Become a Member: JOIN SFPMA TODAY   LogIn / Register: LOGIN/REGISTER

SFPMA Industry Articles | news, legal updates, events & education! 

Find Blog Articles for Florida’s Condo, HOA and the Management Industry. 

OWE MONEY? YOU MAY NOT BE ALLOWED TO RUN FOR THE BOARD By Eric Glazer, Esq.

OWE MONEY? YOU MAY NOT BE ALLOWED TO RUN FOR THE BOARD By Eric Glazer, Esq.

OWE MONEY?  YOU MAY NOT BE ALLOWED TO RUN FOR THE BOARD

By Eric Glazer, Esq.

I feel like I handled a thousand annual meetings in the last month, flying from one to the other.  When running the meetings, and depending upon whether the association is a condominium or HOA, it is important to know if the person running for the board, or even the winner of the election, is eligible to serve because they owe money to the association.

Let’s start with condominiums first, Florida Statute 718.112 (2)(d) states:

A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any assessment due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot.

So, in a condominium, the person’s eligibility to run and initially serve on the board is decided when the owner submits their notice to be a candidate, and that is no less than 40 days before the election.  If at that time,  the owner is delinquent in any assessment their name cannot be printed on the ballot and sent to the unit owners.  On the night of the election the association need not worry if anyone is delinquent and cannot serve because their name was already excluded from the ballot.

The law in a Florida HOA is much different.  Florida Statute 720.306(9)(b) states:

A person who is delinquent in the payment of any fee, fine, or other monetary obligation to the association on the day that he or she could last nominate himself or herself or be nominated for the board may not seek election to the board, and his or her name shall not be listed on the ballot. 

Lots of differences between the two statutes here.  In a condominium, you can only be prevented from being placed on the ballot if you owe an assessment.  In an HOA, your name can be prevented from being placed on the ballot if you owe any fee, fine or other monetary obligation to the association; a far more restrictive provision in an HOA.

In addition, remember that in most HOAs, nominations are taken from the floor on the night of the election.  That is the “day that he or she could last nominate himself or herself or be nominated for the board.”  Therefore, on the night of the election, we need to know if any of the proposed nominees owe any fee, fine or other monetary obligation.  If so, their name cannot be accepted into nomination.  They cannot run.

ONCE A DIRECTOR BECOMES 90 DAYS DELINQUENT

The Condominium Act states:

718.112: Director or officer delinquencies.—A director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.

The Homeowners Association Act states:

720.306(9)(b) A person serving as a board member who becomes more than 90 days delinquent in the payment of any fee, fine, or other monetary obligation to the association shall be deemed to have abandoned his or her seat on the board, creating a vacancy on the board to be filled according to law.

 

Tags: , ,
Legal Morsel by Robert Kaye: “Federal Court Identifies Potential Collection Issue for Community Associations in Florida”.

Legal Morsel by Robert Kaye: “Federal Court Identifies Potential Collection Issue for Community Associations in Florida”.

Federal Court Identifies Potential Collection Issue for Community Associations in Florida

Community association operations rely upon the timely and full payment of all assessments by all of the owners. One of the mechanisms that Florida law provides to put associations in a stronger position when an owner becomes delinquent is the “secured interest” of the association in the unpaid assessments by way of its ongoing lien against the unit or lot for the unpaid assessments. This secured interest puts the claim of the association at a higher priority than most other claims, other than a first mortgage or unpaid property taxes. However, a recent decision in the United States Bankruptcy Court for the Southern District of Florida, In re: Adam, Case No.: 22-10140-MAM, September 23, 2022, has cast a potential cloud on that secured interest.

In the In re Adam case, the Association previously obtained a judgment of foreclosure for over $76,000, which was considered as a secured interest by the Court.  The Association was also claiming an additional $36,558 which came due after the judgment was entered.  The owners were asking the Court to decide that the $36,000 was not secured and therefore uncollectible in the bankruptcy (or at least not fully collectible).

In deciding whether certain association claims were secured and collectible in the bankruptcy setting, the Court undertook an analysis of Florida law on the subject.  The Court noted that both the Florida Condominium Act (Chapter 718 F.S.) and the Homeowner’s Association Act (Chapter 720 F.S.) currently contain express provisions that identify that the lien of the association is effective from the original recording of the declaration (with the added requirement in HOA’s that the declaration specifically expresses this lien right).  However, the Court also points out that the Condominium Act was amended in 1992 to provide for this effective date.  (The Homeowner’s Association Act was amended to provide for it in 2008.)  Prior to these amendments, these Statutes provided for the effective date of the lien to be when it was recorded in the public records of the county.  The analysis of the Court required it to consider whether the current version of the Statute applies to the situation or whether an earlier version of the Statute is the controlling authority.  (This case involved a condominium so only the Condominium Act was considered in the decision.)

To make that determination, the Court applied the principles of the seminal case of Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), which require declarations to contain the specific phrase “as amended from time to time” when identifying the Statute that governs the documents in order for the current version of the Statute to apply.  This is because Statutes are not retroactive in their application unless the legislature expressly makes them so in the Statute itself.  Both the U.S. and Florida Constitutions do not allow for the State to make a law that infringes upon the vested rights in an existing contract (which would be the declaration).  As a result, the contract (declaration) would need to have the specific “as amended from time to time” language (often called “Kaufman” language) to automatically incorporate changes to the Statute that is not otherwise retroactive.

When the Court reviewed the governing documents, it noted that they were from 1987 and did not have the Kaufman language.  As such, the Court held that the provisions of the declaration were the same as the Statute in 1987, which provided that the lien was effective only upon being recorded in the public records of the county.  Since the Association did not file another lien for the amount being claimed subsequent to the foreclosure judgment, the Court concluded that this portion was not secured.  In the bankruptcy setting, this meant that the Association would likely be unable to recover most, if not all of this claim from the Debtors, Mr. and Ms. Adam.

While this issue may be most relevant to associations when dealing with a case in bankruptcy, it is possible that it could also be raised in state court foreclosure cases under certain circumstances.  It is also important to note that this Bankruptcy Court did not include a significant issue in the analysis regarding the Statute at issue, that being whether or not the statutory provision was “substantive” or “procedural”, as those terms apply to this situation, which could have led to a different result.  (This portion of the legal analysis is quite technical and beyond the scope of this article.)

For communities whose declarations were recorded prior to the statutory changes described above, the first step in protecting the interests of the association is to review the documents to determine whether Kaufman language is already in them.  If not, the board may wish to consider proposing an amendment to the owners to change the documents to include this language, if not for the entire declaration, then at least for the timing of the effectiveness of the lien of the association.  Having qualified legal counsel review these issues in the documents is a strong business practice.

 

 

Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Most of our attorneys are Board Certified in Condominium and Planned Development Law. The associates of Kaye Bender Rembaum establish relationships with clients to understand their needs and goals. Kaye Bender Rembaum assists clients in all matters of Association representation including, but not limited to, collection of assessments, contract negotiation, covenant review and amendment, covenant enforcement and construction defect claims. Kaye Bender Rembaum also keeps clients up-to-date on new developments in the law and how they are personally affected by them. Kaye Bender Rembaum provides prompt, effective, high quality, cost-efficient and understandable legal advice and services to a diverse client base. Associates strive to help clients operate and administer their communities better and to educate them on their responsibilities and duties under Florida law and their governing community documents. Robert Kaye, Michael Bender and Jeff Rembaum are industry leaders who are often sought out by public policy makers and the media for advice and commentary on community association law. Offices in Broward, Palm Beach, Orange and Hillsborough Counties, as well as Miami-Dade by appointment. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Thank you for your interest in Kaye Bender Rembaum.

Website
https://kbrlegal.com/
Phone
Tags:
If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims. by Cohen Law Group.

If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims. by Cohen Law Group.

Cohen Law Group would like to remind all Property Managers and CAMs that our firm has handled thousands and thousands of property damage insurance claims in Florida. We have decades of experience handling hurricane claims that have been denied, delayed, or reduced.

If you are unsure if your property sustained damage as a result of Hurricane Idalia you should ask for an inspection by a qualified contractor, estimator or building inspector to assess whether hurricane-force winds damaged or compromised the roofing system and building envelope. Many companies offer this initial inspection free of charge. Given the complexities of a large loss claim, consider consulting with an attorney experienced in handling commercial insurance claims for condominiums and homeowner’s associations.

 

We can connect you with top professionals in the industry to evaluate hurricane damage and we can assist you with handling an insurance claim the right way– today.

 

Here’s more information on how we can help you:

Cohen Law Group is certified through the state of Florida for Property Manager and CAM Continuing Education Credits/Classes. We have a one to three-hour CE class called “A CAMs/Property Managers Guide to Property Damage Insurance Claims”

We can schedule a free lunch and learn with your CAMs and will provide an overview of our suggestions and strategies as well as some examples of our vast experience with Residential Property Damage and Commercial Large Loss.

If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims.

Please call us today at 850-318-7474 

Here are some tips for property owners

immediately after a hurricane:

You have 1 year from the date of loss to report the claim. Please do not hesitate in reporting the claim immediately as you are aware there is storm damage. Believing the damages are below your deductible is not a defense to this and the insurance company will use every day you wait against you later.

Thoroughly document all emergency repairs before and after they are completed. Insurance companies will try to get out of paying for these services if they believe they do not have sufficient information.

If you are displaced from your home or property, please keep all invoices and receipts showing costs that you incur. Likewise, if you have any damaged personal property, please take photographs of it before you throw it away.

Insurance companies cannot cancel your policy while you have an open claim. You should speak to an attorney to understand your rights. Insurance companies will routinely request that you sign documents and give statements to them that can and will be used against you later.

489.147 Prohibited property insurance practices.—

(1) As used in this section, the term:

(a) “Prohibited advertisement” means any written or electronic communication by a contractor which encourages, instructs, or induces a consumer to contact a contractor or public adjuster for the purpose of making an insurance claim for roof damage, if such communication does not state in a font size of at least 12 points and at least half as large as the largest font size used in the communication that:

1. The consumer is responsible for payment of any insurance deductible;

2. It is insurance fraud punishable as a felony of the third degree for a contractor to knowingly or willfully, and with intent to injure, defraud, or deceive, pay, waive, or rebate all or part of an insurance deductible applicable to payment to the contractor for repairs to a property covered by a property insurance policy; and

3. It is insurance fraud punishable as a felony of the third degree to intentionally file an insurance claim containing any false, incomplete, or misleading information.

Harvey V. Cohen, President

Harvey Cohen Signature

     

At Cohen Law Group, It’s About Justice!

It’s more than a slogan, it’s our firm’s mantra. We are zealous in protecting your rights. We offer 24-hour availability through our answering service. Call us today.

(850)318-7474

Members of  SFPMA – https://sfpma.com/listing/cohen-law-group/

 

Tags: , , ,
Have you heard about our “Collect 4 Free” Program? Find out how it protects and benefits your Community Association by Katzman Chandler

Have you heard about our “Collect 4 Free” Program? Find out how it protects and benefits your Community Association by Katzman Chandler

  • Posted: Apr 03, 2023
  • By:
  • Comments: 0

Have you heard about our “Collect 4 Free” Program? Find out how it protects and benefits your Community Association

by Katzman Chandler

SAVE YOUR ASSOCIATION MONEY & ENSURE FINANCIAL STABILITY.

Katzman Chandler’s Collect 4 Free Program

We guarantee, by written contract, that your Association will NEVER receive an invoice for Costs or Legal Fees advanced and/or incurred by our Law Firm in providing delinquent account collection services under our “COLLECT 4 FREE” Delinquent Account Collection Option.

Contact us today, and let us show you how you can immediately reduce the potential future monetary shortfall in your Association’s budget resulting from owner delinquency, as well as ensure a healthy financial future for your Community…

COLLECT 4 FREE!Katzman Chandler’s “COLLECT 4 FREE” Delinquent Account Collection Option is a truly unique program that guarantees, in writing, that your Association will NEVER receive an invoice for Costs or Legal Fees incurred by our Law Firm in providing delinquent account collection services.

Katzman Chandler’s “COLLECT 4 FREE” Delinquent Account Collection Option promotes efficiency in your Association’s operations by allowing your Community to timely and effectively pursue delinquent accounts and quickly collect delinquent assessments owed, rather than unnecessarily carrying delinquent owner debt on the Association’s books for extended periods of time.

Katzman Chandler’s “COLLECT 4 FREE” Delinquent Account Collection Option provides your Community with the ability to pursue delinquent accounts while avoiding the potential Risk, Liability and/or Financial Exposure to your Association for the payment of Costs and Legal Fees traditionally associated with Community Association Collection and Foreclosure actions.

Why Collect 4 Free?

Engaging Katzman Chandler and electing to take advantage of our “COLLECT 4 FREE” Delinquent Account Collection Option makes complete financial sense for nearly all qualifying Community Associations, including yours. Most Associations qualify. Call us today to confirm that yours does!

We are so confident in our ability to successfully collect upon your newly delinquent accounts, that we are willing to shift the ultimate financial responsibility for the Costs and Legal Fees incurred in the process from your Community to our Law Firm.

Our confidence in this regard comes from our depth of experience in not only handling delinquent account collection, but forecasting trends in delinquent account collection.

Katzman Chandler’s attorneys and staff have successfully resolved tens of thousands of delinquent assessment accounts on behalf of Community Associations over the past two decades, and welcome the opportunity to collect your Community’s delinquent accounts as well – with COLLECT 4 FREE!

If you are a new addition to the Katzman Chandler family of clients, and have delinquent accounts in collection with your prior attorney, Katzman Chandler can take over your Association’s existing/aged collection files and pursue them under a full advancement of Costs and Legal Fees option.

In addition to the obvious benefits of our “COLLECT 4 FREE”, we offer robust online status reports available 24/7, paperless communications sent automatically via email and an owner website portal to facilitate communication, expedite payoffs and obtain quick settlements of delinquent accounts.

Contact us today:

Schedule a Complimentary Consultation

“WE WANT TO BE COMMITTED TO YOUR COMMUNITY”

by clicking the following link: https://bit.ly/3ZHoWOY

Tags: , ,
The Start of the Fairy Tale: Creation of the Homeowner Assistance Fund by Axela-Tech

The Start of the Fairy Tale: Creation of the Homeowner Assistance Fund by Axela-Tech

The Start of the Fairy Tale: Creation of the Homeowner Assistance Fund 

by, Dee Rowe, CACM, Contributing Author

Once upon a time, benevolent Prince Sanders was afraid that people would lose their homes because they were unable to pay their mortgages or HOA fees. You see, a nasty respiratory disease was ravaging the kingdom and all surrounding kingdoms. Workers not deemed essential were forced out of work to limit the spread of the disease. The price of essential goods and services skyrocketed. Even once a “return to work” was announced, for many business owners and employees there was no work to return to. The kingdom was in crisis.

Since he was Chairman of the kingdom’s Senate Budget Committee, he and 11 others authored theAmerican Rescue Relief Act, which included a Homeowner Assistance Fund designed to keep those people from losing their homes and keep their public utility services active. The problem was, nobody told the homeowners, or those responsible for the communities they lived in.

Meanwhile, in a Far-Off Corner of the Kingdom

Mary was contrary, and could you blame her? She was a single mother with three small mouths to feed. Her ex-husband ran off with Sally years ago and now lived in a cottage by the sea selling seashells. That left Mary to care for the gardens ​of silver bells, cockleshells, and primroses all in a row. There was a time before the pandemic when her business thrived. Weddings were large, formal affairs, and nobody’s flowers were prettier than Mary’s. Brides paid a pretty penny for her services. But now weddings were smaller and more intimate. Because everybody’s budgets were stretched tight, brides cut expenses wherever they could. That included Mary’s flowers.

With the sun sinking on the horizon, Mary put the gardening tools in the shed and trudged into her small house. The children would be hungry, and someone had to feed them. Opening the nearly bare cupboard, she groaned. Once again, they would be eating beans and rice. As she measured the rice, her hand scraped the bottom of the barrel. Even beans and rice would soon be a luxury. Forcing a brave face, she served the children dinner and busied herself with chores while they ate. She ate their leftovers to make sure they got enough. Her stomach growled and grumbled, but she was used to ignoring that. She’d been doing so for a couple of years, ever since the virus started spreading.

Before she put the little ones to bed, she walked to the end of the driveway to get the day’s mail. Inside the mailbox was another notice from the HOA about her missed payments. Tears welled up in her eyes. How was she supposed to pay when there wasn’t enough to eat, and every penny went toward keeping the bank from taking her home? Now the association was threatening to take her home too. What would they do then? She wasn’t eligible for bankruptcy, because she’d had to file for one after her divorce.

Hands shaking, she placed the notice on the kitchen table and tucked her children into bed, noticing as she did so that all their nightclothes were threadbare and too small. Once she was back in the kitchen, she picked up the notice and read it again. “Due to the non-payment of assessments, your account has been referred to an outside agency for collections. Please contact them at once to avoid foreclosure.”

This time, tears did more than well up, they spilled down her cheeks and left spots on the table. With her head in her hands, she sobbed into the night until she fell asleep right there in the kitchen. Her dreams were troubled and chaotic, with visions of fire-breathing dragons scorching her home and beautiful gardens to the ground.

They Aren’t Dragons, They’re Heroes

The next morning, after the children ate their oatmeal and headed off to school, Mary called the collection company the HOA referred her case to. She braced herself for battle, recalling the fire-breathing dragons from last night’s anxiety-fueled dreams. Much to her surprise, that mental armor turned out to be unnecessary.

S​he spoke with a friendly and helpful representative from Axela Technologies, who was sympathetic when Mary described her financial position. The representative suggested that Mary try applying for something called the Homeowner Assistance Fund (HAF) because an online map showed that her part of the kingdom may have funds available to cover the mortgage, utility costs, and even HOA fees since her hardship was caused by the pandemic and started after January 21, 2020. The helpful rep also arranged it so Mary would not lose her home while waiting for a decision from the HAF. She was so relieved she began to cry over the phone because she felt hope for the first time in years. “You’re my hero”, she told the Axela employee.

I​t Isn’t a Fairy Tale but a Well-Kept Secret

As she worked in her gardens that day, Mary wondered why she’d never heard of the HAF before. There were probably others like her; hardworking people who had no savings or credit to see them through when the pandemic shut the kingdom down. People who had spent the years since the return to work trying to find work or customers. People who were desperate to keep the homes that they loved and that kept their families safe and warm. Good people who wanted to pay their HOA fees but had to choose between that and feeding their children.

After waiting as patiently as she could, Mary got an answer from the HAF. Hands trembling, she opened it and read the decision over the phone to that helpful representative from Axela Technologies she had first spoken to. “Your application has been approved.” Once again, she was crying, this time tears of joy.

Later that day, Mary wrote a letter to the board of directors of the HOA thanking them for working with anethical company like Axela Technologies, and not a predatory collection service. That letter was the first communication the board received from her that wasn’t contrary.

For a real-life collection fairy tale like this, contact us at Axela Technologies today. We offer creative solutions, not threats and ultimatums.

 

Tags: , ,
FREE WEBINAR: TOPS, Mitchell Drimmer and Patrick Hixon of Axela Technologies to talk about managing transparency throughout the association payments process, from first touch to collections

FREE WEBINAR: TOPS, Mitchell Drimmer and Patrick Hixon of Axela Technologies to talk about managing transparency throughout the association payments process, from first touch to collections

FREE WEBINAR: TOPS, Mitchell Drimmer and Patrick Hixon of Axela Technologies to talk about managing transparency throughout the association payments process, from first touch to collections

Remember, we’re talking collections today!

Join the Axela Technologies crew and the wonderful team over at TOPS Software, where we’ll be discussing managing and maintaining transparency throughout the collections process, from start to finish!

Thursday, March 2nd @ 2PM EST!

Save your seat and register now:
https://bit.ly/3xHTPXD

FREE WEBINAR: We’re teaming up with Mitchell Drimmer and Patrick Hixon of Axela Technologies to talk about managing transparency throughout the association payments process, from first touch to collections. Join us LIVE on March 2nd at 2pm EST.

Tags: ,
Why Money Judgments Don’t Work for Assessment – by Mitch Drimmer

Why Money Judgments Don’t Work for Assessment – by Mitch Drimmer

Why Money Judgments Don’t Work for Assessment

Mitch Drimmer of AXELA-TECH

Money judgments are not an effective way for an HOA to collect delinquencies. It’s often more effective for an HOA to work with delinquent homeowners to find a resolution that is mutually beneficial. This may involve setting up a payment plan or finding alternative ways to resolve the delinquency.

Foreclosure is a legal process in which an HOA takes possession of a delinquent owner’s property. The HOA then sells it to recover the money owed. While foreclosure should be a last resort for collecting past-due assessments, pursuing a foreclosure may be a better option than seeking a money judgment. Here’s why:

  1. Why get a judgment on a secured debt? The property is the collateral. Why get a money judgment and then go to court again to get a writ to collect?
  1. Recovery: Ever try to garnish wages or repossess assets to collect on a judgment? It’s not easy. People can, and often do, evade efforts to collect. You already have the best collateral for the debt – the property itself.
  2. Difficulty in enforcing judgments: Obtaining a judgment is only the first step in the collection process. The HOA must then take steps to enforce the judgment, which can be time-consuming and costly. This may involve garnishing wages, levying bank accounts, or seizing assets. When it comes to collecting,  you are on your own.
  3. Limited recovery: Even if a judgment is obtained, there’s no guarantee that the delinquent homeowner will be able to pay the amount owed. If the homeowner is unable to pay, the HOA may not be able to recover the full amount of the judgment.  The money spent to get the judgment was wasted. Negative impact on community: Pursuing a judgment against a delinquent homeowner may create tension and conflict within the community. This can be more difficult in a small community where residents may have close personal relationships. If the community has an ongoing wage garnishment on a resident, the animosity may drag on for years.

The overwhelming majority of the time, owners facing foreclosure pay before a sale occurs.  Foreclosure is the end of the road for the owner, and they almost always find the money to pay to stay in their homes. Starting a foreclosure does not mean the sale will occur, and from our experience, it seldom does.

Want some more reasons why foreclosure, while still a last resort, is better than a judgment?

  1. Stronger legal remedy: A foreclosure is a stronger legal remedy than a money judgment because it allows the HOA to take possession of the property and sell it to recover the unpaid assessments. A money judgment is a court order requiring the homeowner to pay the amount owed, but the HOA must still take extra steps to enforce the judgment and collect the funds.
  2. Quicker resolution: Foreclosure can be a quicker process than seeking a money judgment. It’s unusual for the foreclosure process to take more than a year, and in some states, that time is less than half. In contrast, obtaining a money judgment can be a lengthy process that may involve multiple court hearings and appeals.
  3. Higher recovery rate: Foreclosure is better for the HOA because the sale of the property can often cover the unpaid assessments, legal fees, and other costs associated with the foreclosure process. With a money judgment, the HOA may not be able to recover the full amount owed, and this is guaranteed if the homeowner is unable to pay.
  4. It’s a deterrent: Foreclosure may deter others in the community from defaulting on their assessments. This can help to keep the HOA financially stable and protect the value of the community.

Delinquencies are often settled when a new buyer purchases the property under “joint and several liability” doctrines. If you have eviscerated an amount of the debt and turned it into a personal obligation, it’s more difficult to collect when the property sells. The association has a judgment but must still work to collect on it even if the owner sells the property, when it could have been paid in full at the time of the sale.

During the real estate meltdown of 2008, associations foreclosed and took title to units that were underwater because everything was underwater. Then, they would refurbish and rent the units. The banks were not foreclosing, the units were underwater, and the associations had no choice if they wanted to be proactive. But times have changed, and there’s a record amount of equity in the housing market. The chances that the association will ever take title in these times of high property value and opt to rent the property are incredibly slim.

If you go after somebody with a money judgment, they will evade you until they cannot. It can take years before you get to cash in, if ever. This is not about revenge; it’s about cash flow. When an HOA goes after a delinquent owner, you can be sure that the debtor would be more motivated to pay with a foreclosure over their head than a money judgment. A foreclosure is hard to get out of, if the HOA does it right. They may be able to circumvent or have exemptions not to pay a judgment.

It’s important to note that foreclosure is a last resort for collecting assessments. Before foreclosing, the HOA should work with a specialized and licensed collections solution like Axela-Technologies. Our services include client outreach, respectful phone calls, emails, mailed letters and notices, bank notifications, credit bureau reporting, and other legal and fair methods to collect. For a no obligation collections analysis, please Click Here and let us show you “How the Future Collects.”

 

Tags: ,
Is Your HOA or Condo Board Doing A Good Job?

Is Your HOA or Condo Board Doing A Good Job?

Is Your HOA or Condo Board Doing A Good Job?

How Can You Tell If Your Board is Doing a Good Job?

There’s a lot of talk in the media and online about bad Boards of Directors, including our recent article on how to tell if your Board is stealing from the association. But how do you tell if the Board of your Condo or HOA is doing a good job? Not all Boards are bad, right?

The truth is, most Board members are honest people that meant well when they campaigned for election and mean well when they attend and vote in each meeting. They have reasons for making the unpopular decision that the residents complain about. Oftentimes those reasons are valid and the unpopular decision was actually the lesser of two evils. But, how do you know for sure?

What Makes a Board of Directors “Good”?

To find out what HOA managers and management company executives thought was the ultimate sign of a good Board, we conducted a survey on LinkedIn. The survey responses were almost tied. It turns out, there isn’t one ultimate sign. Instead of one thing that makes your Board great, there’s a list of things that make your Board of Directors successful… or not.

Financial Responsibility

The most popular survey response with 33% of the vote, having a well-funded budget and reserves is a hallmark of a good Board. But other factors go into good financial management as well. A good Board is honest when spending HOA funds and uses them for the good of the community. They communicate with the membership about the reasons for budget increases, how they are using the money collected, and what the process is for paying vendors and for dealing with homeowners who aren’t paying on time. Big projects are well-researched and planned to limit unexpected expenses that make special assessments more likely. Speaking of special assessments, good boards know that regular dues increases that keep up with inflation are a better way to fund projects than special assessments.

Proactive Maintenance of Facilities

Coming in at 29% of the vote is proactive maintenance of the facilities. This means little to no deferred maintenance in the community. All buildings, parks, equipment, etc. are inspected often. Preventative maintenance is completed because the Board knows it will save money in the long run. When something needs repair or replacing, it’s completed as soon as possible, because the longer it waits, the more it costs. What good does it do to have a well-funded budget if money is never spent on maintaining the physical assets of the community?

Productive, Peaceful Meetings

Tied with maintenance at 29%, some managers and executives felt that the number one sign of a good board is how it feels to attend their meetings. Good Boards can disagree without slipping into childish or inappropriate behavior. They read the packets and reports that management provides them before the meeting and show up prepared to vote. Members feel comfortable attending meetings, and because the Board sets a good example of how to behave, most of the members follow it.

Good Boards Set Goals

Another sign of a good Board is goal setting. It’s hard to steer a ship if you don’t know where it’s headed. A Board that plans ahead and sets goals for the direction the community should head in is a Board that has a better chance of getting there. A Board that doesn’t plan is going to find itself spinning around in circles.

Fair Collections

People might not like to talk about it because it can be emotionally uncomfortable, but to be good at their job the Board must do something about owners that don’t pay their dues. It’s not fair to the owners that do pay to have to carry the burden of those that don’t. But a good Board is not overly aggressive when it comes to collections. They make sure that the collection solution they use is fair, not predatory, and advocates for the association to collect every possible penny.

The Good Board Checklist

Do you want to grade the Board of Directors for your community to see how good or bad of a job they’re doing? Using the following checklist, give your Board 5 points for every answer that you checked “yes”.

  • Increases to assessments are small and regular
  • The budget, reserve study, annual review, and other financial reports are accessible to the members for review
  • Reserve funding levels are above 80%
  • Special assessments are rare
  • The final cost for projects is usually in line with the projected cost
  • Components are inspected often and repaired as needed
  • When components fail, they are replaced and not abandoned or removed
  • The Board behaves like professionals at meetings even when they disagree
  • Meetings are business-oriented and not popularity contests or social hours
  • Members are welcome and feel comfortable attending meetings
  • A goal-setting discussion happens at least once a year
  • Experts are consulted and their advice is considered when making decisions
  • The number of owners that are late on their dues is less than 10%
  • Collection practices are fair and judgments and foreclosures are a last resort
  • The Board uses a professional collection solution instead of doing it themselves

Now, add up those scores and see how the Board did. A great score is 60-75, a good score is 45-60, an average score is 30-45, a Board that scores 15-30 needs improvement, and if the Board scored less than 15 points you might be in trouble.

Even good Boards of Directors sometimes find that their collections could be improved. Contact us today to find out why Axela Technologies is a better collection solution than your attorney, and learn more about our options for helping you recover late payments from delinquent  owners.

 

By, Dee A. Rowe, Guest Writer

Tags: ,
Condo and HOA Lien Foreclosures…A National Shame by Mitch Drimmer / Axela Technologies

Condo and HOA Lien Foreclosures…A National Shame by Mitch Drimmer / Axela Technologies

  • Posted: Dec 18, 2022
  • By:
  • Comments: Comments Off on Condo and HOA Lien Foreclosures…A National Shame by Mitch Drimmer / Axela Technologies

 

How many times have you read a story about an HOA foreclosing on some unfortunate family for a fraction of the value of the home? For example, the veteran who, upon returning from active duty, finds that his HOA has foreclosed and taken title to his house for a mere pittance? “Soldier in Iraq Loses Home Over $800 Debt” reads the story, and life goes on at the HOA.

Should the HOA have foreclosed on this person’s house? Why did they foreclose on this property? What could have been done to prevent this gross injustice from happening in the first place? Condo and HOA lien foreclosures should not be the first go-to solution when a unit becomes delinquent.

For too long, community associations have been a national disgrace, rather than a source of national pride. No HOA wants their name to be mentioned on the nightly news because we all know it is far more likely to be an exposé than a feel-good piece. But if we want the bad press to stop, we need to take a good, hard look in the mirror.

 

Communities Often Jump Straight to the Nuclear Option of Lien Foreclosure. Can They Do That?

When you buy a house or condo in a community association, most likely you’ve taken out a mortgage, and if you don’t pay your mortgage, the lender has the right to foreclose and force a public sale of the property. So too can condominiums and homeowner’s associations foreclose on your property for non-payment of maintenance fees.

In fact, per most state laws, your homeowner’s association or condominium association can potentially foreclose on your property even if you are current with your mortgage. Also, your mortgage will remain in first position and the HOA cannot sell the property with marketable title unless the first position lien has been satisfied.

All that is required is for the association to cause an attorney to file a lien, have the attorney send a notice of foreclosure, have your day in court, and before you know it you are being evicted from your home that may have equity in it because you were delinquent for a much smaller amount than what the property is worth. Not a good deal for you and certainly not a smart business move for the association.

It’s not to say that the community is in the wrong. The assessment fees are rightfully owed to the association, and they have the right to attempt to collect it. However, jumping to the nuclear option prior to attempting diplomacy (negotiating with the owner to satisfy the debt) never goes well for anyone.

 

Winrose vs Hale ‘Shocked the Conscience’ of the Court

In an appeals court decision in Supreme Court South Carolina, the association foreclosure was REVERSED and REMANDED. In the case of WINROSE HOA v. DEVERY HALE the court was shocked by this action and even stated so in their decision: “As a result, in determining whether the purchase price was grossly inadequate …. the bid shocks the conscience of the court.” The story is quite simple and may sound familiar to you as this happens every day and really should not.

The Hales were solid citizens who purchased their home twenty-one years ago for $104,250.00 and paid their mortgage and fees on time. The home is valued at $128,000.00 and the property has $60,000.00 of equity in it. After missing a $250.00 maintenance fee payment the HOA foreclosed on their $566.41 lien (to satisfy delinquent assessments and interest) and the winning bid on the house was $3,036.00. The Hales had been robbed, and the association had acted too rashly in moving to foreclose upon a house for such a pittance. The buyer was Regime Solutions, LLC who are investors that seek out and purchase properties at foreclosures.

Due to the Hales failure to file a responsive pleading to the foreclosure complaint, a huge mistake on their part, they were ultimately defaulted and were not served with any further court papers. In fact, they did not even receive a copy of the judgment of foreclosure. When they found out they were at risk of losing their property, they tried to make good to redeem their house and paid a bill to the master and in fact, the law firm representing the HOA sent the Hales a notice that the lien had been satisfied. The HOA, however, did not withdraw its suit.

Three months after, the HOA filed the affidavit of default and the master authorized a judicial sale of the property at public auction. The Hales were not notified of this order due to a rule in South Carolina, which essentially states the time to appeal doesn’t change, despite lack of notice (rule 77(d), SCRCP). Two weeks later without notice to the Hales, the property was sold and the new owner moved to evict them. This of course led to court complaints, a trial, and finally an appeal before the Supreme Court who reversed and remanded the foreclosure order saying that the sale at auction for $3,036.00 “shocked the conscience of the court,” which is quite strong language from the Supreme Court.

 

Investors Use Shady Business Practices To Take Advantage of Unsuspecting Homeowners through HOA foreclosures

It came to light that Regime’s business model was not to assume the senior mortgage to own the property but to give back the property to the original owners at a hefty fee. (Sadly, this is not an uncommon practice.)

The court decision went on to say: “While the HOA had the legal right to pursue collection of the debt owed, including foreclosure of the Property to satisfy that debt, this foreclosure action quickly morphed into a proxy to capitalize on a small debt. We are especially troubled by Regime’s participation in a foreclosure proceeding to accommodate its business model of leveraging a nominal debt to secure an exorbitant return from homeowners who fear the prospect of eviction.”

Most important the court stated: “Regime would not have had an opportunity to engage in its questionable business practices had the HOA and its attorney not chosen to pursue foreclosure in the first place. The Hales were minimally in arrears on their HOA dues, yet the HOA foreclosed on a $128,000 home in its eagerness to collect the outstanding $250—an overdue amount less than 0.2% of the fair market value of the home, notwithstanding the amount of the outstanding mortgage.”

Finally, the court opined: “A foreclosure proceeding is a last resort, not a business model to be swiftly invoked for the purpose of exploiting property owners. We do not countenance the improper use of foreclosure proceedings by the HOA, its attorney, or Regime.”

Justice ultimately prevailed in this case, and the Hales kept their house and were not evicted although there can be no doubt that they had suffered and worried throughout this entire process. Not every homeowner who goes through this process is so lucky to get away with only a terrible story to tell.

 

Communities Are Getting Bad Advice, and It’s Costing Them, in Real Dollars and in Reputation

What went wrong is an amazingly simple question to answer. The association was convinced that they should foreclose on a delinquent unit before they even tried to engage the owners to review the consequences of their situation. While it may be true that they received one notice, they were advised by an attorney that the matter had been resolved. This was a total failure of communication.

The association could have had more contact with the owners and advised them as to the course of action that was being taken against them. Nobody said anything to them – and in this industry, such a thing is not uncommon.

When a delinquent unit goes over to an attorney the object is to “enforce the security interest” and not to collect. The association’s board was not properly informed that less drastic action could be taken. Somehow the board was convinced not to recover money from the Hales but rather to take the property.

No collections activity is reported in the narrative that is presented in the case. It was a bad business decision because eventually, the association had to pay a lot of legal fees. This situation could have been resolved much more easily and cost-effectively.

 

A Lawyer Who is Just Enforcing Security Interests Is Not A Debt Collector

This matter did not have to be resolved by a “legal solution” but rather by a “collections solution.” As a matter of fact, in a case decided by the Supreme Court of The United States, DENNIS OBDUSKEY v. McCARTHY & HOLTHUS LLP the Court held, “A business engaged in no more than the enforcement of security interests is not a “debt collector” under the FDCPA, 1032*1032 except for the limited purpose of § 1692f(6). Pp. 1035-1040.” This means that the association did not even try to collect the past due debt and if they used an attorney, he/she is not even bound by the Fair Debt Collections Practices Act.

The Supreme Court in South Carolina in all its wisdom said loud and clear: “A foreclosure proceeding is a last resort”

 

Community Associations Have a Better Option to Collect Delinquent Fees

So how should a community association collect delinquent fees? In a way this question just about answers itself. The answer is that they use a collection agency that is specialized in collections for community associations. Community Associations need to COLLECT, not foreclose and evict owners from their homes. Associations need to have adequate cash flows and a minimum amount of legal cases.

Axela Technologies would be honored to be that company for your community association. We are a licensed collection agency and we only work on delinquencies from Condos and HOAs. We are different because our objective is not to foreclose on a house, which is the action of last resort.

What Axela does is engage the owner and work with them to pay their past due assessments. Axela will send demand letters, provide internet portals to delinquent owners, make outbound calls, report delinquencies to credit bureaus, receive inbound calls, work out payment plans, and notice mortgage holders that the borrower is delinquent on their maintenance fee payments as per the PUD Rider.

Now is the time for your community association management company and/or community association to put the right process into place when you are confronted with delinquencies. Foreclosing and evicting does not have to be the way. Click here to request your free, no-obligation collections analysis today.

Tags: , ,
The Truth About HOA Bank Foreclosure, by Mitch Drimmer

The Truth About HOA Bank Foreclosure, by Mitch Drimmer

The Truth About HOA Bank Foreclosure

Mitch Drimmer

This subject is very painful. We see it all too often in the HOA delinquency and collection world. And yet, it is not hopeless.

It is hard for a community to have to write off amounts that were left owing from a bank foreclosure in your community association. If you are in a super lien state, upon an HOA bank foreclosure, lending institutions will throw you a few bucks for your trouble. If an owner was foreclosed upon in a super lien state, don’t expect more than 6 months’ worth of assessments (it varies between states, but six months is the average).

It’s a pittance! And what makes it worse is that the banks are often unconcerned about speed when foreclosing–especially when dealing with a non-performing unit. Is a super lien amount enough to satisfy your association’s needs? I think not.

Communities will wonder: does my association have to write off the balance owed?

But that isn’t the question you should be asking. Instead, you need to focus all of your attention on recovering that money.

Was It Really an HOA Bank Foreclosure?

When the bank foreclosed, did they take title, or did they sell the property to a third-party purchaser?

This is a critical question. The answer can make all the difference between getting nothing or getting everything–and I mean every dime that was owed when the bank foreclosed.

In state statutes (and most likely in your governing documents) there is the concept of “Joint and Several Liability.” This doctrine makes it possible for community associations to exist, in that if I sell a property and owe the association money that obligation rides along and is the responsibility of a new purchaser.

With that in mind, when a bank forecloses and the unit is purchased, it is important to determine who was on the chain of title. If the bank foreclosed and sold the unit before they took title, then the association’s lien was not extinguished. This was not a foreclosure where the bank could hide behind their lien priority. THIS WAS A SALE.

Because it was a sale, the association is entitled to recover every penny. When Axela Technologies is servicing a debt, we do not depend on the lender to be an honest agent. This is an arm’s length transaction, and although the association is not a buyer or a seller in this deal, they do have money at stake and require professional representation (that does not cost $350 an hour) that has their interests at heart.

When a bank forecloses, look and see if they had title and sold it, or sold it post-judgment. If they did not take title, this is the difference between a successful collection event and taking a hit (sometimes substantial).

Pursuing a Surplus From a Bank Sale

Often when a bank forecloses and takes title, they will sell their REO (Real Estate Owned Property) at auction or through standard real estate brokers. In these times of real estate appreciating at a rapid rate and inflation roaring, banks will often sell the property that they foreclosed upon for more than they are allowed to recover. That results in a foreclosure surplus, and the association (by right of the contractual lien in your governing documents) has the right to claim that surplus amount.

At Axela Technologies we do this every day because if we do not recover our fees, then we do not get paid. Unlike your attorney, we don’t tell you to write it off and send you a bill, because our interests are aligned with the association. If you have had a unit foreclosed upon and don’t know if it was sold at a surplus, then somebody is not trying hard enough to recover what is legally, rightfully, and ethically money that belongs to the association.

Post-Foreclosure Recovery From the Delinquent Owner

Let’s assume that when the HOA bank foreclosure concluded, everything was done in order and there was no surplus for the association to recover. What happens then?

Well when the bank foreclosed on that unfortunate member of your association, and they left the membership holding the bag for their delinquent assessments, the debt was not extinguished.

Let me repeat that: an owner who owes the association money before an HOA bank foreclosure STILL owes that money after they have lost their house.

Now you may be inclined to say that this was a poor unfortunate person and to pursue them is heartless. In reality, it is heartless NOT to pursue this money. You must consider the good paying owners who picked up the cash shortfall by way of increased assessments and special assessments. Choosing not to pursue that debt means they footed the bill for nothing.

Axela Technologies has a cure for that as well.

Our Post-Foreclosure recovery program allows us to pursue these debts on a contingency basis. If we recover, it is like finding $20.00 in your jeans when you pull them out of the dryer, but way better. (Note: Contingency collections are not available in Texas.)

Let Axela Technologies Help

If your community association has delinquencies, remember that they do not end with an HOA bank foreclosure, or even an association/foreclosure. It ends when the debt is either collected or determined to be absolutely, positively uncollectible. Contact Axela Technologies and speak with our knowledgeable recovery specialists. Let us help you obtain the holy grail of community association governance that is a balanced budget.

 

Tags:
HOA Statement of Receivables

HOA Statement of Receivables

HOA Statement of Receivables

A statement of receivables, or accounts receivable statement, is a document that details the outstanding charges owed to the community association. This can be from sources such as overdue dues, vendor credits, late fees, or any other outstanding source of income. It is essentially a list of every account that still owes the HOA money.

 

What is in a Statement of Receivables

These statements should contain all accounts that owe money, along with the grand total of overdue funds. The total will help with budgeting purposes. Knowing how much money is available, if collections are being handled properly, can help with financial planning. The list of all overdue accounts can act as a checklist for anyone working in collections to ensure that no account is missed.

Some associations prefer to go one step further and detail which accounts are 30 days, 60 days, and over 90 days past due. For example, if a homeowner has missed their dues in March, April, and May; they will have money in the 30, 60, and 90-day categories. This way, collections agents will know to put more pressure on collecting the April dues versus following up on another account that is only 30 days behind. Just like with all financial statements, the more detail you provide, the easier it is to plan and manage.

 

How Often Should They be Prepared

While the HOA statement of receivables should be prepared at the same frequency as all other financial statements, it is helpful for the accounts receivable statement to be released more frequently. There are even programs available to keep up with AR statements in real time and have them available on demand. This can be immensely helpful for collection purposes to make sure that everyone is on the same page.

 

Need More Information

Financial management can be one of the toughest aspects to operating a successful HOA. If you are having trouble with reviewing financial documents such as the HOA Bank Statements, contact the professionals at CSM. We have years of experience working with homeowner’s associations from all over the United States. Using state-of-the-art technology, we can provide financial management assistance while still allowing association directors to remain independent.

 

Tags: , , ,