The Importance for Community Associations to Record Governing Document and Timely File Objections to a Chapter 13 Plan

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A recent Bankruptcy Court decision in New Jersey highlights two important issues for community associations:


  1. Record your Governing Documents;
  2. Timely file an objection to a Chapter 13 Plan if the Association is a creditor and objects to the treatment in the debtor's Chapter 13 Plan.

In In re Johnson and Specht, Case No. 10-26741, the debtors proposed a plan wherein they surrendered property (that was part of a homeowners association) in full satisfaction of its mortgage. The debtors failed to list the homeowners association as a creditor and the Association did not receive notice of the bankruptcy. The Chapter 13 plan was later confirmed. Almost two (2) years later, the Association filed a complaint in Superior Court seeking a money judgment for unpaid assessments. Thereafter, the Association sought relief from the automatic stay in the Bankruptcy Court to "institute or resume and prosecute to conclusion," its rights in the property. Relief from the automatic stay was granted.

The debtors filed a Chapter 13 modified plan ("Modified Plan") stating title to the property shall vest in the Association upon confirmation of the Modified Plan, and that all claims secured by the debtors' property (which would include the Association's liens) would be paid by surrender of the property and foreclosure of the property interest in full satisfaction of the liens. The Association filed a timely written objection to the Modified Plan raising several objections (i.e., challenging abandonment; arguing that the debtors could not avoid payment of post-petition assessments; alleging that all of the debtors’ income was not being paid to the Modified Plan).

Relying solely on case law regarding homeowners associations (since it concluded that the New Jersey Condominium Act did not apply to a homeowners association), the Court found that homeowners' association liens are equitable liens because they are created by the covenants contained in the members' deeds, and that the Association was a secured creditor because the by-laws and the declaration of covenants ("Governing Documents") of the homeowners association were recorded. The recording of the Governing Documents is significant because if the actual lien claims were not recorded, the Association may still be considered a secured creditor if the Governing Documents were recorded. This is important in a Bankruptcy context because as a secured creditor, if the Association does not accept the Chapter 13 Plan, the debtor must provide for payment of the lien in full until the lien is discharged or there is surrender of the property securing the claim. The debtors’ argument focused on what was in the written objection and not the fact that there was an objection.

The Court disagreed and held that any timely written objection and an appearance at oral argument on that objection was sufficient to deny confirmation under the Bankruptcy Code, and sufficient to establish the secured creditor's lack of acceptance of the plan, even with no reason specified in the objection. The Court noted that while there is no Bankruptcy Code requirement that a secured creditor must take affirmative action to register its acceptance of a Chapter 13 Plan or specific method to note a lack of acceptance, case law establishes that the failure to file an objection may constitute acceptance of the Chapter 13 Plan. It further highlighted that there is also no case law that requires a secured creditor to clearly state the grounds for its objection to be considered rejection of the Chapter 13 Plan.  Fileing

Regardless of its content, the filing of a timely objection to confirmation and appearance at oral argument for confirmation is the determinative factor in whether a plan can be confirmed without a secured creditor's acceptance. While the Court noted that focusing on the content of the objection rather than the fact of objection was a compelling argument, it was not one it agreed with.

The moral of this case is timely file an objection to a Chapter 13 Plan if the Association does not agree with its treatment in the Plan, and get those Governing Documents recorded as soon as possible so that the Association can be considered a secured creditor.

Equitable Tolling and Relation Back-Objection to Discharge

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Several years back I wrote an article for the American Bankruptcy Institute on informal proofs of claim. The ABI article, which can be found here, discussed how a pleading filed before a proof of claim bar date (i.e., certification filed in support of a stay relief motion) could save the day when a formal proof of claim is filed after the bar date. In a somewhat analogous case, the United States Bankruptcy Court for the District of New Jersey recently held that an adversary complaint objecting to the discharge of a debt filed after the objection deadline would relate back to the filing date of a motion objecting to the discharge filed before the deadline. DeMaria v Peters, Adversary Proceeding No. 14-01002 (MPK).

In Peters, a creditor obtained a judgment against an individual in state court. After engaging in post-judgment discovery, the defendant filed a petition under Chapter 7 of the United States Bankruptcy Code. When the petition was filed, the Bankruptcy Court set a deadline (the “Bar Date”) to object to the dischargeability of any debt.

One week before the Bar Date, the creditor filed a motion (“Objection Motion”) in the bankruptcy case seeking to hold the judgment non-dischargeable. Several days later and again prior to the Bar Date, the creditor filed a proof of claim with the United States Bankruptcy Court. However, a formal complaint objecting to the discharge of the debt was not filed until 13 days after the Bar Date.

The debtor filed a motion to dismiss the complaint since it was filed after the Bar Date. Although there was no dispute that the complaint was filed after the Bar Date, the United States Bankruptcy Court allowed the late filed complaint to “relate back” to the date the Objection Motion was filed. In making its decision, the United States Bankruptcy Court relied upon Third Circuit law which allows a court to toll the Bar Date when the equities warrant. Finding there was no prejudice to the debtor, the Bankruptcy Court equitably tolled the Bar Date, allowed the Complaint to be filed, and held that the filing date related back to the date the Objection Motion was filed.

Creditors should not rely heavily upon this decision. Although supported by Third Circuit law, bar dates in bankruptcy cases are generally strictly enforced. However, if a Bar Date is missed and a creditor wishes to file a complaint objecting to discharge, counsel should thoroughly review all pleadings filed in the case to determine whether or not the creditor placed the debtor on notice of the claim prior to the bar date. If so, the Peters decision may save the day.

The Enforceability of Commercial Finance Leases Executed Only by the Debtor

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A common problem among finance companies seeking to enforce a commercial finance lease against a defaulted debtor/lessee is that documents are not fully executed or are otherwise disorganized.  Unfortunately, for large finance companies that have hundreds, or even thousands, of accounts, not all the “i’s” are always dotted, nor are all the “t’s” always crossed.

This problem often leads to a defaulted lessee/debtor moving to dismiss your lawsuit on the grounds that the copy of the lease the debtor was given isn’t executed by the lessor/finance company. At first glance, one might think that such a contract is not enforceable, since it was never executed. However, such an assumption would be wrong.

Under both New Jersey and Pennsylvania law, so long as the finance lease is signed by the debtor/lessee, the finance lease is enforceable against him.

Article 2A, Section 201(b) of the Uniform Commercial Code (UCC) — codified in New Jersey as  N.J. Stat. § 12A:2A-201(b) and in Pennsylvania as 13 Pa.C.S. § 2A201 — states that “a lease contract is not enforceable by way of action or defense unless there is a writing, signed by the party against whom enforcement is sought or by that party's authorized agent...”

In other words, even if the lessor/finance company didn’t sign the Lease, the Debtor that did sign it still can’t escape liability.

Of course, an ounce of prevention is worth a pound of medicine, so making sure your documents for each account are in order at the outset of the transaction will avoid the additional cost of litigating the issue on a motion to dismiss. However, for those occasions when a finance company wants to initiate a lawsuit against a debtor and discovers a glaring problem with their documents, such as a signature missing from the lease, a good lawyer can find a legal remedy to such a problem, one example of which is explained above.

It is imperative that creditors speak with sound creditor’s rights counsel to avoid having a case against a debtor dismissed for such technicalities. Stark & Stark’s Creditor’s Rights Group can help. Our attorneys regularly represent banks and creditors in New Jersey and Pennsylvania on a variety of issues, including lawsuits against commercial equipment lessees.

Equitable Mootness Doctrine Should Be Rarely Applied to Preserve Appellant's Rights

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Equitable mootness is a doctrine that allows a court to avoid hearing the merits of a bankruptcy appeal because implementing the relief requested by the appellant would produce a perverse outcome to the bankruptcy plan and/or cause significant injury to third parties. The Third Circuit Court of Appeals recently revisited the application of the doctrine of equitable mootness in In Re SemCrude, L.P. and made it clear that dismissing an appeal as equitably moot should be used sparingly, only where there is sufficient justification to override the statutory appellate rights of the party seeking review.


In SemCrude, the debtors, a midstream oil and gas business, were involved in the gathering, transportation, storage and marketing of crude oil and petroleum products. The debtors filed for Chapter 11 relief with the Bankruptcy Court in July of 2008. Appellants, like many other creditors, were producers that supplied oil and gas to the debtors on credit prior to their Chapter 11 filing. The producers asserted numerous claims against the debtors for the distribution from the proceeds of oil and gas ahead of other creditors. The debtors filed a motion to establish global procedures to administer the producers’ claims. The appellants disagreed about the claims procedure and objected to its use. The appellants argued that they were entitled to prosecute an adversary proceeding on their claims. The appellants filed the suit, but the bankruptcy court stayed the adversary proceeding and allowed the debtors to proceed with their approved resolution procedures. The court noted that the question of whether the appellants will be bound by the resolution procedures could be litigated at a later date by the appellants.


The Debtors subsequently resolved the claims with the producers (other than the appellants) and filed a plan of reorganization. The appellants’ claims were incorporated into the plan, however, they reserved their right to litigate the pending adversary proceeding and objected to the plan. The bankruptcy court overruled their obligations and entered an order confirming the plan.


The appellants appealed to the District Court, asserting that the reorganization plan could not validly discharge their claims without affording them the procedural protections of an adversary proceeding. However, the appellants did not request a stay pending appeal. The plan went into effect shortly after confirmation. Several corporate restructuring transactions, repayment of certain payment obligations and the issuance of securities to those parties receiving equity distribution were implemented following confirmation.


The debtors sought to dismiss the appeal as equitably moot because granting the requested relief would require unraveling of the plan of reorganization and harm third parties. The District Court agreed with the Debtors’ argument and dismissed the appeal under the doctrine of equitable mootness. The District Court reasoned that the plan was substantially consummated. Additionally, granting the appellant’s relief would undermine the reorganization plan and harm third parties. The Third Circuit reversed the District Court and remanded the matter because the record did not support the latter two findings.


The Third Circuit analyzed five conjunctive factors in reaching their decision: (1) whether the reorganization plan has been substantially consummated; (2) whether a stay has been obtained; (3) whether the relief requested would affect the rights of parties not before the court; (4) whether the relief requested would affect the success of the plan; and (5) the public policy of affording finality to bankruptcy judgment. The burden to prove these factors rests with the party seeking dismissal.


The Court reasoned that there was not sufficient evidence of record to support a finding that the plan could not be successful if the appellants were allowed to proceed. Likewise, there was not sufficient evidence to support that third parties would be harmed if the appellants were allowed to proceed. Finally, the court did not find that the public policy supported dismissing the appeal. The Court found that it would be particularly inequitable to allow the debtors to use the doctrine of equitable mootness as a sword against the appellants. Notably, the appellants had repeatedly advanced their contention that they are entitled to the adversary proceeding since the inception of the Chapter 11 filing.


The lesson to be learned from this case is that Courts are not inclined to dismiss an appeal based on the doctrine of equitable mootness, especially when the doctrine is used as a sword by a debtor, instead of a shield to protect the interests of the bankruptcy court and third parties.


Consider All Options Before Your Business Bankruptcy Filing

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In the September edition of Mid-Jersey Business Magazine, Timothy Duggan, Chair of the firm's Bankruptcy & Creditor's Rights group, authored an article that  outlined what businesses considering bankruptcy protection need to consider.  

Back From The Brink discusses the various types of bankruptcy filings available as well as how businesses experiencing financial difficulties can work with their lenders.

You can read the article here.

Pre-Petition Collection Efforts in a Bankruptcy Filing

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Sometimes trying to untangle pre-petition collection efforts as a result of a bankruptcy filing can be tricky.  In a recent case, the New Jersey District Court (In re Paul, Civil Case No. 12-cv-07855, Bank. Case No. 11-31653 on July 9, 2013), made those lines a little bit more clear.

A judgment was obtained by a creditor and thereafter, a writ of execution to levy on the debtor's bank account was issued.   The Sheriff's Office levied on funds in the debtor's account and a hold was placed on the debtor's funds in that account.  The creditor then filed a motion for turnover which was granted and an order entered shortly thereafter.

Prior to the Sheriff's office executing on the bank account pursuant to the turnover order, the debtors filed a Chapter 7 bankruptcy petition. The debtors received a discharge from bankruptcy without the levied funds being considered part of the bankruptcy estate.  The bankruptcy case was then closed by final decree.

Some months after the discharge was entered, the debtors filed a motion to re-open their bankruptcy case to seek return of the funds on the basis that the actual turnover of the funds occurred post-petition and thus were property of the debtors that should have been included in the their bankruptcy estate.  The Bankruptcy Court denied the defendants motion and appeal followed by the debtors and the District Court affirmed the Bankruptcy Court's decision.

The debtors argued that the turnover order did not transfer title to the levied funds and thus were subject to an avoidable lien on the petition date because the turnover order was not a self-executing transfer, meaning another step still must be taken to transfer the money out of the account.  They argued that the money should have been part of the bankruptcy estate

The District Court held that the entry of the turnover order divested the debtors interest in the funds, there was no lien or levy on the funds as of the petition date and therefore the debtors no longer had legal or equitable interest in the funds. 

Debt Collectors, Get Those Procedures In Place

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The Southern District of New York just issued an interesting ruling in Rafael Lee v. Kucker & Bruh, LLP on August 2, 2013 when it considered a violation of the Fair Debt Collections Practices Act.  The action was brought by an 82-year old man who was residing in a rent controlled apartment in New York City.  Under certain New York State law (Senior Citizen Rent Increase Exemption "SCRIE") for lower income residents, he was only responsible for a portion of the rent while the landlord received a tax abatement equal to the balance.  Under this law, landlords are not permitted to collect any rent or other charges (including fuel charges) from a tenant beyond the amount permitted under the law.

In this case, a private social security agency that provided assistance to elderly tenants paid Mr. Lee's portion of the rent to the landlord.  This was all spelled out in Mr. Lee's SCRIE order.  Notwithstanding this payment, the landlord forwarded to his attorney documents which showed that Mr. Lee was delinquent in his monthly payments. Based upon this information, the attorney sent out the appropriate demand/delinquent notice to Mr. Lee demanding payment. Mr. Lee then retained counsel who disputed the debt and requested validation, which the attorney's office provided without seeking additional information from the landlord and his agents (the property management company).  

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Bankruptcy Considerations for Community Associations

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What can our association do if one of the unit owners files for Bankruptcy?

The very first thing an association should do is stop all collection efforts.  This means no more notices to the debtor.  This is very importation because of the imposition of the automatic stay which prevents any collection efforts against the debtor.  This also includes withholding any amenity rights (i.e. pool passes, parking or towing the debtor's vehicle) because of past due assessments.  Assessments due after the date of the bankruptcy filing must continue if the debtor is to remain in the unit, but the Association must be careful not to collect or enforce any sanctions against the debtor because of pre-petition (amounts owed prior to the bankruptcy filing).

The association should also split the accounting into pre and post-petition.  This will show what is owed prior to the bankruptcy filing and what is done after the date of filing.  This is significant because what the debtor is seeking by filing a bankruptcy is a discharge for all debts owed prior to the bankruptcy filing. 

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Court Protects Lender in Mortgage Refinance

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 In a reported decision issued July 3, 2013, the Appellate Division of the New Jersey Superior Court held that the holder of a first mortgage which refinances its mortgage without obtaining a discharge or subordination from a subordinate mortgagee of which it was aware may still maintain its priority position, at least in part.  In Sovereign Bank v. Gillis, the Appellate Division reversed the trial court which had held that the holder of a mortgage securing a home equity line of credit was in first position following the refinance.

In May 1998, Washington Mutual Bank (“WaMu”) lent Joseph and Eulalia Gillis (the “Gillises”) $650,000.00 to purchase a residential property in Warren Township. The loan was secured by a first mortgage.  In March 2003, the Gillises obtained a home equity line of credit from Independence Community Bank (“Independence”) for $500,000.00 which was secured by a second mortgage.  In January 2005, the Gillises borrowed $1.19 million from WaMu.  The proceeds were used to pay off the existing WaMu loan ($482,023.67) and the Independence Line of Credit ($499,921.93).  The Independence Line of Credit was not closed and the mortgage in favor of Independence was not discharged.  The Gillises continued to borrow funds under the Independence Line of Credit.  Ultimately, the Gillises defaulted on both obligations.  The WaMu Mortgage was assigned to Deutsche Bank National Trust Company (“Deutsche Bank”).  The Independence Mortgage was assigned to Sovereign Bank.

Deutsche Bank and Sovereign Bank both filed foreclosure actions.  The trial court held that the Independence Mortgage was in first position.  The court held that Deutsche Bank was not entitled to invoke the doctrine of equitable subrogation because it was aware of the Independence Mortgage at the time of the refinance.  Under the doctrine of equitable subrogation, a lender providing funds to satisfy a prior obligation may be able to assert the priority position of that obligation.

The Appellate Division reversed, holding that Deutsche Bank was entitled to priority pursuant to the principles of modification and replacement of mortgage.  That doctrine is set forth in the Restatement (Third) of Property – Mortgages, Section 7.6, comment (e) (1997), which states that “where a mortgage loan is refinanced by the same lender, a mortgage securing the new loan may be given the priority of the original mortgage under the principles of replacement and modification of mortgages.”  The Appellate Division discussed the doctrine of equitable subrogation whereby a new lender can assert the priority position of a lender whose obligation was satisfied through the funds it advanced so that the holder of the intervening encumbrance is not unjustly enriched at the expense of the new mortgagee.  The court determined that equitable subrogation did not apply because the same lender was the mortgagee under the original and refinanced loans.

The Appellate Division held that Deutsche Bank was entitled to invoke the principles of modification and replacement of mortgages to maintain its first position.  The court held that to allow Sovereign to assert a first priority position would constitute an undeserved windfall.  The issue left undecided was the extent of priority to be granted to Deutsche Bank.  The court offered three options: (1) $650,000.00, the original amount of the first WaMu loan; (2) $534,000.00, the balance due at the time of the Independence loan in 2003: or (3) $482,000.00, the amount outstanding at the time of the refinance in 2005.  The Appellate Division remanded the matter to the trial court to determine which amount was appropriate.

When refinancing a first mortgage, the lender should make sure that all existing liens are either discharged or subordinated.  While the doctrine of equitable subrogation and the principles of modification and replacement of mortgages may protect the lender if a lien is not discharged, a prudent lender should make sure that if a home equity line of credit is being paid off the line is closed and the mortgage is discharged.  If the line of credit is not being paid off, the lender should obtain and record a subordination agreement.  The same is true for any judgments of record.  If judgments are being satisfied, they should be discharged of record.  If a judgment is not being satisfied, the lender should obtain and record a subordination of the judgment.     

The Importance of the Declaration of Covenants and Restrictions for Community Associations Filing Liens

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Community associations should always record their respective Governing Documents and this becomes of particular importance if the documents provide for the creation of a lien upon failure to pay assessments.  This is never more true than as reflected in a recent Bankruptcy Court opinion in In re Nacinovich, Adv. Case No. 13-1074, decided by the Honorable Michael B. Kaplan, U.S.B.J., May 31, 2013, in which the Court considered allegations that a homeowners association remittance of a statement to a debtor which included sums due beyond the amounts due in its pre-petition lien claim was a violation of the automatic stay.  The Bankruptcy Court postured that if the association's lien claim is limited to only the amount included in the recorded lien, then the additional fees included in the billing statement are unsecured and efforts to collection them constitutes a violation of the automatic stay.  However, if the association holds a lien against the property for the full amount included in the billing statement, then the full amount remains a valid in rem claim and therefore the billing statement in not a violation of the automatic stay because the property was abandoned by the Chapter 7 Trustee. The Court ultimately concluded that the associations' billing statement that reflected an amount greater than in the recorded lien was not an improper attempt to collect a debt in violation of the automatic stay.

Judge Kaplan reasoned that the language in the associations recorded Declaration of Covenants and Restrictions which provides that non-payment of assessments, together with interest and cost of collection, constitutes a continuing lien on the property.  The Court stressed the importance of the Declaration having been recorded and that by virtue of that it established a fully enforceable lien against the property for the full amount of unpaid assessments and fees.  The Court also noted that certain community associations that are not subject to the Condominium Act (such as HOAs) are not required to record liens so long as the declaration of covenants governing the property has been properly recorded.

While there are many other reasons a community association should record their Governing Documents, protection from discharge violations while pursuing lien claims is a critical reason and a highly worthwhile benefit of recording. 

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