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ROBERT G.
MCCOY, SBN 164218
BILL
VAUGHAN, SBN 118654
Law Office
of Robert McCoy & Associates, P.C.
204 N. San
Antonio Avenue
Ontario,
California 91762
Telephone:
(909)467-1169
Facsimile:
(909)494-7600
Attorney(s) for Defendants,
[NAME]
IN THE
SUPERIOR COURT, STATE OF CALIFORNIA
FOR THE
COUNTY OF SAN BERNARDINO, CENTRAL DISTRICT
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HOA
ASSOCIATION,
Plaintiff,
vs.
[NAME]; and DOES 1 to 10, Inclusive,
Defendants.
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Case
No.:
REQUEST FOR JUDICIAL NOTICE OF BANKRUPTCY FILED AND DISCHARGE OF DEBT
CLAIMED IN THIS CASE, As well as THE EXHIBIts attached hereto and the
FEDERAL AND STATE LAWS and case citations containED HEREIN; declaration of
bill s. vaughan in support
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COME NOW
Defendants, NAME (“Defendants”), and respectfully request the Court to take
Judicial Notice of the following:
-
Defendants’ Chapter 7 No Asset Distribution Bankruptcy Documents filed by
Defendants on DATE (the initial Petition pages of which are attached hereto
as Exhibit “A” and incorporated herein by reference).
-
Defendants’ Bankruptcy Petition Surrender Page (attached as Exhibit “B”, and
incorporated herein by reference).
-
Defendants’ Bankruptcy Discharge Order Imposing a Permanent Injunction
(attached as Exhibit “C”, and incorporated herein by reference).
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California Civil Code Section 1367(a)
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11 USC § 523
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In re Gans (1987, BC SD NY) 75 BR 474, CCH Bankr L Rptr P 71875.
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In re Harrell (1988, BC WD Tex) 94 BR 86, 18 BCD 913.
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Century 21 Balfour Real Estate v Menna (In re Menna) (1994, CA1 Me) 16 F3d 7,
30 CBC2d 1000, CCH Bankr L Rptr P 75716.
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California Civil Code Sections 1460 through 1466
-
California Civil Code Section 1366.
CONTINUED PROSECUTION OF THIS ACTION WOULD
BE A
VIOLATION OF FEDERAL BANKRUPTCY LAWS
Plaintiff
has brought this action despite knowing that Defendants filed their Chapter 7 No
Asset Distribution Bankruptcy petition with the Federal Bankruptcy Court on or
about DATE.
In that
Chapter 7 No Asset Distribution Bankruptcy the property upon which the
Plaintiff’s base their assessments claimed to be due was surrendered to the
Lienholders of Record. (See the true and correct copy of surrender page
attached as Exhibit “B”, and incorporated herein by reference). The Discharge
was granted and a PERMANENT INJUNCTION was issued (a true and correct copy of
the Discharge Order Imposing a Permanent Injunction is attached as Exhibit “C”,
and incorporated herein by reference).
Once the
property was surrendered, Defendants no longer had any “Legal, Equitable, or
Possessory Ownership Interest” in that Property.
California
Civil Code Section 1367(a) states in pertinent part: “A regular or special
assessment and any late charges, reasonable costs of collection, and interest,
as assessed in accordance with Section 1366, shall be a debt of the owner of the
separate interest at the time the assessment or other sums are levied.”
If
the assessments were levied before DATE, then they were discharged by the
Bankruptcy, and if they were levied after DATE, Defendants were no longer the
“Legal, Equitable, or Possessory Owners” of that Property, and therefore the
assessments are not the debt of the Defendants.
Plaintiff
has communicated to Defendants’ attorney that Plaintiff is not seeking those
assessments that were assessed/levied prior to the Bankruptcy filing date of
DATE. However, Plaintiff asserts that
11 USC § 523 exempts Plaintiff’s later assessments from discharge because
they were assessed/levied after the Bankruptcy and before the mortgage holder
foreclosed, changing title out of the name Defendants. In other words,
Plaintiffs claim that Defendants are liable for the assessments (assuming they
were levied after the Bankruptcy) merely because “Title” was still in the name
of Defendants until the foreclosure. That position is mistaken for two reasons.
First:
11 USC § 523
states, in
pertinent part:
“11
USC § 523. Exceptions to discharge
(a) A
discharge under
section 727,
1141,
1228(a),
1228(b), or
1328(b) of this title does not discharge an individual debtor from any
debt--
…
(16) for a
fee or assessment that becomes due and payable after the order for relief to a
membership association with respect to the debtor's interest in a
unit that has condominium ownership, in a share of a cooperative corporation,
or a lot in a homeowners association, for as long as the debtor or the
trustee has a legal, equitable, or possessory ownership interest in such unit,
such corporation, or such lot, but nothing in this paragraph shall except from
discharge the debt of a debtor for a membership association fee or assessment
for a period arising before entry of the order for relief in a pending or
subsequent bankruptcy case;” (Emphasis
added)
11 USC
Section 523 merely clarifies that assessments that are assessed after the
bankruptcy are not discharged by the Bankruptcy, and are the debt of
the person who at that time “has
a legal … ownership interest,”
or an
“equitable … ownership interest,” or a “ possessory ownership interest
in” the property. In other words, if the Debtor decides to retain the
property after Discharge, and therefore continues to use, own or possess the
property, any fees assessed or due after the Bankruptcy Discharge are his
debt and are not discharged.
“Purpose of
11 USCS § 523
is to make sure that bankruptcy laws not be used as shield to protect dishonest
debtor from his or her wrongdoing; nevertheless, exceptions to discharge should
be strictly construed against creditor and liberally in favor of debtor, burden
of proof is imposed upon party challenging dischargeability of debt, and in
fraud-based dischargeability actions, standard of proof is clear and convincing
evidence; once creditor establishes prima facie case under § 523, debtor then
has burden of going forward in defense.”
In re Gans (1987, BC SD NY) 75 BR 474, CCH Bankr L Rptr P 71875.
“Overriding purpose of bankruptcy laws is to provide debtor with
comprehensive, much needed relief from burden of his indebtedness by releasing
him from virtually all his debts and to that end,
11 USCS § 523
exceptions to discharge are narrowly construed against creditor and in favor of
debtor”.
In re Harrell (1988, BC WD Tex) 94 BR 86, 18 BCD 913.
“Exceptions to discharge under
11 USCS § 523
are narrowly construed in furtherance of Bankruptcy Code's "fresh start" policy,
and claimant must show that its claim comes squarely within exception enumerated
in § 523(a)”.
Century 21 Balfour Real Estate v Menna (In re Menna) (1994, CA1 Me) 16 F3d 7, 30
CBC2d 1000, CCH Bankr L Rptr P 75716.
Furthermore, California Civil Code Sections 1460 through 1466 make it even more
clear as to who has the burden of the assessments.
“1460.
Certain covenants, contained in grants of estates in real property, are
appurtenant to such estates, and pass with them, so as to bind the assigns of
the covenantor and to vest in the assigns of the covenantee, in the same manner
as if they had personally entered into them. Such convenants are said to run
with the land.
1461.
The only covenants which run with the land are those specified in this Title,
and those which are incidental thereto.
1462.
Every covenant contained in a grant of an estate in real property, which is made
for the direct benefit of the property, or some part of it then in existence,
runs with the land.
1463.
The last section includes covenants "of warranty," "for quiet enjoyment," or for
further assurance on the part of a grantor, and covenants for the payment of
rent, or of taxes or assessments upon the land, on the part of a grantee.
1465.
A covenant running with the land binds those only who acquire the whole estate
of the covenantor in some part of the property.
1466.
No one, merely by reason of having acquired an estate subject to a covenant
running with the land, is liable for a breach of the covenant before he acquired
the estate, or after he has parted with it or ceased to enjoy its benefits.”
(emphasis
added)
Second:
General/Regular Assessments are assessed/levied on an annual basis.
Notwithstanding the fact that homeowners are allowed to pay monthly for their
annual maintenance assessments, clearly they are assessed/levied annually at
either the same amount as the previous year, or with an increase subject to the
restrictions of California Civil Code Section 1366.
“1366.
(a) Except as provided in this section, the association shall levy regular and
special assessments sufficient to perform its obligations under the governing
documents and this title. However, annual increases in regular assessments for
any fiscal year, as
authorized by subdivision (b), shall not be imposed unless the board has
complied with subdivision (a) of Section 1365 with respect to that fiscal year,
or has obtained the approval of owners, constituting a quorum, casting a
majority of the votes at a meeting
or
election of the association conducted in accordance with Chapter 5 (commencing
with Section 7510) of Part 3 of Division 2 of Title 1 of the Corporations
Code and Section 7613 of the Corporations Code. For the purposes of
this section, "quorum" means more than 50 percent of the owners of an
association.
(b)
Notwithstanding more restrictive limitations placed on the board by the
governing documents, the board of directors may not impose a regular assessment
that is more than 20 percent greater than the regular assessment for the
association's preceding fiscal year or impose special assessments which in the
aggregate exceed 5 percent
of the
budgeted gross expenses of the association for that fiscal year without the
approval of owners, constituting a quorum, casting a majority of the votes at a
meeting or election of the association conducted in accordance with Chapter 5
(commencing with Section 7510) of Part 3 of Division 2 of Title 1 of the
Corporations Code and
Section
7613 of the Corporations Code. For the purposes of this section, quorum
means more than 50 percent of the owners of an association. This section does
not limit assessment increases necessary for emergency situations. For purposes
of this section, an emergency situation is any one of the following: . . . ..”
In order
to make these assessments levied monthly, the HOA board would have to be having
noticed monthly meetings, with a quorum to vote on them, …. Etc. Such is not
the case.
Therefore,
since the assessments are annual assessments, any assessments for the
year of 2008 were discharged by the Bankruptcy of April 21, 2008. And, any
assessments assessed/levied in 2009 were not the debt of these Defendants,
because they no longer had “a legal, equitable, or possessory ownership
interest in” the property and had “ceased to enjoy its benefits.”
Base on
the above, Defendants assert that continuation of this action is a violation of
the Federal Bankruptcy Court’s orders and Permanent Injunction, because the debt
claimed in this action has either been duly discharged by said Bankruptcy, or is
not a debt of the Defendants because of the surrender of the property in the
Bankruptcy.
Defendants therefore respectfully request this court to Honor the Permanent
Injunction issued by the Bankruptcy Court.
DATED:
____________
LAW OFFICE OF ROBERT
G. MCCOY
_________________________________
BILL VAUGHAN
Attorney for Defendants, NAME
ROBERT G.
MCCOY, SBN 164218
BILL
VAUGHAN, SBN 118654
Law Office
of Robert McCoy & Associates, P.C.
204 N. San
Antonio Avenue
Ontario,
California 91762
Telephone:
(909)467-1169
Facsimile:
(909)494-7600
Attorney(s) for Defendants,
NAMES
IN THE
SUPERIOR COURT, STATE OF CALIFORNIA
FOR THE
COUNTY OF SAN BERNARDINO, CENTRAL DISTRICT
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HOA
Plaintiff,
vs.
NAME;
and DOES 1 to 10, Inclusive,
Defendants.
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Case
No.:
DECLARATION OF ATTORNEY BILL S. VAUGHAN IN SUPPORT OF REQUEST FOR JUDICIAL
NOTICE |
I, Bill S.
Vaughan, hereby declare:
1.
I am an
Attorney at Law, licensed to practice before all state courts in the State of
California.
2.
I am a
citizen of the United States, over the age of eighteen, and if called to testify
I could and would competently testify as follows:
3.
Each and
every document and each page thereof attached as an exhibit to this REQUEST FOR
JUDICIAL NOTICE is a true and correct copy of the originals that were filed with
the Bankruptcy court by Defendants on or about _________ and issued by the
Bankruptcy Court thereafter.
I declare
under penalty of perjury, under the laws of the State of California that the
foregoing is true and correct and that this declaration was signed in the County
of San Bernardino on __________.
____________________________
Bill S.
Vaughan, Esq.
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