Luisa F. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condominium Association, Inc.

• Court: Court of Appeals of Georgia
• Decided: September 30, 2013
• Docket: A13A1103
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

September 30, 2013

In the Court of Appeals of Georgia A13A1103. CASAS-RODRIGUEZ v. COSMOPOLITAN ON LINDBERGH CONDOMINIUM ASSOCIATION, INC.

MCFADDEN, Judge.

Luisa F. Casas-Rodriguez appeals the final order awarding damages to

Cosmopolitan on Lindbergh Condominium Association, Inc. and allowing the

association to foreclose its lien on her condominium unit. She argues that the trial

court erred when it awarded the association attorney fees incurred before she filed a

bankruptcy petition; that the association should have pursued relief in her bankruptcy

proceeding, rather than waiting until the bankruptcy had ended; and that the trial

court erred by denying her claim for attorney fees and punitive damages for the

association’s alleged violation of the bankruptcy automatic stay. We conclude that the

trial court correctly calculated the amount of the association’s lien to include pre- petition attorney fees; that the association was not required to seek relief in the

bankruptcy proceeding; and that the Bankruptcy Code preempts Casa-Rodriguez’s

claim for alleged violations of the automatic stay. We therefore affirm.

Casa-Rodriguez owned a unit in the Cosmopolitan on Lindbergh

Condominiums. On July 23, 2010, she filed a Chapter 7 bankruptcy petition. On

January 21, 2011, she was granted discharge. On May 31, 2011, the association filed

the instant complaint, seeking a judgment against Casas-Rodriguez personally for

condominium assessments, late fees, interest and attorney fees. It also sought to

foreclose on its statutory lien. See OCGA § 44-3-109 (a) (creating liens in favor of

condominium associations for sums lawfully assessed against units and unit owners).

Casas-Rodriguez answered and filed a counterclaim, alleging, among other things,

that the association violated the automatic stay of her bankruptcy.

The association moved for summary judgment, seeking judgment against

Casas-Rodriguez personally for $13,049.35 in amounts incurred after the filing of her

bankruptcy petition. It also sought to foreclose its lien, which it valued at $20,995.49.

The trial court granted the association partial summary judgment, but ruled that it

would conduct a hearing on damages. After conducting a hearing at which the

association presented evidence, the trial court entered judgment for the association

2 in the amount of $8,211.77 against Casas-Rodriguez. It ruled that the association

could foreclose its lien, which the trial court valued at $15,342.36. Casas-Rodriguez

then filed this appeal.

“We review a grant or denial of summary judgment de novo and construe the

evidence in the light most favorable to the nonmovant.” Hall v. Town Creek

Neighborhood Assn., 320 Ga. App. 897 (740 SE2d 816) (2013) (citation and

punctuation omitted). “And on appeal from a bench trial, we apply a de novo standard

of review to questions of law decided by the trial court.” Antonios v. Gwinnett Clinic,

294 Ga. App. 101, 102 (1) (668 SE2d 531) (2008).

1. The trial court did not err by including pre-petition attorney fees in its

calucation of the amount of the association’s lien.

Casas-Rodriguez argues that the trial court erred when it awarded the

association pre-petition attorney fees. The trial court’s judgment expressly awarded

only post-bankruptcy attorney fees against Casas-Rodriguez personally. But its

calculation of the amount of the statutory lien included pre-petition attorney fees.

This was proper.

The bankruptcy discharge had no impact on the association’s right to enforce

its lien. “[B]ankruptcy discharge extinguishes only one mode of enforcing a claim --

3 namely, an action against the debtor in personam -- while leaving intact another --

namely, an action against the debtor in rem.” Johnson v. Home State Bank, 501 U. S.

78, 84 (111 SCt 2150, 115 LEd2d 66) (1991).

A discharge in bankruptcy “voids any judgment … to the extent that such judgment is a determination of the personal liability of the debtor.” 11 U.S.C. § 524 (a) (1). However discharges in bankruptcy do not affect liability in rem. Thus, liens on property remain enforceable after discharge unless avoidable under the Bankruptcy Code[, which Casas- Rodriguez does not argue].

Holloway v. John Hancock Mut. Life Ins. Co., 81 F. 3d 1062, 1063 n. 1 (11th Cir.

1996) (punctuation omitted.) And the condominium documents expressly provide that

“[a]ll assessments and charges, together with interest . . . late charges as determined

by Board resolution, costs, and reasonable attorneys’ fees, shall be the personal

obligation of each Owner and a lien upon each Unit until paid in full.” (Emphasis

supplied.) They also provide that “the [a]ssociation shall have an automatic lien

against each [u]nit to secure payment of delinquent assessments as well as interest,

late charges, and costs of collection (including attorneys’ fees and court costs).”

Likewise, OCGA § 44-3-109 (b) (3) of the Georgia Condominium Act provides, “[t]o

the extent that the condominium instruments provide, the personal obligation of the

4 unit owner and the lien for assessments shall . . . include . . . [t]he costs of collection,

including court costs, the expenses of sale, any expenses required for the protection

and preservation of the unit, and reasonable attorney’s fees actually incurred.”

Consequently, under the condominium documents and the statute, the trial court did

not err by including pre-petition attorney fees in calculating the amount of the lien,

an obligation that was not discharged in bankruptcy.

2. The association was not required to pursue its claim in the bankruptcy

proceeding.

Casas-Rodriguez argues that the association should have acted in the

bankruptcy proceeding to foreclose its lien instead of waiting until after her

discharge, in order to minimize the amount of assessments and attorney fees she had

to pay. The only authority she cites, Roche v. Pep Boys, 361 B.R. 615, (N.D. Ga.

2005), does not stand for the proposition that a creditor must pursue its claim in the

bankruptcy proceeding. Instead, that case concerned whether a creditor’s failure to

dismiss a pre-petition bank garnishment wilfully violated the automatic stay. “The

law of this state is well settled that a secured creditor is vested with an election of

remedies and may, either consecutively or concurrently, pursue any number of

consistent remedies to enforce the payment of a debt until it is satisfied.” Reese

5 Developers, Inc. v. First State Bank, 306 Ga. App. 13, 14 (701 SE2d 505) (2010)

(citation and punctuation omitted).

3. Casas-Rodriguez’s claim for the alleged violation of the automatic

bankruptcy stay.

Casas-Rodriguez argues that she is entitled to recover attorney fees and

punitive damages due to the association’s wilful violation of the automatic

bankruptcy stay. The trial court implicitly denied her counterclaim for such. See

Loveless v. Conner, 254 Ga. 663 n. 2 (333 SE2d 586) (1985).

Pretermitting whether the association took any action in violation of the

automatic stay, the bankruptcy code “preempts [Casas-Rodriguez’s] state law claims

against [the association] for the actions they [allegedly] took in violation of [her]

bankruptcy stay.” Smith v. Mitchell Constr. Co., 225 Ga. App. 383, 386 (2) (481 SE2d

558) (1997).

Judgment affirmed. Doyle, P. J., and Boggs, J., concur.