By: Samantha Joseph, Daily Business Review
The well ran dry for the Bella Luna Condominium Association.About a quarter of its residents were in default on maintenance dues, creditors were battling the association in court, new lawsuits were in the pipeline, and it had one day left before Hialeah planned to disconnect its water supply over nearly $453,000 in unpaid bills.With one business day left before losing utilities, the association took the unusual step of filing for Chapter 11 bankruptcy protection.When it dispatched attorney Richard Robles to file the paperwork, it became one of fewer than three dozen condo associations since 1995 to file bankruptcy in the Southern District of Florida.
“The law says they can’t file Chapter 7 bankruptcy, but in this particular case Chapter 11 was a very useful thing,”
said Robles of Richard R. Robles P.A. in Miami.He argued the association had no assets or revenue because its income, and the complex’s common elements, belonged to residents. He asked the court to slash debt, reassign the utilities tab from the association to homeowners and allow higher assessments.East of the Palmetto Expressway near Okeechobee Road, Bella Luna was supposed to collect $200 per unit in maintenance fees for each of the 100 units at the condo complex on West 24th Street in Hialeah. But with a 25 percent delinquency rate, the monthly revenue was $15,000, or 75 percent of normal.Robles’ petition included a plan to raise maintenance fees to $250 and reduce delinquency to bring in $20,000 per month in the first year and $21,250 monthly the following year.The proposal aimed to streamline the association’s operations and end years of legal battles with creditors threatening new litigation.One secured creditor, Association Financial Services Inc., already had won a judgment of more than $326,000 for unpaid loans and other debts. The two sides entered a post-judgment settlement, but the fluctuating payments of $3,000 to $7,000 per month were too high for the association, so Bella Luna’s bankruptcy filing sought fixed monthly payments of $2,307.Unsecured creditors also were lining up to collect nearly $330,000 for maintenance work, guard services and legal representation. Plus, collection agencies hired to collect dues for the association had turned on it, demanding money for their own unpaid bills.But it was action from the city that forced Bella Luna’s hand and pushed it to find a way to cover the unpaid utilities.
“They needed to be streamlined. There were way too many expenses,”
“It doesn’t always work. Some associations file but they can’t be confirmed for some reason or another. This one worked because there were agreements entered with the city of Hialeah.”
To pay the city, Bella Luna passed a special assessment of about $4,529 per unit—essentially transferring the water bill from the association to residents—and giving the city lien rights on delinquent properties.
“It was unusual but fair, and it made a big difference,”
Robles said.The move paid off Nov. 12 when U.S. Bankruptcy Judge Laurel Isicoff confirmed Bella Luna’s Chapter 11 bankruptcy plan, freeing the group from hundreds of thousands in expenses and slashing about 85 percent of the unsecured debt.
“Not doing anything and waiting for balances to balloon can get associations into a hole that they can’t climb out of,”
said Donna DiMaggio Berger, a Becker & Poliakoff shareholder who focuses on community associations.
“Associations are getting a lot more proactive.”
In the wake of the housing crash, associations across Florida scrambled to collect dues and cover expenses in one of the hardest-hit markets. Thousands flocked to training sessions for recovery advice, and law firms offered hundreds of free training sessions for board members.The running theme: Act early to avert financial crises.
“Our recommendation to our clients is move forward. In the past when there was a lot of equity in the property, the feeling was that banks had superior loans and would do the heavy lifting,”
said DiMaggio Berger, who was not involved in the Bella Luna case.
“But associations have gotten a lot smarter about not waiting for the bank with superior liens to foreclose. They’re doing it themselves, going in, taking title subject to the outstanding mortgage and renting the property.”
By creating a plan for its largest debt, Bella Luna has new room to eliminate liabilities and collect operating capital.
“Now it’s smooth sailing,”
“The savings have been dramatic.”