HOA attorney advises getting around bankruptcy stays

In the Feb. 19th Carpenter, Hazlewood, Delgado and Wood (CHDW) enewsletter, “Bankruptcy — So what?”, attorney Miesen focuses on the automatic stay provision when one files for bankruptcy — that period where the debtor is free from creditor demands.   Or, maybe not, as Miesen points out:
 
Let us be clear – sanctions for violations of the automatic stay are not always imposed and they do require more than just a technical violation. . . . A willful violation is an intentional act done with knowledge of the bankruptcy filing. The “willfulness” element goes to the deliberateness of the act  that violated the stay – not the intent to violate the automatic stay. . . . Avoiding any violation of the automatic stay – technical or not – is highly recommended.

The “take-away” point here is that when you are informed of a bankruptcy, whether by personal interaction or mail, action must be taken. Not only will certain action allow an association the best chance of recovery of the pre-bankruptcy debt, but it will also ensure an association does not become liable to the debtor  for sanctions.

 

It is quite plain that the attorney is informing HOA boards of a technical aspect of the automatic stay prohibitions, and that there is a line, perhaps a fine line, that can be walked without incurring any penalties.  Miesen writes, “not only will certain action allow . . . but will insure the association does not become liable . . . for sanctions.”   What is the purposes of writing,

Bankruptcy attorneys throw around the threat of sanctions all the time, but the truth is that only a willful violation of the automatic stay entitles a debtor to damages. 

And then there’s the pitch to give them a call for more information.  Is Miesen walking the ethics line between providing advice about the law and colluding with the client to get around the intent of the law, using technicalities?

  
Miesen works for the Arizona Carpenter Hazlewood law firm that  advertises on its web pages that “Carpenter, Hazlewood, Delgado and Wood is a full service law firm for our community association clients” with a mission “To provide first class legal representation quickly, efficiently and for a fair fee to community associations throughout Arizona.”  CHDW had argued, and won, to remove independent tribunal adjudication of HOA disputes by OAH; has opposed public control of public streets; has favored foreclosure rights against homeowners all the while knowing the limited and discriminatory nature of foreclosure;  has fought for the imposition of unjust transfer fees on outgoing members, placing them under duress, rather than on the incoming new member who will, at least, benefit from the payment of the fee; and has lobbied for other positions before the Arizona Legislature over the years.  CHDW partner Scott Carpenter is, and has been, the CAI chapter Legislative Action Committee Chair.  Carpenter and Hazlewood are members of the CAI College of Community Association Lawyers with its code of ethics “to support the objectives of CAI.”
 
Yet, still, certain towns in Arizona have no problem using CHDW, and other CAI member firms, to educate everyone on HOA matters.  Or that CHDW offers educational programs and seminars to the public, making statements like, “Your education is so important, we made a space for you . . . Our aim is to use the Education Suite as a tool to communicate critical legal issues and trends in our industry.”   Has anyone — has any elected government official or legisaltor — ever wondered just what CHDW is saying to these seminar attendees?   Or, in the interest of a neutral legal position, just what CHDW is not telling the attendees about HOA living? 
 
It should be evident by now that CHDW, and CAI, have a personal agenda to support and defend their HOA clients regardless of any detrimental consequences to the rights and freedoms of the HOA members.  This “us against them” agenda is very reminiscent of the “management vs. employee” antagonisms and hostilities, creating not harmony and positive community relations, but divisiveness and confrontation.
 
 
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Published in: on February 19, 2010 at 10:57 am  Comments (2)  

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2 CommentsLeave a comment

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