assessment against a lot for the reasonable costs incurred in the maintenance of common areas consisting of real property owned and maintained by the association the association upon complying with subsection (2) of this section shall have a lien upon the individual lot for such unpaid assessments accrued in the previous twelve (12) months
Not just a contract
o Agreement (Offer and Acceptance)o Considerationo Contractual Capacityo Defense
ndash Legalityndash Genuineness of assentndash Form
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Not just a contract
o Agreement (Offer and Acceptance)o Considerationo Contractual Capacityo Defense
ndash Legalityndash Genuineness of assentndash Form
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Equitable Servitude
An equitable servitude is a term used in real property law to refer to a non-possesory interest in land allowing the holder to make use of a property or refrain from doing something on a property It is a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
(Think of an easement)
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Assessments
Aka association ldquoduesrdquo or ldquofeesrdquo
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Its a sellers real estate market in BoiseReal Estate Market Report
BY GILBERT MOHTES-CHAN TUESDAY OCTOBER 11 2011Inman Newstrade
o During the second quarter 348 percent of homes with mortgages (45278) in the Boise region were underwaterhellip
o Overall Idaho ranked ninth nationally with 23 percent of mortgages upside down
o In 2010 lenders repossessed 11289 homes (1 in every 21 units) in the Boise City-Nampa areahellip
o Last year Boise ranked 20th among top US metro areas in foreclosure rates while the state ranked eighth nationally
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Foreclosure
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
o Foreclosure is an action brought by a lending institution or some other party who has received property interest is part of the financial arrangements to purchase real property
Foreclosure
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Foreclosure
45-1505 Foreclosure of trust deed when The trustee may foreclose a trust deed by
advertisement and sale under this act if
(1) The trust deed any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated and
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Foreclosure
o Deed of Trusto [Any Assignments]o Notice of Defaulto Trusteersquos Deed
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Terminating the Rights of Other Creditors
o When property is properly foreclosed all junior lienholdersrsquo claims on the property are extinguished
Including an HOArsquos
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Foreclosure
o Foreclosure does NOT eliminate all rights to payment for associationshellip
o it eliminates claims against the propertyo Foreclosure does NOT eliminate the
homeownerrsquos duty to comply with the declarations
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Bankruptcy
o Automatic Stayo Discharge
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Effective April 1 2007
United States Code Annotated Currentness
Title 11 Bankruptcy (Refs amp Annos)
Chapter 5 Creditors the Debtor and the Estate (Refs amp Annos)
Subchapter II Debtors Duties and Benefits
sect 523 Exceptions to discharge
o (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--
o hellip
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
sect 523 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--
hellip(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtors 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
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
United States Bankruptcy CourtD Arizona
In re Monica Emilie JOHNSON DebtorNo 208-bk-13937-SSC
May 1 2009
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o That pre-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
In re Monica Emilie JOHNSON Debtor
o The Court advised the parties at the hearing that if a creditor has a valid pre-petition lien that lien ldquocarries throughrdquo the bankruptcy proceedings Dewsnup v Timm 502 US 410 112 SCt 773 (1992)
o [P]re-petition liability also would have been extinguished as a personal liability of the debtor 11 USC sect 523(a)(16)
o That counsel should advise the debtor solely of the liability for fines or assessments which has accrued after the debtor filed her bankruptcy petition hellip up to the date of the Trustees Sale Any other liability has been discharged
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Bankruptcy
o What about voluntary surrender of property
Jeremy O Evans
joevf-lawcom
Jeremy O Evans
joevf-lawcom
