[CLBS] HOA Fees

[Randal French]

I suggest you re-open the bk case, file a motion for violation of the stay, for the period that the stay was in effect, and for violation of the discharge injunction, for the period after the stay ceased.

In my view, you have a good argument that the creditor is violating the stay 362(a)(3) at a minimum, because by not cooperating to release the funds, it is exercising control, and dominion over the funds at issue.

There was an article on the stay an stay violations with some good cites in the February 2007 Advocate.  Also see In re Johnson, 262 BR 831 (Bankr. D Idaho 2001).In re Jacobson, 03.2 IBCR 119 (Bankr., D. Idaho 2003).  Might also look at decisions in in re Gloria Urwin and in re Michael Urwin, which may be in the bk court's written decisions on its website.

-----Original Message-----
From: clbs-bounces at admws.idaho.gov [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Tyler S. Wirick
Sent: Friday, May 18, 2012 10:34 AM
To: clbs at admws.idaho.gov
Subject: [CLBS] HOA Fees


Here's the scenario: the HOA sued debtor in small claims court, secured a judgment, and had the sheriff execute on debtors bank account. The debtor files a Ch. 7 and schedules HOA as a creditor. The bankruptcy discharges and closes as a no asset bankruptcy. In the meantime, the sheriff's office fails to release the funds to the trustee, and now the sheriff refuses to release the funds to the debtor absent an order from the state court. The state court will not sign an order without a stipulation from the HOA that the funds can be released. All parties have copies of the BK paperwork, including the discharge. 

 

Any thoughts on how to proceed?

 

 

Best regards,

 

Tyler S. Wirick
Law Offices of Tyler S. Wirick
250 Northwest Blvd. Suite 107A
Coeur d'Alene, Idaho 83814
Telephone: (208) 292-4200
Fax: (208) 292-4201
 <mailto:tyler.wirick at wiricklaw.com> tyler.wirick at wiricklaw.com


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