Timothy R. Heck and Varda Treibach-Heck

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
TIMOTHY R. HECK and VARDA
TREIBACH-HECK,
Debtors.
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Case No. 09-31512 TEC
Chapter 7
MEMORANDUM RE DEBTORS’ MOTIONS TO REOPEN
Upon due consideration, for the reasons stated below, the
court denies Debtors’ motions to reopen their bankruptcy case.
This memorandum constitutes the court’s findings of fact and
conclusions of law.
FACTS
On June 2, 2009, Debtors filed a no-asset chapter 7 bankruptcy
case. 	On June 23, 2009, Debtors filed a statement of intent to
surrender overencumbered real properties located at 12604 Carmel
Country Road and 18064 Ivy Hill Drive #8, San Diego, California
(collectively, the Properties). 	On July 9, 2009, the chapter 7
trustee filed a report of no distribution. 	On September 10, 2009,
the court entered Debtors’ discharge pursuant to 11 U.S.C. § 727.
The bankruptcy case was closed on September 25, 2009.
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Signed and Filed: January 13, 2011
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
January 14, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-31512 Doc# 29 Filed: 01/13/11 Entered: 01/14/11 12:12:03 Page 1 of 4

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On June 3, 2010, August 31, 2010, and October 8, 2010, Debtors
filed three separate motions to reopen their bankruptcy case, and
paid a $260 reopening fee. 	Debtors seek to enforce the discharge
injunction against Elysian Community Association RB 214 (Elysian),
a homeowners association that Debtors contend is attempting to
collect postpetition homeowners dues. 1 	Debtors also seek to compel
the mortgagee (Chase) to take legal title to the Properties,
effective as of the bankruptcy petition date, to assume financial
responsibility for the Properties, and to remove from county
records and Debtors’ credit reports delinquencies reported against
Debtors with respect to the Properties.
LAW
A bankruptcy case may be reopened for cause. 	11 U.S.C.
§ 350(b). 	The court determines that Debtors’ motions to reopen
should be denied, because no cause exists to reopen Debtors’
bankruptcy case.
First, Elysian’s collection efforts do not violate the
discharge injunction, because Debtors continue to hold legal title
to the Properties, and because a discharge under section 727 does
not discharge a debtor with a “legal, equitable, or possessory
ownership interest” from any debt for homeowners association
assessments due and payable postpetition. 	11 U.S.C. § 523(a)(16). 2
1 Debtors acknowledge that they were current on their
homeowners dues as of the petition date.
2 Section 523(a)(16) provides in relevant part as follows:
A discharge under section 727 . . . of this title does not
discharge an individual from any debt for a fee or assessment that
becomes due and payable after the order for relief to a membership
association with respect to the debtor’s interest in a unit that
has condominium ownership, . . . or a lot in a homeowners
association, for as long as the debtor or the trustee has a legal,
equitable, or possessory ownership interest in such unit . . .
-2-	Case: 09-31512 Doc# 29 Filed: 01/13/11 Entered: 01/14/11 12:12:03 Page 2 of 4

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Debtors themselves acknowledge that the HOA fees Elysian seeks to
collect came due postpetition.
Second, the court does not have subject matter jurisdiction to
enter injunctive or declaratory relief against Chase. 	Such claims
for relief do not “arise under” the Bankruptcy Code or “arise in”
the bankruptcy case. 	Although the Bankruptcy Code requires
individual debtors to file a statement as to whether they intend to
retain or surrender property encumbered by secured debt, 3 the Code
does not impose a duty on the affected secured creditor to act upon
Debtors’ statement of intention. 	Nor are such claims “related to”
the bankruptcy case, because the outcome of a lawsuit for
injunctive or declaratory relief would not have any conceivable
effect on Debtor’s bankruptcy estate. 	The complained-of conduct
occurred postpetition, and the Properties are no longer property of
the bankruptcy estate. 	11 U.S.C. §554(c); 	28 U.S.C §§ 157(b),
1334(b).
Because no cause exists to reopen Debtors’ bankruptcy case and
the motion to reopen is denied, the Clerk shall refund to Debtor
the $260 reopening fee paid by Debtors.
Debtors should consider hiring an attorney to help them limit
their financial exposure, as there undoubtedly exist inexpensive,
practical means by which Debtors can use the Properties to pay the
homeowners dues until Chase forecloses.
**END OF MEMORANDUM**
3 11 U.S.C. § 521(a)(2)(B).
-3-	Case: 09-31512 Doc# 29 Filed: 01/13/11 Entered: 01/14/11 12:12:03 Page 3 of 4

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COURT SERVICE LIST
Varda Treibach-Heck
784 Vespucci Ln.
Foster City, CA 94404-2921
Timothy R. Heck
784 Vespucci Ln.
Foster City, CA 94404-2921
Case: 09-31512 Doc# 29 Filed: 01/13/11 Entered: 01/14/11 12:12:03 Page 4 of 4