Village Park Community Ass'n v. Faitalia (In Re Faitalia)

561 B.R. 767
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedDecember 6, 2016
DocketBAP HI-16-1170-JuTaKu; Bk. 15-00698-RJF
StatusPublished
Cited by2 cases

This text of 561 B.R. 767 (Village Park Community Ass'n v. Faitalia (In Re Faitalia)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Village Park Community Ass'n v. Faitalia (In Re Faitalia), 561 B.R. 767 (bap9 2016).

Opinion

OPINION

JURY, Bankruptcy Judge:

Onenoa Faavevela Faitalia and Soi Fai-talia (collectively, Debtors) filed a motion to value their real property for the purpose of stripping off the asserted secured claim of Village Park Community Association (Association) in their chapter 13 1 case. The bankruptcy court found that the Association’s lien was wholly unsecured and entered an order granting Debtors’ motion. The court also held that Debtors were •entitled to their attorney’s fees and costs under Hawaii law.

Debtors then filed a motion and supporting declarations seeking attorney’s fees and costs under Hawaii Revised Statutes (HRS) § 514B-157, which is a reciprocal attorney fee statute pertaining to certain actions between a condominium association and its owner-members. After a hearing, the bankruptcy court found that Debtors were entitled to their fees and costs under HRS § 421J-10(a)—an analogous statute pertaining to planned community associations—and entered an order awarding Debtors $27,397.89 in attorney’s fees and costs against the Association. This appeal followed. For the reasons explained below, we REVERSE.

I. FACTS

A. Prepetition Events

The Association consists of the unit owners of a planned residential community known as the Village Park Community, established and governed by the Declaration of Protective Covenants for Village Park Community, dated March 13, 1979 (Covenants), and located in Honolulu, Hawaii. Debtors are members of the Association based on their ownership of a home located within the Village Park Community.

The Covenants authorize and require the Association to assess and collect from *769 its members annual membership fees and other assessments, which are personal debts and obligations of the member against whom they are assessed. If a member fails to pay the assessments of the Association when due, the Association may obtain a lien on the unit or unit owned by the member by recording a notice of lien in the Bureau of Conveyances. The lien secures the member’s obligation for unpaid assessments arising before or after recor-dation of the lien, annual interest at twelve percent, and costs of collection including reasonable attorney’s fees.

Debtors failed to pay the Association’s annual membership fees for several years, which resulted in the assessment by the Association of late fees against them which also remained unpaid. 2

In 2009, the Association assigned Debtors’ debt for the delinquent assessments to the law firm of Deeley King Pang & Van Etten for collection. The law firm’s collection efforts included demand letters, payment plans, and the recordation of a notice of lien. Ultimately, in October 2010, the law firm commenced a foreclosure action in the state court against Debtors’ property. In August 2011, J.P. Morgan Mortgage Acquisition (J.P. Morgan), the first trust deed holder, also commenced a foreclosure action against Debtors’ property. A few months later, the state court granted the Association’s motion to consolidate the foreclosure lawsuits against Debtors. J.P. Morgan did not further pursue foreclosure because it entered into a loan modification with Debtors.

On May 19, 2015, the Association filed and served a motion for default judgment, summary judgment, and for interlocutory decree of foreclosure in the circuit court foreclosure action. A declaration of indebtedness attached to the motion for summary judgment shows that Debtors owed the Association $1,168.51 as of May 11, 2015. Debtors did not respond to the motion.

B. Bankruptcy Events

Instead, on June 8, 2015, Debtors filed their chapter 13 petition. In Schedule A, they listed the value of their real property at $540,000. In Schedule D, Debtors showed a secured claim against their property for $609,000 and listed $7,000 owed to the Association as disputed. Their chapter 13 plan provided for monthly payments of $380 over three years with an estimated 6.6% return to unsecured creditors.

On July 29, 2015, the Association filed a proof of claim showing a secured claim for $11,579.79, consisting of Debtors’ delinquent assessments and various fees owed to the Association. The next day, the Association objected to Debtors’ chapter 13 plan on the grounds that it failed to provide for payment of the Association’s claim and was filed in bad faith.

One day later, Debtors filed an amended plan and a motion to value their real property which sought to modify or strip off the Association’s lien because the amount of the first priority mortgage encumbering their residence exceeded the value of the property.

The Association objected to the amended plan and motion to value on several grounds: (1) the value of the property was not supported by admissible evidence; (2) the plan was not filed in good faith; (3) the plan failed to provide for payments on the Association’s claim; (4) Debtors failed to provide for payment of post-petition assessments; and (5) Debtors failed to com *770 mit all of their disposable income to plan payments.

At the confirmation hearing on September 17, 2015, the bankruptcy court scheduled the confirmation of Debtors’ plan and their valuation motion for an evidentiary hearing on March 1, 2016.

In January 2016, Debtors filed a motion for summary judgment contending that the mortgage on their property ($613,-419.89) exceeded the appraised value of the property ($530,000).

The Association filed an opposition to Debtors’ motion and a counter motion for summary judgment. The Association requested the court to deny confirmation and dismiss Debtors’ case based on bad faith. The Association further asserted that the modification of Debtors’ mortgage loan was invalid and resulted in the lender’s claim exceeding the value of Debtors’ property. Due to the invalid modification, the Association maintained that its lien was senior to the $164,000 debt incurred through the modification and thus there was approximately $100,000 of equity after deducting the first loan from the appraised value of $545,000. According to this argument, the Association’s lien could not be stripped off. Attached to the counter motion for summary judgment was the Association’s appraisal of the property showing a value of $545,000.

In opposition to the Association’s counter motion, Mr. Faitalia submitted a declaration stating that Debtors had acted in good faith in filing the bankruptcy petition. He explained that the relationship with the Association had been frustrating to him since he did not understand how an annual fee of $100-$130 could turn into more than $11,000. He also declared that the stripping off of the Association’s lien was permitted by law so he did not understand how that could be bad faith. Finally, in a separate pleading, Debtors maintained that the loan modification was. permitted by the original mortgage documents and was not a new loan as no new money had been loaned. Rather, the additional sum of $164,000 was added to the principal and the term of the note was extended to fifty years.

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Cite This Page — Counsel Stack

Bluebook (online)
561 B.R. 767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-park-community-assn-v-faitalia-in-re-faitalia-bap9-2016.