In Re Lamb

171 B.R. 52, 1994 Bankr. LEXIS 1191, 25 Bankr. Ct. Dec. (CRR) 1584, 1994 WL 425164
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedAugust 11, 1994
Docket19-50201
StatusPublished
Cited by9 cases

This text of 171 B.R. 52 (In Re Lamb) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Lamb, 171 B.R. 52, 1994 Bankr. LEXIS 1191, 25 Bankr. Ct. Dec. (CRR) 1584, 1994 WL 425164 (Ohio 1994).

Opinion

MEMORANDUM OF OPINION AND DECISION

WILLIAM J. O’NEILL, Bankruptcy Judge.

Before the Court is Debtor, George R. Lamb’s Motion for an order directing Cashel-mara Condominium Association (Cashelmara) to show cause why they should not be held in contempt of his discharge order to which Cashelmara filed a Brief and Supplemental Brief in opposition. A January 25, 1994 order granted Debtor’s motion to reopen his Chapter 7 case to permit consideration of the contempt motion. This is a core proceeding within the jurisdiction of the Court. 28 U.S.C. §§ 1334, 157(a), (b)(2)(I), (0), General Order No. 84 entered on July 16,1984 by the United States District Court for the Northern District of Ohio. This matter was submitted on stipulations and briefs.

Stipulated facts are as follows:—

“1. From June 5, 1991 until August 24, 1992, George Lamb and/or the bankruptcy estate of George Lamb was the owner of record of Unit 83, Cashelmara Condominium, which unit had a street address of 23026 Roberts Run, Bay Village, Ohio.

2. On February 8, 1992, George Lamb filed a petition in bankruptcy in the United States Bankruptcy Court for the Northern District of Ohio. A copy of the notice of the' filing thereof is attached as Exhibit A

3. On or about March 24, 1992, an order was entered by the Bankruptcy Court abandoning Unit 83 to the debtor. A copy of the order is attached as Exhibit B.

4. On about June 29, 1992, an order of discharge was entered in George Lamb’s bankruptcy. A copy of the order is attached as Exhibit C.”

This order, consistent with Section 524(a)(2) of the Bankruptcy Code, enjoins creditors whose debts are discharged from “commencing, continuing or employing any action, process or act to collect, recover or offset any such debt as a personal liability of the debtor ...”

“5. On August 24, 1992, Unit 83 was sold at Sheriffs sale. The sale was thereafter confirmed and title transferred out of the name of George Lamb.

6. During the period March 24, 1992 to August 24, 1992, maintenance charges and regular and special assessments by the Cash-elmara Condominium Unit Homeowner’s Association relating to Unit 83 were made as set forth in Exhibit D.”

Exhibit D indicates total charges of $3,130.43 for this period plus interest from September 1, 1992.

“7. Cashelmara has not been paid, and has not recovered from any source, the charges identified in Exhibit D.

8. Excerpts from the Declarations and By-Laws of Cashelmara Condominium Unit Homeowner’s Association are attached as *54 Exhibit E. These Declarations and ByLaws were in effect at all times relevant and were filed and of record with the Recorder of Cuyahoga County at all times relevant.”

These declarations and by-laws provide for the obligation of owners of condominium units to pay their proportionate share of common expenses and assessments.

“9. There is pending in the Court of Common Pleas of Cuyahoga County, Ohio, an action known as Virginia First Savings Bank, F.S.B. v. George R. Lamb, et al., being case number 203373 therein, in which Cashel-mara Condominiums and defendant George Lamb are defendants, and in which Cashel-mara Condominiums has asserted a Cross-Claim against George Lamb for the charges identified in Stipulation 6 herein, together with the fees and expenses incurred in collecting them. Said Cross-Claim has been stayed by consent pending determination in this Court as to whether the claims alleged by Cashelmara Condominiums for said charges were discharged herein.”

Debtor requests an order holding Cashel-mara in contempt for violating his discharge by filing a collection action for certain post-petition condominium charges. Specifically, Cashelmara attempts to collect condominium maintenance charges, assessments, plus fees and expenses related to Debtor’s post-petition, post-abandonment ownership of Unit 83. Debtor asserts his obligation for these charges is discharged pre-petition debt.

A discharge in bankruptcy absolves a debtor from personal liability on pre-petition debt, except as provided under Section 523. II U.S.C. §§ 727(b), 523. “Debt” under the Bankruptcy Code is defined as “liability on a claim.” 11 U.S.C. § 101(12). A “claim” is defined as 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). The terms “debt” and “claim” are coextensive and are intended to adopt the broadest definition of a claim. Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). Therefore, absent an applicable exception, any right to payment arising prior to the bankruptcy constitutes pre-petition debt and is discharged. Section 524 of the Bankruptcy Code delineates the effect of discharge and operates to permanently enjoin any attempt to collect or recover a discharged debt as a personal liability of the debtor. 11 U.S.C. § 524(a)(2). The issue for determination is whether Debtor’s post-petition, post-abandonment condominium assessments are debts within the scope of a discharge.

The case law on this issue is inconsistent. One view holds that the obligation to pay post-petition condominium assessments is not pre-petition debt because a debtor does not become obligated to pay until the assessment is payable. See River Place East Housing Corp. v. Rosenfeld, 23 F.3d 833 (4th Cir.1994), In re Gonzalo, 169 B.R. 13 (Bankr.E.D.N.Y.1994), In re Raymond, 129 B.R. 354 (Bankr.S.D.N.Y.1991), Horton v. Beaumont Place Homeowners Association, Inc., 87 B.R. 650 (Bankr.D.Colo.1987), Alexandria Knolls West Condominium Home Council of Co-owners v. Strelsky, 46 B.R. 178 (Bankr.E.D.Va.1985). Concerns regarding state condominium law and the status of the assessments as a covenant running with the land have been cited in support of this characterization. Gonzalo, Raymond. Other courts have focused on the plain meaning of the Code and a debtor’s fresh start in concluding the post-petition assessments are pre-petition debt. See In re Rostech, 899 F.2d 694 (7th Cir.1990), Affeldt v. Westbrooke Condominium Association, 164 B.R. 628 (Bankr.D.Minn.1994), In re Wasp, 137 B.R. 71 (Bankr.M.D.Fla.1992), Behrens v. Woodhaven Association, 87 B.R. 971 (Bankr.N.D.Ill.1988), aff 'd 1989 WL 47409 (1989), appeal dismissed,

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Cite This Page — Counsel Stack

Bluebook (online)
171 B.R. 52, 1994 Bankr. LEXIS 1191, 25 Bankr. Ct. Dec. (CRR) 1584, 1994 WL 425164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lamb-ohnb-1994.