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Can You Remove A Homeowners Association Lien from Your Home?


Many homeowners in California are facing growing problems in trying to not only keep up with their mortgage but their monthly homeowners association payments.  In California, a homeowners association can exercise the right to place a lien on your home for past due HOA fees. A homeowners association can eventually foreclose on a property for past due homeowners association dues.

Are there any options available if your association has placed a lien on your home and is threatening to sell  your home?

A homeowners association lien may be avoidable and removable as part of a Chapter 13 bankruptcy filing. If you can show that the homeowners association lien has no equity to attach to in your home then you may be able to remove the HOA lien in bankruptcy. An example of this occurs where your home is worth $350,000 and you have a 1st mortgage loan for $400,000. If you have a HOA lien for any amount there would be no equity available for the lien to attach to on your property. In a Chapter 13 bankruptcy you can avoid the lien and treat the pre-petition HOA lien as an unsecured creditor in your Chapter 13 bankruptcy.

Under Section 506(d) of the bankruptcy code an HOA lien could be treated as an avoidable pre-petition statutorily lien. This does not mean that you would eliminate your responsibility for paying post-petition HOA fees that become due after the filing of your bankruptcy case. The lien stripping would avoid and treat as unsecured debt only the pre-petition lien, but would not eliminate your monthly HOA fees that become due after filing.

Whether a lien from an HOA is removable in a Chapter 13 bankruptcy also depends on state law. There may be states where a lien from a homeowners association is given first priority over a mortgage loan. In these cases the homeowners association may have some equity to attach to and may not be treated as an unsecured debt.  The overall priority of the HOA lien can affect whether the lien can be avoided under Section 506(d) of the bankruptcy code. In California, an HOA lien is  give priority based on when the lien on the property is recorded. In most instances this will mean that it does not have priority over most mortgages. In addition some homeowners associations have tried to argue that the covenants and restrictions are actually a type of executory contract that is not subject to being removed. These arguments have generally failed for the most part.

Eliminating your pre-petition HOA lien can be a powerful tool in a Chapter 13 bankruptcy that can help you avoid foreclosure. If you are facing a potential foreclosure from a homeowners association, talk to an experienced about eliminating the lien and protecting your home in a Chapter 13 bankruptcy.

Comments

Carole, I have done many HOA lien strips without encountering any resistance from the courts in Southern California. If the HOA has recorded a lien than we may be able to avoid the lien under 506(d) of the bankruptcy code. Keep in mind that it does not remove the ongoing responsibility to pay the monthly dues owed to the HOA for ongoing maintenance. It will remove the pre-existing HOA lien that has been recorded against your property but not the post-petition fees that you owe on a monthly basis. You would still be responsible for HOA fees that become due post petition.
I am hoping you can help to clarify this issue which is critical in my ability to keep my property. I have consulted with a lawyer in Orange County, CA to file a Chapter 13 bankruptcy. His position is that an HOA lien "runs with the land" in California. As such, it cannot simply be removed due to a lack of equity, just like a tax lien cannot.
I am finding articles on the internet that support both positions. Have you had any recent experience in California stripping an HOA lien due to lack of equity?
Thank you for your feedback.
Carole S
You can reach me at 951-241-8070
Dear Ms.Duenas:

Thank you for the information. I would like to speak with you regarding HOA liens and HOA's foreclosing on a property.

Please let me know if you have a phone number where I can call you.

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