Bankruptcy & Assessments | 11 U.S.C. § 523(a)(16) | 451 B.R. 1 (Bankr. D. Ariz. 2011)
In this 2011 published decision, Bankruptcy Judge Randolph J. Haines held that an individual Chapter 11 debtor stays personally liable for post-petition homeowner- and condominium-association assessments—and the CC&R-based attorneys’ fees for collecting them—for as long as the debtor retains title, because neither stay relief nor plan confirmation transfers legal title.
Federal court | 451 B.R. 1 (Bankr. D. Ariz. 2011) | Decided 2011-05-26
Scope note: This educational page summarizes In re Shawn Burgueno, Debtor, a Federal court HOA-related authority. It is not legal advice.
Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.
This federal bankruptcy authority was issued by the U.S. Bankruptcy Court for the District of Arizona.
The takeaway
Post-petition homeowners’ and condominium-association assessments, and the attorneys’ fees incurred in collecting them, remain nondischargeable under 11 U.S.C. § 523(a)(16) for as long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the property. Neither relief from the automatic stay nor confirmation of a Chapter 11 plan transfers legal title or terminates that liability, which continues until title actually transfers—by foreclosure, a quit-claim deed, or a plan transfer. Attorneys’ fees provided for in the CC&Rs qualify as a nondischargeable “fee” within § 523(a)(16).
Case Participants
Petitioner Side
- Shawn Burgueno (Debtor)
Individual Chapter 11 debtor and record owner of the Scottsdale condominium; moved to have the associations’ post-petition claims limited to their allowed pre-petition amounts under the confirmed plan; motion denied. - D. Lamar Hawkins (Counsel)
Aiken Schenk Hawkins & Ricciardi PC
Counsel for the debtor, Shawn Burgueno; the only attorney named in the published opinion.
Respondent Side
- Edge at Grayhawk Condominium Association (Creditor)
Condominium association that continued to bill the debtor for post-petition assessments; argued the plan could not discharge those assessments while the debtor held title. Its counsel is not identified in the published opinion, so no Carpenter Hazlewood/CHDB Law connection could be verified. - Grayhawk Community Association (Creditor)
Master community association that likewise sought post-petition assessments and collection attorneys’ fees. Its counsel is not identified in the published opinion, so no Carpenter Hazlewood/CHDB Law connection could be verified.
Neutral Parties
- Randolph J. Haines (Judge)
United States Bankruptcy Judge for the District of Arizona; authored the Opinion and Order denying discharge of the post-petition HOA fees and attorneys’ fees.
What happened
Shawn Burgueno, a Phoenix-area loan officer, filed an individual Chapter 11 case (No. 2:09-bk-10375-RJH) in the U.S. Bankruptcy Court for the District of Arizona in 2009. His scheduled assets included his home, a vacant lot, and five single-family residential investment properties; according to his schedules, all of the investment properties were worth less than the debts secured by them. One investment property was a condominium in Scottsdale, subject to assessments by two associations—the Edge at Grayhawk Condominium Association and the Grayhawk Community Association.
In February 2010, Burgueno stipulated with Wells Fargo Bank for relief from the automatic stay so the bank could immediately foreclose on the condominium. The stipulation terminated the § 362 automatic stay as to the bank’s interest in the property and waived the 14-day stay under Bankruptcy Rule 4001(a)(3). The bankruptcy court approved the stipulation on March 8, 2010.
Burgueno’s Chapter 11 plan was confirmed in August 2010. The order confirming the plan expressly incorporated the Wells Fargo stipulation for treatment of the bank’s claim regarding the Scottsdale condominium.
Despite obtaining stay relief, Wells Fargo did not conduct a foreclosure or trustee’s sale of the condominium for more than a year. In the meantime, the two associations continued to bill Burgueno for post-petition assessments, which totaled roughly $8,000 by April 2011.
In April 2011, Burgueno filed motions seeking orders determining that the associations were bound by his confirmed plan and therefore limited to their allowed pre-petition claims. The associations responded that the plan neither did nor could discharge their post-petition assessments so long as Burgueno held legal title, and that neither the stipulated stay relief nor the plan confirmation terminated that title.
On May 26, 2011, Bankruptcy Judge Randolph J. Haines denied the motion. He held the post-petition assessments—and the attorneys’ fees incurred in collecting them—nondischargeable under §§ 523(a)(16) and 1141(d) for as long as Burgueno retained a legal, equitable, or possessory interest in the unit. Because the associations had not requested a money judgment and the dispute was a contested matter rather than an adversary proceeding, the court entered no judgment but denied the debtor’s motion to compel plan compliance.
This published bankruptcy decision is frequently cited for the proposition that an individual debtor’s personal liability for homeowner- and condominium-association assessments does not stop at the bankruptcy filing or at stay relief—it continues, post-petition, for as long as the debtor holds legal title to the unit. For Arizona associations, it confirms that assessments (and the CC&R-based attorneys’ fees for collecting them) keep accruing as nondischargeable obligations until title actually transfers by foreclosure or conveyance, even where the lender has obtained relief from the automatic stay but delays foreclosing. For owners and their counsel, the case is a cautionary lesson about “surrendering” investment property in bankruptcy: giving up possession and consenting to foreclosure does not, by itself, cut off assessment liability. To stop the clock, the debtor generally must affirmatively transfer title—through a court-approved quit-claim deed under § 363(b)(1) or a plan transfer under § 1123(a)(5)(B)—rather than wait for a lender that may take a year or more to foreclose. The decision also underscores that a Chapter 11 plan will not discharge post-petition HOA fees unless it says so expressly and the association fails to object.
Litigation record
Shawn Burgueno files an individual Chapter 11 bankruptcy case (No. 2:09-bk-10375-RJH) in the District of Arizona; his assets include a Scottsdale condominium subject to two associations’ assessments.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Burgueno stipulates with Wells Fargo Bank for relief from the automatic stay so the bank can foreclose on the condominium, waiving the 14-day stay under Bankruptcy Rule 4001(a)(3).
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The bankruptcy court approves the Wells Fargo stay-relief stipulation.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Burgueno’s Chapter 11 plan is confirmed; the confirmation order incorporates the Wells Fargo stipulation for treatment of the condominium claim.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Wells Fargo still has not foreclosed; post-petition assessments total roughly $8,000. Burgueno moves to have the associations’ claims deemed controlled by the confirmed plan and limited to their pre-petition amounts.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Bankruptcy Judge Randolph J. Haines denies the motion, holding the post-petition assessments and collection attorneys’ fees nondischargeable under §§ 523(a)(16) and 1141(d).
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
FAQ
What did In re Burgueno decide?
The bankruptcy court held that an individual Chapter 11 debtor’s personal liability for post-petition homeowner- and condominium-association assessments—and the attorneys’ fees incurred in collecting them—remains nondischargeable under 11 U.S.C. § 523(a)(16) for as long as the debtor retains a legal, equitable, or possessory ownership interest in the unit. Neither relief from the automatic stay nor confirmation of the debtor’s plan ended that liability, so the court denied the debtor’s motion to limit the associations to their pre-petition claims.
What is 11 U.S.C. § 523(a)(16)?
Section 523(a)(16) is a bankruptcy discharge exception for homeowner- and condominium-association fees and assessments. Before the 2005 BAPCPA amendments it applied only while the debtor occupied the property, but the amendment expanded it so that it applies regardless of possession as long as the debtor or the trustee retains a legal or equitable ownership interest in the unit. The exception covers not only “assessments” but also “a fee,” which the court read to include collection attorneys’ fees.
Why didn’t stay relief or plan confirmation end the debtor’s liability for HOA fees?
The court explained that nothing in § 523(a)(16) or § 1141 terminates post-petition liability when a debtor obtains stay relief or confirms a plan, because neither event transfers legal title. Stay relief may signal that the debtor has surrendered possession, but the debtor remained the record owner of the condominium. As long as the debtor holds title, post-petition assessments continue to accrue as nondischargeable obligations.
Are an association’s attorneys’ fees for collecting assessments also nondischargeable?
Yes. The court held that attorneys’ fees the associations incurred collecting the assessments are themselves a nondischargeable “fee” under § 523(a)(16). The CC&Rs—which Arizona treats as a contract—expressly provided for collection fees, and even a narrow reading of the discharge exception could not exclude attorneys’ fees. The court relied on Ninth Circuit BAP and Seventh Circuit authority reaching the same conclusion.
How could the debtor have stopped the post-petition assessments from accruing?
The court explained that to end the liability the debtor would have had to transfer legal title rather than wait for the lender to foreclose. Options included conveying the unit by quit-claim deed—an out-of-the-ordinary-course transaction requiring a motion, notice, hearing, and court order under § 363(b)(1)—or transferring title through the plan under § 1123(a)(5)(B). Until title actually passed, the nondischargeable liability continued.
Is this decision binding precedent?
It is a published, precedential decision of the U.S. Bankruptcy Court for the District of Arizona (451 B.R. 1 (Bankr. D. Ariz. 2011)), authored by Bankruptcy Judge Randolph J. Haines. As a trial-level bankruptcy opinion it binds the parties and is persuasive, frequently cited authority on the post-petition, nondischargeable nature of HOA and condominium assessments; it is not an appellate decision, so other courts are not strictly bound by it.
Case Dossier
This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.
Case Summary
| Case ID / citation | 451 B.R. 1 (Bankr. D. Ariz. 2011) |
|---|---|
| Court / tribunal | Federal Court |
| Decision / key date | May 26, 2011 |
| Judge / panel | Haines |
| Parties | Edge at Grayhawk Condominium Association and Grayhawk Community Association (Creditors/Respondents) v. Shawn Burgueno (Debtor/Movant) |
| Governing law |
|
| Topics | bankruptcyliensassessmentsattorneys-feescc-and-rsforeclosure |
| Outcome / holding | Post-petition homeowners’ and condominium-association assessments, and the attorneys’ fees incurred in collecting them, remain nondischargeable under 11 U.S.C. § 523(a)(16) for as long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the property. Neither relief from the automatic stay nor confirmation of a Chapter 11 plan transfers legal title or terminates that liability, which continues until title actually transfers—by foreclosure, a quit-claim deed, or a plan transfer. Attorneys’ fees provided for in the CC&Rs qualify as a nondischargeable “fee” within § 523(a)(16). |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | No raw source-folder files found for this slug |
|---|---|
| Step-by-step docket roadmap | 6 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Curated download aliases | 0 download links |
Key Issues & Findings
In re Burgueno arose from the individual Chapter 11 bankruptcy of Shawn Burgueno, a Phoenix-area loan officer whose properties included a Scottsdale condominium subject to assessments by two associations, the Edge at Grayhawk Condominium Association and the Grayhawk Community Association. In February 2010 Burgueno stipulated to relief from the automatic stay so that Wells Fargo Bank could foreclose on the condominium, and his Chapter 11 plan was confirmed in August 2010. Wells Fargo, however, did not foreclose for more than a year, and during that time the two associations kept billing Burgueno for post-petition assessments, which reached roughly $8,000 by April 2011. Burgueno moved for orders declaring that the associations were bound by his confirmed plan and limited to their allowed pre-petition claims. Bankruptcy Judge Randolph J. Haines denied the motion. Applying 11 U.S.C. § 523(a)(16) as expanded by the 2005 BAPCPA amendments, the court held that an individual debtor’s personal liability for homeowner- and condominium-association fees continues after the bankruptcy filing for as long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the unit. Because neither stay relief nor plan confirmation transfers legal title, Burgueno remained personally liable until title actually passed—by foreclosure, a quit-claim deed, or a plan transfer of title. The court further held that the attorneys’ fees the associations incurred in collecting the assessments are themselves a nondischargeable “fee” under § 523(a)(16), supported both by the CC&Rs (a contract under Arizona law) and A.R.S. § 12-341.01. Because the associations sought no money judgment and this was not an adversary proceeding, the court entered no judgment but denied the debtor’s motion to compel plan compliance.
The court began with the plain language of § 523(a)(16). Before the 2005 BAPCPA amendments the exception applied only when the debtor occupied the property; as the Ninth Circuit Bankruptcy Appellate Panel explained in In re Foster, the amendment expanded the exception so it applies regardless of possession, so long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the unit. Nothing in § 523(a)(16) or § 1141 terminates that post-petition liability upon stay relief or plan confirmation.
The court acknowledged that post-petition, pre-confirmation fees are administrative expenses that § 1129(a)(9)(A) requires be paid in full on the effective date, but that plan treatment did not apply here because the associations filed neither a proof of claim nor an application for allowance of an administrative expense; and § 1141(d)(2) makes clear that individual Chapter 11 debtors are not discharged from debts excepted under § 523. Had the plan expressly discharged the post-petition fees and the associations failed to object despite adequate notice, that provision would be res judicata under the Supreme Court’s decision in Espinosa—but this plan did not so provide, and the court cautioned that the “specter” of Rule 11 penalties should deter bad-faith attempts to discharge otherwise nondischargeable debts by such an ambush.
The core problem was that the bank failed to foreclose for more than a year after obtaining stay relief—an increasingly frequent occurrence. While stay relief may signal the debtor’s surrender of possession, surrender does not terminate legal title; following the Massachusetts bankruptcy court in In re Ames, the court held that post-petition assessments remain nondischargeable while the debtor remains the record owner. To end the liability, the debtor would have to convey title—by quit-claim deed (an out-of-the-ordinary-course transaction requiring a motion, notice, hearing, and order under § 363(b)(1)) or by a plan transfer of title under § 1123(a)(5)(B).
On attorneys’ fees, the court noted that Arizona treats the CC&Rs as a contract (Pinetop Lakes Ass’n v. Hatch), and that while A.R.S. § 12-341.01 might not apply because the contract was not the central issue in the litigation, the CC&Rs themselves expressly provided for collection fees. Moreover, § 523(a)(16) excepts not only “assessments” but also “a fee,” and even a narrow construction of the exception cannot exclude attorneys’ fees; the Ninth Circuit BAP (Foster) and the Seventh Circuit (In re Busson-Sokolik) reached the same conclusion. The court therefore held the fees nondischargeable but declined to enter a money judgment, because the associations had not requested one and the matter was a contested motion rather than an adversary proceeding under Bankruptcy Rule 7001(6).
This published bankruptcy decision is frequently cited for the proposition that an individual debtor’s personal liability for homeowner- and condominium-association assessments does not stop at the bankruptcy filing or at stay relief—it continues, post-petition, for as long as the debtor holds legal title to the unit. For Arizona associations, it confirms that assessments (and the CC&R-based attorneys’ fees for collecting them) keep accruing as nondischargeable obligations until title actually transfers by foreclosure or conveyance, even where the lender has obtained relief from the automatic stay but delays foreclosing.
For owners and their counsel, the case is a cautionary lesson about “surrendering” investment property in bankruptcy: giving up possession and consenting to foreclosure does not, by itself, cut off assessment liability. To stop the clock, the debtor generally must affirmatively transfer title—through a court-approved quit-claim deed under § 363(b)(1) or a plan transfer under § 1123(a)(5)(B)—rather than wait for a lender that may take a year or more to foreclose. The decision also underscores that a Chapter 11 plan will not discharge post-petition HOA fees unless it says so expressly and the association fails to object.