Matter of Wasp, Bankruptcy No. 91-2091-8B7.

• Citation: 137 BR 71
• Decision Date: 18 February 1992
• Docket Number: Bankruptcy No. 91-2091-8B7.
• Parties: In the Matter of Dennis James WASP and Anne Marie Wasp, Debtors.
• Court: United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida

137 B.R. 71 (1992)

In the Matter of Dennis James WASP and Anne Marie Wasp, Debtors.

Bankruptcy No. 91-2091-8B7.

United States Bankruptcy Court, M.D. Florida, Tampa Division.

February 18, 1992.

Gregory F. Boyer, Tampa, Fla., for debtor.

Charles L. Weissing, Tampa, Fla., U.S. Trustee.

Roger Hartley, Clearwater, Fla., and Gordon L. Kiester, Tampa, Fla., for movant.

ORDER GRANTING DEBTORS' AMENDED MOTION FOR CONTEMPT AND SANCTIONS FOR VIOLATION OF DISCHARGE ORDER BY WOODFIELD COMMUNITY ASSOCIATION, INC.

THOMAS E. BAYNES, Jr., Bankruptcy Judge.

THIS CAUSE came on for hearing upon Debtors' Amended Motion for Contempt and Sanctions for Violation of Discharge Order by Woodfield Community Association, Inc. The Court, having heard the argument of counsel and having reviewed the Motion, the record, and the lists of authorities submitted by counsel, finds as follows:

In 1989, Debtors purchased real property in Tarpon Springs, Florida, and executed a promissory note and mortgage securing the note. In 1990, Debtors defaulted on the note, and the mortgagee brought a foreclosure action in state court.

On February 20, 1991, Debtors filed a joint, voluntary petition for relief under Chapter 7 of the Bankruptcy Code (11 U.S.C.). Their petition reflected Debtors resided in Port Richey, Florida; and their schedules listed Woodfield Assoc. as a creditor having an unsecured claim without priority (Schedule A-3). On their Statement of Intention filed March 21, 1991, Debtors stated their intention to surrender the Tarpon Springs property. Woodfield Community Association, Inc. (the Association), a homeowners association covering the area within which the Tarpon Springs property is located, never sought relief from the automatic stay, nor did it object to Debtors' discharge or seek an exception to discharge for any unpaid Association fees.

On July 17, 1991, Debtors were granted a discharge. Despite Debtors' discharge, the Association is maintaining a state court action against Debtors for unpaid post-petition Association fees on the Tarpon Springs property.

The sole issue for consideration is whether Debtors' discharge relieved them of the personal obligation to pay post-petition Association fees. The Court holds Debtors' discharge did, indeed, relieve them of personal liability for the payment of post-petition Association fees.

Unless excepted from discharge, a debt that arose prepetition is discharged. 11 U.S.C. § 727(b). A "debt" is "liability on a claim" (11 U.S.C. § 101(12)), and a "claim" is a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured . . ." (11 U.S.C. § 101(5)(A)). Under these broad definitions, Debtors had a debt for future Association fees when they filed their bankruptcy petition. See In re Rosteck, 899 F.2d 694 (7th Cir.1990); In re Elias, 98 B.R. 332 (N.D.Ill.1989); Behrens v. Woodhaven Ass'n, Nos. 88-C-8855 and 83-B-4896, 1989 WL 47409, 1989 U.S. Dist. LEXIS 2298 (E.D.Ill. Mar. 7, 1989); Cohen v. North Park Parkside Community Ass'n (In re Cohen), 122 B.R. 755 (Bankr.S.D.Cal. 1991).

Debtors and the Association have each cited numerous cases going both ways on whether condominium or homeowners association fees assessed post-petition violate the Chapter 7 discharge order. See, e.g., In re Raymond, 129 B.R. 354 (Bankr. S.D.N.Y.1991); In re Miller, 125 B.R. 441 (Bankr.W.D.Pa.1991); In re Turner, 101 B.R. 751 (Bankr.D. Utah 1989); In re Ryan, 100 B.R. 411 (Bankr.N.D.Ill.1989); Rink v. Timbers Homeowners Ass'n, 87 B.R. 653 (Bankr.D.Colo.1987); Horton v. Beaumont Place Homeowners Ass'n (In re Horton), 87 B.R. 650 (Bankr.D.Colo. 1987); Alexandria Knolls West Condominium Homes Council of Co-Owners v. Strelsky (In re Strelsky), 46 B.R. 178 (Bankr.E.D.Va.1985). All of these cases attribute importance to factors which this Court considers irrelevant. This Court's decision turns on when Debtors' debt to the Association arose, not on whether Debtors had vacated the premises pre-petition, whether the property was the subject of a foreclosure action pre-petition, or whether Debtors were receiving any benefits of ownership post-petition.

The Association urges that Debtors' personal obligation to pay the Association fees is a series of post-petition contracts, a separate contract arising anew at the time each monthly fee assessment accrues. There is no support for this position. Debtors became contractually obligated to pay Association fees pre-petition. Any Association fees coming due after Debtors' filing of their bankruptcy petition were no more than unmatured portions of their original liability to the Association. See In re Rosteck, 85 B.R. 73 (Bankr.N.D.Ill.1988), aff'd,...