In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00357-CV

___________________________

On Appeal from the 158th District Court

Denton County, Texas

Trial Court No. 17-3380-158

Before Sudderth, C.J.; Pittman and Bassel, JJ.

Memorandum Opinion by Justice Bassel

GRIFFIN PARC RESIDENTIAL ASSOCIATION, INC., Appellant

V.

JOHN C. KING, Appellee
2

MEMORANDUM OPINION

I. Introduction

Appellant Griffin Parc Residential Association, Inc. (the HOA) raises one issue 

challenging a summary judgment obtained by Appellee John C. King (Owner). 

Owner owns a lot in the Griffin Parc subdivision administered by the HOA. The trial 

court rendered judgment that the HOA acted in violation of the Bankruptcy Code’s 

automatic stay when it sent Owner notice of the amount of the HOA’s annual 

maintenance assessment. The trial court found that the notice was a part of the 

collection process for unpaid assessments, that the notice was a necessary act to create 

an assessment lien against Owner’s property, and that the bankruptcy stay in effect 

when the notice was sent made the notice void because it was a part of the liencreation process.

We disagree. Both the lien and the debt that obligated Owner to pay the 

assessment existed long before the notice was sent. The notice merely quantified the 

debt that Owner was previously obligated to pay as a result of his ownership of a lot 

in the subdivision administered by the HOA. Thus, the notice did not create or 

enforce a lien and did not violate the automatic stay. We reverse the judgment of the 

trial court and render judgment in favor of the HOA.

II. Procedural Background

The HOA filed an “Application for Expedited Foreclosure Proceeding 

Pursuant to Rule 736 of the Texas Rules of Civil Procedure” in which it sought to 
3

foreclose its lien on a lot in the subdivision that the HOA administered. See Tex. 

Prop. Code Ann. § 209.0092; Tex. R. Civ. P. 736.1. Owner resided on the lot. The

lien that the HOA sought to foreclose allegedly was defaulted after Owner failed to 

pay the HOA’s 2016 maintenance assessment.

Owner responded to the HOA’s foreclosure action by filing a suit for 

declaratory judgment. That suit stayed the foreclosure action because it “put[] in issue

. . . [the] enforcement of the . . . lien” that was the basis of the HOA’s suit. See Tex. 

R. Civ. P. 736.11. Owner alleged that he had filed a bankruptcy proceeding under 

Chapter 7 of the United States Bankruptcy Code before the HOA sent notice of the

2016 annual maintenance assessment. Though Owner conceded that the lien that the 

HOA sought to foreclose had its origins in the Declaration governing the subdivision 

filed in 2001, he contended that the notice was “necessary” to enforce the lien that the 

HOA sought to foreclose. Specifically, Owner alleged that

the 2001 lien, while forming a basis for Griffin Parc’s claim of its lien rights, 

and without which it could not, fifteen years later, claim a right of foreclosure,

was merely necessary but not sufficient to enforce an assessment. Other things 

had to take place, namely: Assessment of the amount due for 2016, notice of 

the . . . annual assessment, non-payment on or before the due date, the 

assessment lien which arose on the delinquency date, and later a notice of 

assessment lien.

Allegedly, “[these] additional, necessary steps [were required] to make the 2001 lien 

effective [but] were void ab initio” because the Bankruptcy Code stayed the ability of

any creditor to create a lien against property that was part of a bankruptcy estate. See 

11 U.S.C.A. § 362(a) (West 2015).
4

The parties filed cross-motions for summary judgment. The trial court granted 

Owner’s motion for summary judgment and denied the HOA’s. The summaryjudgment order included a finding that the HOA had sent notice of the assessment 

that was the basis for its foreclosure claim during the time that a creditor’s actions 

were stayed by the Bankruptcy Code. For this reason, the judgment decreed that the 

notice “was ineffective notice, necessary to create an assessment lien which 

assessment lien was essential to [the HOA’s] enforcement action.” Owner nonsuited 

other claims made in his declaratory-judgment action, making the trial court’s 

summary-judgment order a final judgment. The HOA appealed.

III. Factual Background

The legal effect of the notice sent by the HOA to Owner and the nature of the 

HOA’s lien are hotly contested, and we will deal with the factual details of the notice 

and lien during our discussion of the document in which they have their origin. But

this appeal also turns on the timing of certain events because they establish the 

framework of the two underlying questions that we must resolve: (1) when did the 

HOA’s lien and the debt to pay the assessment come into existence, and (2) during 

what period did the provisions of the Bankruptcy Code impact the HOA’s actions.

The timing of the four pivotal events in this case’s chronology is undisputed. 

First, in 2001, the developer of the subdivision that included the lot at issue filed in 

the appropriate deed records a “Declaration Of Covenants, Conditions[,] And 

Restrictions For Griffin Parc” (the Declaration) that created covenants to establish
5

the rules and regulation of the HOA. Second, Owner purchased his lot in the 

subdivision in 2004. Third, Owner filed his Chapter 7 bankruptcy proceeding on 

November 3, 2015. Fourth, sometime in late December 2015 or early January 2016, 

the HOA sent Owner a notice of the 2016 annual maintenance assessment due the 

HOA.1

All agree that the notice was sent during the time that the Bankruptcy Code 

stayed the ability of a creditor to create or enforce a lien. Other acts relating to the 

assessment lien, such as filing notice of the lien in the relevant deed records and the 

suit to foreclose the lien, occurred after Owner was discharged from bankruptcy and 

after the stay no longer was in effect.

IV. The Standard of Review Governing Cross-Motions for Summary Judgment

We apply a de novo standard of review to summary judgments. Travelers Ins. 

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). “When competing summaryjudgment motions are filed, ‘each party bears the burden of establishing that it is 

entitled to judgment as a matter of law.’” Tarr v. Timberwood Park Owners Ass’n, Inc., 

556 S.W.3d 274, 278 (Tex. 2018) (quoting City of Garland v. Dallas Morning News, 22 

S.W.3d 351, 356 (Tex. 2000)). “[I]f ‘the trial court grants one motion and denies the 

other, the reviewing court should determine all questions presented’ and ‘render the 

 1

At oral argument, the HOA acknowledged that a copy of the notice is not a 

part of the record because the HOA could not locate it in its records.
6

judgment that the trial court should have rendered.’” Id. (quoting City of Garland, 22 

S.W.3d at 356).

V. Discussion

A. How the provisions of the Bankruptcy Code overlay this appeal

The Bankruptcy Code creates distinctions that frame this appeal. The 

distinctions begin with the principle that a creditor may have the right to pursue a 

debtor in bankruptcy personally and that a discharge in bankruptcy may not free the 

debtor from ongoing personal liability on the debt. But a complication arises if the 

creditor chooses the wrong time in the process to create a lien to secure the debt. 

The creditor may find that the Bankruptcy Code voids that attempt even though that 

creditor could otherwise pursue the debtor to collect the debt.

Owner relies on these distinctions to argue that no matter whether he might 

have been personally liable for the 2016 annual maintenance assessment or whether

the HOA might have pursued a judgment for the assessment, the HOA’s attempt to 

create or to enforce a lien to secure that debt during the bankruptcy stay was void. 

His premise is that the notice created the lien because it was a precondition to the 

enforcement of the lien securing payment of the assessment and that the HOA sent 

the notice during the automatic bankruptcy stay that made its act void because the 

Bankruptcy Code stayed that action. This argument creates our starting point to 

describe the bankruptcy principles and the terms that govern here when we as a state 

court apply federal bankruptcy law to resolve a state-court foreclosure suit.
7

The filing of a bankruptcy petition “operates as a stay” of certain actions, 

mostly of creditors against debtors who have filed bankruptcy. See 11 U.S.C.A.

§ 362(a). Whether the stay stops a creditor from taking an action against a debtor 

often turns on the time that the debt arises. Debts that arise after the filing of a 

bankruptcy petition, termed post-petition debts, may often be pursued and collected 

from a bankruptcy debtor. In re Zamora, No. 11-52138C, 2012 WL 4501680, at *1–2

(Bankr. W.D. Tex. Sept. 28, 2012) (mem. op.). The HOA and Owner agree that the 

annual maintenance assessment in this case was a post-petition debt because it 

became due after the filing of Owner’s bankruptcy petition.

2

Though the stay does not prohibit collection efforts for a post-petition debt 

against the debtor personally, that does not mean the creditor may also take actions 

impacting property held by the bankruptcy estate. Once a bankruptcy is filed, the 

debtor and the bankruptcy estate exist in two separate entities. The bankruptcy estate 

usually consists of property owned by the debtor when he or she files bankruptcy. See 

11 U.S.C.A. § 541(a)(1) (West 2016); R. Hassell Builders, Inc. v. Texan Floor Serv., Ltd., 

546 S.W.3d 816, 827 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“The 

 2

Not all federal courts conclude that assessments billed after the filing of 

bankruptcy constitute a post-petition debt. See, e.g., Goudelock v. Sixty-01 Ass’n of 

Apartment Owners, 895 F.3d 633, 638 (9th Cir. 2018) (stating that owner’s personal 

obligation to pay the condo association assessments “was not the result of a separate, 

post-petition transaction but was created when she took title to the condominium 

unit. As a result, the debt for the assessments arose pre-petition and is dischargeable 

under Section 1328(a), unless the Bankruptcy Code provides an exception to 

discharge”). In this appeal, Owner does not argue the assessment is a pre-petition 

debt.
8

Bankruptcy Code defines ‘property of the estate’ broadly to include ‘all legal or 

equitable interests of the debtor in property as of the commencement of the 

[bankruptcy] case.’” (quoting Houston Pipeline Co. v. Bank of Am., N.A., 213 S.W.3d 

418, 424 (Tex. App.—Houston [1st Dist.] 2006, no pet.))).

3

 Some property, such as 

the lot that was Owner’s homestead, can pass out of the bankruptcy estate while the 

bankruptcy case is pending.4

The automatic stay prevents a creditor from taking certain actions against the 

property of the estate, even though the creditor is pursuing a post-petition debt. See 

Zamora, 2012 WL 4501680, at *2 (“However, ‘the right to undertake collection 

activity, including filing a lawsuit, to collect a post-petition debt does not allow all 

 3

As one author explained,

Commencement of a bankruptcy case creates in effect an “estate” by 

operation of law. The estate consists of the various types of property 

described in 11 U.S.C.A. § 541 “wherever located and by whomever 

held.” 11 U.S.C.A. § 541(a); Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 

[143–44] (Tex. App.—Texarkana 2000, no pet.). With limited 

exceptions[,] the debtor’s bankruptcy “estate” is comprised of all the 

debtor’s legal or equitable interests in property as of the commencement 

of the bankruptcy action . . . .

2 Robin Russell et al., Texas Practice Guide: Creditor’s Rights § 7:62 (Nov. 2018).

4

Property that the debtor claims to be exempt from creditor’s claims, such as a 

homestead, can cease being property of the estate even before the bankruptcy 

concludes. If an interested party does not challenge the debtor’s claim that property is 

exempt, the property passes out of the estate thirty days after the first meeting of 

creditors. 15 W. Mike Baggett, Texas Practice Series: Texas Foreclosure: Law and Practice

§ 16.02 (Apr. 2018). No one contends that the lot at issue—though Owner’s 

homestead—passed out of the bankruptcy estate before the HOA’s actions that 

Owner contends improperly attempted to create or enforce a lien against the lot.
9

collection activities.’” (quoting Montclair Prop. Owners Ass’n v. Reynard (In re Reynard), 

250 B.R. 241, 245 (Bankr. E.D. Va. 2000))). The aspect of the automatic stay at issue 

in this case prevents “any act to create, perfect, or enforce any lien against property of 

the estate.” See 11 U.S.C.A. § 362(a)(4). In other words, the stay may not impede a 

creditor from pursuing a debtor personally on a post-petition debt, but it may prevent 

the creditor from creating, perfecting, or enforcing a lien on property of the 

bankruptcy estate to secure that debt.5 And if the attempt to create or enforce the 

lien occurs while the stay is in effect, that act has no effect; the Texas Supreme Court 

is clear that acts in violation of the stay are not merely voidable but void. See York v. 

State, 373 S.W.3d 32, 38 (Tex. 2012); Cont’l Casing Corp. v. Samedan Oil Corp., 751 

S.W.2d 499, 501 (Tex. 1988).

 5

Reynard summarized the distinction as follows:

The right to undertake collection activity, including filing a lawsuit, to 

collect a post-petition debt does not allow all collection activities. The 

automatic stay prevents any act to create, perfect, or enforce any lien 

against property of the estate, and any act to obtain possession of 

property of the estate or of property from the estate or to exercise 

control over property of the estate. [11 U.S.C.A.] §§ 362(a)(4) and (a)(3), 

respectively. Consequently, a post-petition creditor who has the right to 

initiate a suit against a debtor and [to] obtain a judgment for a postpetition debt without violating the automatic stay may not have recourse 

to execute on all assets that would have been, but for the filing of a 

chapter 13 petition, property of the debtor. Recourse is limited to 

property that is not property of the estate.

250 B.R. at 244–45.
10

Further, not every debt is discharged in bankruptcy. One debt excepted from 

discharge in a Chapter 7 proceeding (such as Owner filed) is

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 lot in a homeowners[’] association, for as long as the debtor or the 

trustee has a legal, equitable, or possessory ownership interest in . . . such 

lot . . . .

11 U.S.C.A. § 523(a)(16) (West 2016). Thus, Owner’s discharge—the relief that 

bankruptcy gives for liability on the debt—did not include the debt for the postpetition assessment that began this controversy.

The status of the debt and the fact that Owner did not receive a discharge from 

it has no impact on the question we face. Our question focuses on whether sending

the notice of the assessment during the period the stay was in place “created” or 

“enforced” the lien that the HOA sought to foreclose. See id. § 362(a)(4). In its most 

general terms, the question is whether sending notice of the assessment created the 

lien because it was some type of precondition to the HOA’s ability to claim a lien

against the lot and whether the attempt to perform that precondition during the 

period of the stay effectively rendered the attempt void. This question is not 

impacted because Owner was not discharged for the underlying debt. As we have 

described, the bankruptcy scheme creates situations where even if the debt survives 

the process, a lien created during the period of time the stay is in place is void.

As another point of clarification, the issue before us deals only with whether a 

lien secured the 2016 assessment. We do not deal with whether the owner of a lot 
11

would be liable for the assessments occurring after the discharge and whether the lot 

would stand as security for that debt.6

B. A determination of the effect of the bankruptcy stay requires an 

examination of when the HOA’s assessment lien came into existence.

The outlined bankruptcy principles that mark a temporal boundary during

which a lien cannot be created or enforced cause a quandary when applied to the lien

at issue in this appeal—the lien the HOA sought to foreclose because Owner failed to 

pay the 2016 annual maintenance assessment. We must decide whether that lien was 

created when the Declaration governing the HOA was filed, more than fifteen years 

before the bankruptcy stay went into effect, or whether the lien is not fully created 

and enforceable until the HOA’s notice was sent during the period the stay was in 

place. In other words, does the lien circle over the lot like the development’s Griffin 

 6

We note a distinction created by the Bankruptcy Code that is not relevant to 

our disposition because Owner filed a Chapter 7 petition. The discharge exception in 

in section 523(a)(16) may not apply to the discharge received by a Chapter 13 debtor. 

See In re Wiley, 581 B.R. 441, 450 (Bankr. D. Md. 2018) (refusing to adopt “the 

position advocated by the Condominium” that essentially asked the bankruptcy court 

“to rewrite the Bankruptcy Code to insert the § 523(a)(16) discharge exception into 

§ 1328(a)”). Wiley lifted the stay to permit the condo association to reduce its claim to 

judgment because a discharge had not been entered. Id. at 451–52. But Wiley also 

noted that “a Chapter 13 debtor’s obligation to pay post-petition condominium 

assessments continues up to the time of entry of a discharge under § 1328(a) of the 

Bankruptcy Code, at which time the condominium’s in rem remedies survive, but the 

in personam obligations of the debtor are discharged.” Id. at 447. We reference Wiley

simply to note that our opinion is not a one-size-fits-all opinion in its application of 

bankruptcy law to assessments for commonly-owned property.
12

namesake, waiting to pounce if the assessment is not paid, or does it rise like a 

phoenix each year if a lot owner does not pay the annual maintenance assessment?7

It is not clear from Owner’s argument whether he is arguing that the acts of the 

HOA created or enforced a lien in violation of section 362(a)(4). We interpret his 

argument and the recitations in the trial court’s judgment to mean that the notice 

created the debt to pay the assessment and that without that debt, the lien did not 

exist.

Owner’s brief states the issue as follows:

If there were no notice of assessment, there would be no due date, no delinquency date, 

no continuing debt, no lien, no notice of lien, and no foreclosure. [The HOA]

would have us engage in a form of time travel, that in July of 2001 

[Owner’s] unpaid assessment, from fifteen years later, had already 

created an [enforceable] lien. It might have been a lien, but it lacked a piece to 

its effectiveness: the unpaid amount on the delinquency date. Notice and demand for 

payment, and the delinquency date, had not happened yet. [Emphasis added, 

citation omitted.]

The theme that the notice created the debt—and thus, the lien—is carried forward 

into the trial court’s finding that the notice “was ineffective notice, necessary to create an 

assessment lien which assessment lien was essential to [the HOA’s] enforcement action 

against” Owner. [Emphasis added.]

These statements still leave us grasping for the answer as to why Owner and 

the trial court contend that the notice served “to create an assessment lien.” As we 

 7

The nature of the lien is one we determine under Texas law. See Douglas v. 

Delp, 987 S.W.2d 879, 883 (Tex. 1999) (“Courts look to state law to characterize the 

‘property rights in the assets of a bankrupt’s estate.’” (quoting Butner v. United States, 

440 U.S. 48, 54–55, 99 S. Ct. 914, 918 (1979))).
13

note below, the Declaration established every aspect of the obligation to pay the

assessment and the lien to secure that obligation, including the fact that the

assessment became delinquent the day following its due date. The Declaration does 

provide that the amount of the assessment is set annually; it states that the Board of 

the HOA shall “fix the date of the commencement and the amount of the annual 

maintenance assessment against each Lot.” The Declaration then provides for written 

notice of the assessment. In this scheme, the notice serves the function of 

communicating to a lot owner the Board’s decision about the date the assessment is 

due and its amount. Thus, we conclude that the question we must answer is whether 

quantifying the amount of the assessment created the lien even though the 

Declaration states that it impressed upon the lot a lien for the payment of future

assessments from the date it was filed and established a continuing debt to pay the 

assessment.

We hold that the lien was created by the filing of the Declaration in 2001 and 

not the issuance of the notice in 2015 or 2016. If the covenants creating a declaration 

governing a subdivision are appropriately drafted, the Texas Supreme Court holds

that a lien to secure the payment of assessments exists from the time of filing the

declaration. Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 633–37 (Tex. 

1987). The declaration also creates an obligation to pay assessments that is “an

inherent part” of a lot owner’s property interest. Id. at 636. In this way, the 
14

underlying debt and the lien to secure its payment exist from the date of the filing of 

the declaration and are not created by notice of the assessment. 

In this case, the Declaration that governs the lot at issue creates a lien against 

the lot that attached at the time it was filed. That Declaration also created the debt to 

pay the assessment and made that obligation a charge on the ownership of the lot. 

Thus, the lien that the HOA sought to enforce was created long before the 

bankruptcy stay went into effect, and the stay did not affect its existence.

C. The Texas Supreme Court holds that a lien to secure the payment of HOA

assessments may come into existence and attach when the declaration creating 

covenants governing the property is filed.

In Inwood, the Texas Supreme Court dealt with the priority of an assessment 

lien versus a lot owner’s homestead rights. Id. at 633. In Inwood, a developer of a 

subdivision had filed a declaration of covenants and restrictions years before 

homeowners purchased lots in the subdivision. Id. at 633–34. Specifically, the 

question before the supreme court was whether the contractual lien described in the 

declaration existed before the homeowners took title to their lots. Id. at 635.8

 8

The usual scheme of a subdivision as a common-interest development is as 

follows:

Subdivision Developments are Common-Interest Developments that 

consist of parcels of land, usually called “Lots,” that are subject to 

separate conveyance and exclusive ownership. In most cases, 

Subdivision Developments arise where a large tract of land is owned by a 

real estate developer who divides the tract into separate, individuallyowned Lots by filing a subdivision plat with the local governmental 

entity. The subdivision plat must be approved by such local government 
15

The answer to this question turned on when a lien for assessments attached.

The date of attachment answered the question of whether the lien was superior to the

the homestead right in the lots because “if the lien attached prior to the claimed 

homestead right and the lien is an obligation that would run with the land, there 

would be a right to foreclose.” Id.

Inwood held that a covenant runs with the land “when it touches and concerns 

the land; relates to a thing in existence or specifically binds the parties and their 

assigns; is intended by the original parties to run with the land; and when the 

successor to the burden has notice.” Id. The opinion concluded that “[t]he covenant 

to pay maintenance assessments [created by the declaration that governed the 

subdivision] for the purpose of repairing and improving the common areas and 

recreational facilities of Inwood North touches and concerns the land.” Id.

 

entity and will typically divide the parcel of land into . . . (1) residential 

Lots that are to be separately owned by homeowners; (2) “Common 

Areas” that are to be owned by a Homeowners Association made up of 

and for the benefit of the Lot owners; and (3) streets to provide access 

by the owners to their Lots. The key distinguishing element of this type 

of development is that each Lot is a separate, exclusively-owned parcel 

of real property and [that] the Common Areas of land are owned by the 

Homeowners Association for the benefit of the Lot owners.

Gregory S. Cagle, HOA Assessment Liens: Everything You Need to Know to Figure Out Your 

Head From Your Assessment Lien, State Bar of Tex. Prof. Dev. Program, 34th Annual 

Advanced Real Estate Law Course 14, 8 (2012), https://ssjmlaw.com/wpcontent/uploads/2012/05/2010-Advanced-Real-Estate-Law-Article-HOA-Assessment

-Lien-Foreclosure.pdf.
16

Most important to our resolution of this appeal, the supreme court held that 

the lien existed prior to the time the owners took title to their lots:

The record discloses that the liens were contracted for several years 

before the homeowners took possession of their houses. Because the 

restrictions were placed on the land before it became the homestead of 

the parties, and because the restrictions contain valid contractual liens 

[that] run with the land, the homeowners were subject to the liens in 

question[,] and an order of foreclosure would have been proper.

Id. As support for its holding, the supreme court relied on an opinion from the 

Florida Supreme Court that even more explicitly held that an appropriately drafted 

declaration created a lien that related back to the time of its filing:

[T]he creation of the lien by acceptance of the deed relates back to the 

time of the filing of the declaration of restrictions. Thus, with regard to 

the time of attachment of the lien, this case is to be treated as if the 

respondents (homeowners) had taken title subject to a valid pre-existing 

lien. Since the acquisition of homestead status does not defeat prior 

liens . . . the lienor’s right prevails over the respondent’s homestead 

right.

Id. at 636 n.1 (quoting Bessemer v. Gersten, 381 So. 2d 1344, 1348 (Fla. 1980) (op. on 

re’g)).9

 9

As a bankruptcy court dealing with a condominium plan described the duties 

created by the covenants governing the common interest, the covenant is not a 

contract by which a homeowners’ association provides services to condo owners but 

is instead a burden on an owner’s interest in the common areas to maintain the 

property in which the owner holds an interest:

The covenants made in the [d]eclaration serve to benefit not a discrete 

third party . . . but rather all the owners in common, imposing a burden 

on each owner for the benefit of all owners. The homeowners’

association is nothing more than a mechanism by which this covenant is 

enforced . . . and can best be appreciated as an agent for all the owners 

in common. Each condominium owner finds her estate both 

burdened by the assessment obligation and benefited by the function 
17

Thus, the declarations in Inwood created not a potential lien but one that existed

from the time of the declaration’s filing.

D. The obligation to pay an assessment is also created by the Declaration.

We also read Inwood to hold that the continuing debt to pay an assessment is 

sufficient to underlay the lien and that the lien is not recreated each time an 

assessment is quantified. The debt that underlays the lien—the obligation to pay an 

assessment—is an equitable servitude that attaches to the property from the time of 

filing the declaration. As with other kind of debts, the precise amount of the debt 

relies on subsequent events. But that contingency does not mean that there is not a 

sufficient debt to support the existence of the lien from the time of filing the 

declaration.

The supreme court in Inwood described the obligation that attaches to a lot in a 

subdivision where covenants govern the ownership and management of the 

subdivision’s common areas. Specifically, “[t]he purchase of a lot in Inwood Homes 

carries with the purchase, as an inherent part of the property interest, the obligation to pay association 

fees for maintenance and ownership of common facilities and services. The remedy of foreclosure 

 

that the assessments serve (namely, the maintenance and preservation of 

the common areas, in which the debtor has an undivided interest 

inseparable from her interest in the condominium unit itself).

Beeter v. Tri-City Prop. Mgmt. Servs., Inc. (In re Beeter), 173 B.R. 108, 114–15 (Bankr. W.D.

Tex. 1994) (bold emphasis added).
18

is an inherent characteristic of the property right.” Id. at 636 (emphasis added). In 

addition to the theory that the declarations created a contractual lien, Inwood also 

viewed this mutual and reciprocal obligation of property owners in a development to 

pay assessments as an “an inherent property interest possessed by each [lot] 

purchaser.” Id. 

Inwood cited and appears to have rejected an argument that raised a variation of 

the argument Owner makes—that no lien exists to pay an assessment because the 

debt creating the obligation to pay did not arise until the assessment became due. The 

issue arose through Inwood’s citation of Johnson v. First Southern Properties, Inc., 687 

S.W.2d 399 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.). Id. Inwood cited 

Johnson for the proposition that principles governing a condominium scheme should 

apply equally to “pro rata common ownership in an association, mandated by the 

declaration.” Id. Johnson held that in the context of a condominium scheme, “the 

assessment lien constituted a valid pre-existing debt which would overcome the 

homestead claim.” 687 S.W.2d at 402. In a footnote, Inwood refenced an analysis of 

Johnson contained in a law review article. Inwood, 736 S.W.2d at 636 n.2 (citing Craig 

Florence, Note, Johnson v. First Southern Properties Inc: The Texas Homestead and 

Condominium Assessments, 38 Baylor L. Rev. 987 (1986)).

The cited law review article criticized Johnson’s holding that a preexisting debt,

and thus a lien, burdens the property because the assessment lien should not owe its 

existence to the filing of the declaration rather than to the issuance of an assessment. 
19

The criticism turned on the fact that a lien must be underlaid by a debt, and that no 

debt underlays any lien until an assessment is made; thus, the assessment lien did not 

preexist but rose as the phoenix each time the debt arose:

The question is reduced to whether the contract created a prior debt and 

lien. Although the court necessarily assumed the existence of a valid 

pre-existing debt, this conclusion is suspect. To have a security interest 

in the property, there must be a debt. In Johnson, there was no liability 

for future assessments until the assessments were determined by the 

homeowner’s council. Even when the assessments were made, they 

could be changed later. Therefore, there was not a debt for such 

assessments until after Johnson established his homestead in the 

condominium apartment. The court held that Johnson took [“]the 

apartment subject to the declaration, which declaration designated that the 

homeowner[s’] . . . council had an assessment lien.[”] It would appear, 

however, that since the assessment fee was not due until after Johnson 

established his homestead, then a valid lien did not arise until after the 

[homestead] was established. In that case, because the lien was not for 

purchase money, improvements, or taxes, it would be void.

38 Baylor L. Rev. at 995–96 (footnotes omitted).

The supreme court in Inwood held a homeowners’ association lien and the debt 

to pay an assessment existed from the time of filing the covenants and declaration in

the face of the Note’s criticism of Johnson that no lien could exist without an 

underlying debt. The supreme court was obviously aware of this conceptual challenge 

to its holding on the existence of a preexisting debt because it cited the article that 

contained the criticism. The Note’s criticism that no debt existed to underlie the lien 

established in the declaration did not deter the supreme court from its holding.

The article’s theory that no debt underlies the lien also revealed a 

misconception of the obligation to pay an assessment. Though sometimes described 
20

as a contract, the assessment obligation arises not as a result of an annual agreement 

for the owner to pay the fee to maintain the common areas but as an equitable 

servitude on the lot:

The homeowners’ association is not a discrete party performing 

maintenance services for a fee. It is merely the agent of each and every 

owner, a mechanism created as part and parcel of the equitable servitude 

[that] burdens the estate of each owner, functioning to assure that each 

owner receives the benefits that the equitable servitude was intended to 

confer. There need be no “contract” to impose this servitude on the 

property. It was imposed on the property when the estate in land was 

created pursuant to the documents that created the condominium 

regime, pursuant to state law. No consideration passed, no meeting of 

the minds took place (or needed to take place), incident to the creation 

of this equitable servitude imposed on the estate. The owners could not 

have avoided the terms of the equitable servitude when they purchased 

the property, even had they wanted to.

Beeter, 173 B.R. at 115. Thus, the ownership of the lot in the subdivision carries with 

it the obligation to pay the annual maintenance assessment, and that servitude creates

both the lien and the obligation to pay the assessments as they become due. 

In accordance with Inwood, we hold that the assessment lien exists from the 

time of the filing of a declaration rather than the time that an assessment was made. 

And the ownership of the lot carries the ever-present obligation to pay the 

assessments. Though we agree that the dollar amount of the annual maintenance

assessment is not set in the Declaration, that fact does not undermine the obligation 

to pay the assessment as a covenant running with the land. Indeed, it appears

impractical for the Declaration to set the amount of an assessment that would 

respond to the need of the subdivision fourteen years after its filing. But that does 
21

not mean the obligation to pay the debt as it arose did not exist upon the filing of the 

Declaration.

Also, it is hardly unusual for a lien to secure a debt that has not yet been 

quantified or is contingent on a future event. For example, a lien may secure the 

payment of future taxes by the mortgagee on behalf of the mortgagor. See, e.g., Smart 

v. Tower Land & Inv. Co., 597 S.W.2d 333, 336 (Tex. 1980) (“Many Texas cases have 

held that if a mortgagor fails to pay taxes he has promised to pay, the mortgagee may 

treat the amount owed for taxes as part of the mortgage debt.”); Vista Dev. Joint 

Venture II v. Pac. Mut. Life Ins. Co., 822 S.W.2d 305, 307–08 (Tex. App.—Houston [1st 

Dist.] 1992, writ denied) (holding that liability for unpaid taxes accruing on property 

may be secured by both a lien and a personal liability of maker of note). Further, a 

lien may contain a dragnet clause that secures future but not yet quantified advances 

of debt. 2 James N. Johnson, Texas Practice Guide: Real Estate Transactions § 10:21

(Sept. 2018) (“A ‘dragnet’ clause in a mortgage or deed of trust refers to a provision 

creating a lien securing all indebtedness of the mortgagor to the mortgagee, whether 

past or future, prior to discharge of the lien.”).10

 10In fact, the court of appeals’ opinion in Inwood recognized that “[a]n owner of 

real property may, by executing a written instrument, create a lien on his property to secure 

payment of future advances.” Inwood N. Homeowners’ Ass’n, Inc. v. Pamilar, 707 S.W.2d 

125, 126 (Tex. App.—Houston [1st Dist.] 1986) (op. on reh’g) (citing First Nat’l Bank 

of Corsicana v. Zarafonetis, 15 S.W.2d 155, 158 (Tex. App.—Waco 1929, writ ref’d)),

rev’d, 736 S.W.2d 632 (Tex. 1987). The court of appeals held the covenants governing 

the property did not create a lien but only an unsecured obligation to pay the 
22

And one court interpreting the Bankruptcy Code reasoned that a contingent, 

unmatured obligation to pay an assessment constituted a debt as defined by 

bankruptcy law (though it described the obligation as a contract and dealt with 

whether the debt was a pre- or post-petition debt):

Under those broad definitions of claim and debt, the Rostecks had a 

debt for future condominium assessments when they filed their 

bankruptcy petition. It is true that the Rostecks did not actually owe money to 

Old Willow for assessments beyond those Old Willow had assessed before their 

bankruptcy. But the condominium declaration is a contract, and by entering that 

contract[,] the Rostecks agreed to pay Old Willow any assessments it might levy. 

Whether and how much the Rostecks would have to pay in the future 

were uncertain, depending upon, among other things, whether the 

Rostecks continued to own the condominium and whether Old Willow 

actually levied assessments. But, as we have seen, contingent, 

unmatured, unliquidated, and unfixed debts are still debts. “Contingent” 

means: “‘Possible but not assured; doubtful or uncertain; conditioned 

upon some future event which is itself uncertain or questionable . . . . 

[I]t implies that no present interest exists, and that whether such interest 

or right will ever exist depends upon a future uncertain event.’” This 

definition describes perfectly the Rostecks’ obligation for future assessments: they 

agreed to make payments, but whether and how much they actually had to pay 

depended on future uncertain events. The Rostecks thus had a debt for the future 

assessments under the Bankruptcy Code’s broad definition of debt.

Matter of Rosteck, 899 F.2d 694, 696–97 (7th Cir. 1990) (emphasis added).

Thus, the Texas Supreme Court, general principles of mortgage law, and 

bankruptcy courts agree that a contingent debt may be sufficient to support the 

general existence of a lien and to secure the specific payment of a homeowners’ 

association’s assessments. We now answer the question that we began with. Both the 

 

assessments. Id. The supreme court obviously rejected the holding that no lien could 

secure the obligation to pay future advances.
23

obligation to pay the assessment and the lien to secure the ever-present obligation to 

pay it do circle over the property rather than spring into existence each year. Contrary 

to Owner’s argument, an assessment is a debt that exists before the amount of the 

assessment is set, and the existence of the lien to secure that debt is not dependent on 

the amount of the assessment being set by the Board.

E. The Declaration creates both the obligation to pay assessments and the lien 

to secure that obligation.

We see nothing in the Declaration to suggest that it does not create the 

preexisting lien and continuing obligation to pay assessments described in Inwood. The 

Declaration uses the present-tense to state that the lien it creates exists from the time 

of its filing. Nor do we see the notice that is the linchpin of Owner’s suit as 

performing any other function than meeting the practical need of informing a 

homeowner of the amount of the annual maintenance assessment. Also, many of the 

other events that Owner suggests are preconditions to the effectiveness of the lien are 

established by the terms of the Declaration and are not contingent on the terms of the 

notice. These include when an assessment becomes delinquent.

Obviously, different declarations may have different terms, and whether a 

declaration creates a contractual lien from the time of its filing depends on its specific 

provisions. See Kenneth D. Eichner, P.C. v. Dominguez, No. 14-16-00192-CV, 2017 WL 

2561334, at *6 (Tex. App.—Houston [14th Dist.] June 13, 2017, no pet.) (mem. op.)

(“[W]e must look to the Association’s declaration in the instant case to determine 
24

whether the assessment lien attached when the declaration was filed in 1978 or when 

Dominguez defaulted on the monthly assessments.”); Red Rock Props. 2005, Ltd. v. 

Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *3 (Tex. App.—

Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (“[W]e look to the 

condominium declaration in the instant case to determine whether the assessment lien 

attached when the Declaration was filed in 1984 or when the Barbours defaulted on

the monthly assessments in November 2004.”).

The provisions that we outline next demonstrate that the Declaration at issue 

provides for a lien that had its inception at the time the Declaration was filed and 

continued as a charge on the land. And our interpretive task is limited to a review of 

the Declaration’s terms because Owner concedes that he took title to his lot burdened 

with the Declaration’s covenants and because the deed to his lot demonstrates that he 

did.

11 Further, the parties have cited no statutory provision that impacts the question

of whether and how the Declaration creates an assessment lien.12

 11The deed conveying the lot to Owner states: “This Deed is executed, 

delivered[,] and accepted subject to all . . . covenants, restrictions common to the 

platted subdivision in which said real property is located . . . .”

12Unlike condominiums, homeowners’ associations do not have a statutory 

framework. See Tex. Prop. Code Ann. §§ 82.001–.164 (Uniform Condominium Act). 

Although there is a chapter in the Texas Property Code governing the conduct of a 

homeowners’ association in some circumstances, none of the provisions of that 

chapter provide instruction on how to interpret the provisions of the Declaration 

here. See, e.g., Tex. Prop. Code Ann. § 209.003 (applicability of Texas Residential 

Property Owners’ Protection Act), § 209.006 (requiring HOA notice before 

enforcement), § 209.009 (prohibiting certain foreclosure sales based on certain 
25

The Declaration creates the HOA for the purpose of “(i) maintaining and 

administering the common properties and facilities, (ii) administering and enforcing 

the covenants and restrictions contained herein, and (iii) collecting and disbursing the 

assessments and charges hereinafter created.” The Declaration requires every owner 

of a lot in the Griffin Parc subdivision to be a member of the HOA. Membership in 

the HOA grants the owner “a non-exclusive right and easement of use and enjoyment 

in and to” the common area of the development.13

Section 5.01 of the Declaration describes an owner’s liability to pay assessments

and how that debt is a charge on the land and “a continuing lien”:

Declarant, for each Lot owned by it, hereby covenants and agrees, and 

each purchaser of any Lot by acceptance of a deed or other conveyance 

document creating in such Owner the interest required to be deemed an 

Owner, whether or not it shall be so expressed in any such deed or other 

conveyance document, shall be deemed to covenant and agree . . . to pay 

the Association . . . annual maintenance assessments or charges (as 

specified in Section 5.04 hereof), such assessments to be fixed, 

established[,] and collected from time to time as herein provided . . . . 

The annual maintenance, special capital, and special individual assessments 

described in this Section 5.01 (hereinafter, the “Assessment” or the 

“Assessments,” together with interest thereon, attorneys’ fees, court 

costs[,] and other costs of collection thereof, as herein provided, shall be a 

charge on the land and shall be a continuing lien upon each Lot against which any 

such Assessment is made. [Emphasis in italics added.]

The assessment pays for managing, improving, and maintaining the common areas.

 

assessments), § 209.0091 (providing owner an opportunity to cure), § 209.0092 

(requiring judicial foreclosure).

13No one disputes that the lot at issue is a “Lot” as defined in the Declaration 

or that Owner is an “Owner” as defined in the Declaration.
26

Section 5.08 of the Declaration does require the HOA’s Board of Directors to 

“fix the date of commencement and the amount of the annual maintenance 

assessment against each Lot.” In turn, that section requires a “[w]ritten notice of all 

assessments” to be sent to lot owners. But section 5.08 is also clear that the failure to 

fix a new assessment does not relieve a lot owner of the obligation created by the 

Declaration to pay assessments:

(c) The omission of the Board of Directors to fix the assessments within 

the time period set forth above for any year shall not be deemed a waiver 

or modification in any respect of the provisions of this Declaration, or a 

release of any Owner from the obligation to pay the assessments, or any installment 

thereof for that or any subsequent year, but the assessment fixed for the 

preceding year shall continue until a new assessment is fixed. [Emphasis 

added.]

The consequences of the failure to pay an assessment are established by section 

5.09 of the Declaration. Section 5.09(a) sets the date that an assessment becomes 

delinquent by stating that “[a]ny Assessment, or installment thereof, which is not paid 

in full when due shall be delinquent on the day following the due date (herein 

‘delinquency date’) as specified in the notice of such Assessment.”

Section 5.09(b) of the Declaration carries forward the theme that liability for 

the assessment is a continuing debt and that the Declaration creates a lien to secure 

that debt:

The unpaid amount of any Assessment not paid by the delinquency date 

is and shall be, together with the interest thereon as provided in Section 

5.09(a) hereof and the cost of collection thereof, including reasonable 

attorneys’ fees, a continuing debt, secured by, and there is hereby impressed upon 
27

and created against each Lot, a lien and charge on the Lot of the non-paying 

Owner . . . .

To evidence any lien, the Association shall prepare a written 

notice of lien setting forth [certain information]. [Emphasis in italics 

added.]

There is no controversy that the word “hereby” is a reference to the Declaration. 

Owner’s brief “concedes the point of grammar and verb usage, ‘there is hereby 

impressed upon and created against each lot, a lien[]’ is present tense. ‘Present tense’

as in ‘2001.’ This shows that a lien did indeed arise seventeen years ago.”

Section 5.09(c) reiterates the theme that the Declaration causes a lien to attach 

to each lot in the subdivision on the date of its recordation: “The lien securing the 

payment of the Assessments shall attach to the Lot belonging to such non-paying 

Owner upon recordation of this Declaration with the priority set forth in this 

Section.”

Section 5.10 provides for the priority of the assessment lien relative to other 

liens that may attach to lots in the subdivision after the filing of the Declaration:

The lien securing the payment of the Assessments shall be subordinate 

and inferior to the lien of any bona fide first lien mortgage or deed of 

trust now or hereafter recorded against any Lot; provided, however, that 

such subordination shall apply only to the Assessments [that] have 

become due and payable prior to a sale, whether public or private, of 

such property pursuant to the terms and conditions of any such 

mortgage or deed of trust. Such sale shall not relieve the new Owner of 

such Lot from liability for the amount of any Assessment thereafter 

becoming due nor from the lien securing the payment of any subsequent 

assessment.
28

After a review of its terms, we interpret the Declaration to carry out the 

standard practice of a declaration to establish and attach a lien to secure the payment

of future assessments and to establish an obligation to pay the assessment that runs 

with the land. Certainly, the Declaration provides for notice. That notice only 

quantifies the amount of the preexisting debt that runs with the land and to inform 

the lot owners of that amount. It does not create the debt.

F. Because the Declaration, not the notice of the assessment amount, created 

the lien and debt, the HOA did not create or enforce a lien in violation of 

section 362(a)(4) by sending the notice of the 2016 annual maintenance 

assessment.

Thus, we come full circle to the Bankruptcy Code and ask if the notice of the 

amount of the annual maintenance assessment—sent while the Lot was property of 

the Owner’s bankruptcy estate—created or enforced a lien and thereby violated 

section 362(a)(4). The sending of the notice did not violate the stay.

The notice was not a precondition to the lien or the obligation to pay the 

annual maintenance assessment. Both were created upon the filing of the 

Declaration. Under Inwood, the lien “existed” from the time of the filing of the 

Declaration. The supreme court did not hold that the lien came into existence with 

each assessment but existed from the time of the filing of the declaration. And the 

obligation to pay the annual maintenance assessment was not the result of the notice 

but a continuing debt—or as some term it, an equitable servitude—that ran with the 

land and was incident to the ownership of the lot. The notice of assessment sent by 
29

the HOA created neither the lien nor the debt. Nor did the notice set the date of 

delinquency for the assessment; again, the Declaration set that date. 

In the final analysis, a lien that already exists cannot be created in violation of 

section 362(a)(4). One example that we gave earlier of a lien that secures a future 

contingent debt was a future advance made under a dragnet clause, and federal courts 

hold that adding debt to a lien that already exists does not create a lien in violation of 

section 362(a)(4). See Beeler v. Jewell (In re Stanton), 303 F.3d 939, 942–43 (9th Cir. 2002)

(concluding that lender’s advance of funds pursuant to future advance clause did not 

“create” new lien each time an advance was made). Further, performing an act that 

continues the existence of a lien that is already in place does not create a lien. See 

Jacobs v. Brain Power Am., Inc., Nos. 2:15-cv-00533-JAD, 2:15-cv-00911-JAD, 2:15-cv00912-JAD, 2017 WL 834978, at *3 (D. Nev. Mar. 2, 2017) (order) (“The automatic 

stay is a creature of the bankruptcy code. It prevents a creditor from ‘creat[ing], 

perfect[ing], or enforc[ing]’ a lien, and it prohibits a creditor from ‘enforcement’

efforts against the debtor. What is notably missing is a prohibition on renewing an 

existing judgment.” (citation omitted)).

The trial court’s judgment also mentions one of the other prohibited acts of 

section 362(a)(4), which is the enforcement of a lien. It does not find that the HOA 

enforced its lien but rather that it had allegedly put itself in the position to enforce its 

lien by giving notice that was “necessary to create an assessment lien which 

assessment lien was essential to [the HOA’s] enforcement action.”
30

We agree that the action of the HOA by sending notice of the 2016 assessment 

was not an act of enforcement under section 362(a)(4). The definition of the word 

“enforcement” in section 362(a)(4) does not embrace the HOA’s setting and giving 

notice of the assessment amount. See Houston Pipeline, 213 S.W.3d at 427 (“A lien ‘is 

enforced by affirmative action such as filing lawsuits, foreclosing, and filing a notice 

of lis pendens.’” (quoting Kocurek v. Arnold (In re Thurman), 163 B.R. 95, 100 (Bankr.

W.D. Tex. 1994))). The record establishes that the HOA did not file a notice of the 

assessment lien or foreclose on that lien until after Owner received his discharge and

after the automatic stay was no longer in effect.

Accordingly, we sustain the HOA’s sole issue.

VI. Conclusion

Having sustained the HOA’s sole issue, we reverse the judgment of the trial 

court and render judgment that the HOA’s sending of the notice of the 2016 annual 

maintenance assessment did not violate the provisions of section 362(a)(4) of the 

United States Bankruptcy Code.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: April 25, 2019