Summary:
The Debtor filed Chapter 13 and his plan was confirmed, with property of the estate re-vesting with the Debtor at that point. Subsequently, the Debtor fell into default with his homeowner’s dues. The Homeowner’s Association (“HOA”) file a Motion for Relief from the Stay seeking both relief from the stay and attorney’s fees. The Debtor admitted the default, but contested the attorneys’ fees as being unnecessary.
Relying on In re Jones, 339 B.R. 360, 365 (Bankr. E.D.N.C. 2006), the court held that the property had re-vested with the debtor at confirmation and no relief from stay was necessary for post-petition assessments, See In re Schechter, 2012 Bankr. LEXIS 3796, at *17 (Bankr. E.D. Va. Aug. 16, 2012) (citing Rosenfeld v. River Place East Housing Corp. (In re Rosenfeld), 23 F.3d 833, 836-37 (4th Cir. 1994), cert. denied, 513 U.S. 874, 115 S. Ct. 200, 130 L. Ed. 2d 131 (1994), reh’g denied, 513 U.S. 1035, 115 S. Ct. 622, 130 L. Ed. 2d 530 (1994)). Accordingly, relief from the stay was not required and attorneys’ fees sought in connection with such were unnecessary and denied.
Commentary:
As property of the estate does not re-vest with the Debtor at confirmation in either the M.D.N.C. or W.D.N.C., a Motion for Relief would have been necessary in either of those districts and, resultingly, attorneys’ fees could be necessary.
In the E.D.N.C., however, this provides Debtors facing a post-petition default on HOA dues the opportunity have the MFRS denied as moot, then dismissing their case and refiling. This would avoid both any §109(g)(2) issues and attorneys' fees to the HOA. (The Debtors would, however, either need a Motion to Extend Stay in the second case or to propose a plan that did not revest property.)
For a copy of the opinion, please see:
Eldridge- Attorneys fees for Homeowner’s Association on Motion for Relief.pdf
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