Rink v. Timbers Homeowners Ass'n I, Inc., Bankruptcy No. 86 B 01015 J.

• Citation: 87 BR 653
• Decision Date: 05 June 1987
• Docket Number: Bankruptcy No. 86 B 01015 J.
• Parties: In re Patricia Anne RINK, Debtor-Applicant, v. The TIMBERS HOMEOWNERS ASSOCIATION I, INC., and Karrick A. Burrows, Respondents.
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado

87 B.R. 653 (1987)

In re Patricia Anne RINK, Debtor-Applicant, v. The TIMBERS HOMEOWNERS ASSOCIATION I, INC., and Karrick A. Burrows, Respondents.

Bankruptcy No. 86 B 01015 J.

United States Bankruptcy Court, D. Colorado.

June 5, 1987.

Bryan Nix, Denver, Colo., for debtor-applicant.

Beck and Cassinis, Aurora, Colo., for respondents.

MEMORANDUM DECISION

MERLIN YOUNG, Bankruptcy Judge.

THIS MATTER is before the Court upon the motion of the Debtor/Applicant herein seeking an order restraining Respondents from pursuing their action in the Arapahoe County Court to recover post-petition condominium assessments as a personal obligation of the Debtor. Debtor alleges that the lawsuit in state court is a violation of the Automatic Stay and that she was discharged of her liability on such obligation by reason of the bankruptcy discharge issued on June 16, 1986. In response to this motion, the Timbers Homeowners Association relies upon the decision of the Honorable Roland J. Brumbaugh of this Court holding that post-petition homeowners assessments are not discharged by a bankruptcy proceeding and that the debtor remains personally liable for said assessments as long as title remains in the debtor's name. In re Horton, 87 B.R. 650 (Bankr.Colo.1987).

I agree with this decision insofar as it holds that any liability that may be incurred by a debtor for post-petition homeowners assessments is not discharged by the bankruptcy proceeding. But, I do not agree with that part of the opinion which holds that record title to the property establishes the liability of a debtor for post-petition assessments. To so hold ignores the fact that the condominium became an asset of the estate upon the commencement of the case. As such, it is held in trust for the benefit of creditors, and is burdened with the obligations flowing from that trust.

This proceeding has not been closed. The Trustee has made no effort to abandon the condominium as an asset of the estate. As long as it remains an asset, the estate is responsible for any post-petition condominium assessments which arise during administration of the estate. If these assessments are burdensome to the estate, the Trustee should abandon this asset under the provisions of section 554 of the Code. In the Horton case, the debtor remained in possession of the condominium post-petition and after the proceeding was closed. She received the benefit of its use and occupancy. In such an instance, I am of the opinion that the...