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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.
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).
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.
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.)
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.
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Tags: Damage Restoration, Management News
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Tags: Painting Service Articles, Roofing Articles
Its Budget Time, and that means it is that time of year for boards of community associations everywhere to prepare next year’s association budgets. A good budget is reflective of good financial planning. In practice, it is anything but an exact science.
When examining the community association budget process, there are a few subtle nuisances and a couple of glaring distinctions between those budget related laws set out within Chapter 720 that governs homeowner associations (HOAs) as compared to Chapter 718 that governs condominium associations (CAs). Let’s take a look.
Notice Requirements:
• HOA board meeting notices must include a statement that assessments will be considered and, as per statute, “the nature” of the assessments. There is no definitive advance HOA board budget meeting notice requirement set out in Chapter 720, so be sure to check your HOA’s bylaws for any specific requirements. (As an aside, please do not confuse this with the special assessment procedures where it is required for any meeting at which special assessments will be considered that written notice mustbe mailed, delivered, or electronically transmitted to the members and parcel owners and such notice must be posted conspicuously on the property or broadcasted on closed-circuit cable television not less than 14 days before the meeting.
• At least 14 days before any CA board meeting at which a proposed annual budget of an association will be considered, the board must hand deliver to each unit owner, or mail to each unit owner at the address last furnished to the association by the unit owner, or electronically transmit to the location furnished by the unit owner for that purpose 1) a notice of such meeting and 2) a copy of the proposed annual budget
Committees and Workshops:
• The HOA’s notice requirements apply to the meetings of any HOA committee or other similar body, when a “final decision” will be made regarding the expenditure of association funds.
• Meetings of a CA committee to make recommendations to the board regarding the association budget are subject to the Notice Requirements, above.
Providing Copies:
• The HOA must provide each member with a copy of the annual budget ORa written notice that a copy of the budget is available upon request at no charge to the member.
• The CA must send a copy of the proposed budget (showing reserves fully funded for the year) with the board’s budget meeting notice. Limited proxies for unit owner vote must include a statutory proscribed disclaimer regarding the inherent financial risk in rendering such a decision.
Budgetary Considerations:
• The HOA’s budget must reflect the estimated revenues and expenses for that year, along with expected deficits (bad debt) and surpluses. The budget must also set out separately all fees or charges paid for by the association for recreational amenities, whether owned by the association, the developer, or another person.
• The CA’s proposed annual budget of estimated revenues and expenses must be detailed and must show the amounts budgeted by accounts and expense classifications. The CA can only assess for such items as authorized by statute or the CA’s own governing documents.
Reserves:
• HOA reserves are not mandatory but can be mandatorily required only IF they were initially created by the developer orwere voted on, and approved, by a majority of the total voting interests of the community. Both of these types of HOA reserves are loosely referred to as “statutory” reserves. If your HOA assesses for “statutory” reserves, then the assessment revenues collected must only be used for authorized reserve expenditures unless their use for other purposes is approved in advance by majority vote at a meeting at which a quorum is present. If your HOA assesses for “non-statutory” reserves, (meaning that the budget may have a line item called “reserves”, but they are not “statutory” reserves), then there are no limitations on the board’s expenditure of these monies.
• CA reserves are initially mandatory in that all residential CA boards must pass the budget with reserves included. After, the unit owners can vote to waive or reduce the reserves. CA reserves can only be spent for their designated purpose unless otherwise approved by a majority of a quorum comprising the voting interests.
PRACTICAL TIP 1: Compare last year’s actual expenditures to last year’s budget, and also compare it to what is set out in the upcoming year’s budget. This simple comparison can be most illuminating.
PRACTICAL TIP 2: Take a look at the existing “bad debt” and see how aged it is. Determine whether it is time to “write it off”. In practical terms, this means that the dues paying members in good standing have to make up that shortfall as required to meet the ongoing expenses of the association. In the event that your community association budget does not include a bad debt line item, then consider adding a “bad debt” line item at this time.
Tags: Budgets & Finance, Condo & HOA Accounting, Condo Reserves, Financial & Business
NORTH CAROLINA — When the caller on the other end of the phone asked Trenita Rogers when she was moving out of her house, she thought it was a joke.
She’s owned her home in Pitt County, North Carolina, for 12 years and even paid it off. So she was shocked when a man told her that he’d bought it.
“I said, ‘I don’t know anything about that.’ And he said, ‘Yeah, I bought your home in an upset bid and I need to know when you will be moving,'” Rogers remembered.
She quickly found out he wasn’t lying. At the county courthouse, she found the paper that showed that her home, which is valued at $413,000, was sold for just over $221,000.
The sale came after the property was foreclosed on — something that Rogers said also happened without her knowledge.
This all stemmed from a debt of $1,491 to an HOA that Rogers didn’t know she was a part of.
“I’ve been there for 12 years. I’ve never paid an HOA. I’ve never been invited to an HOA,” Rogers said.
The debt was an accumulation of a decade’s worth of annual HOA dues.
Rogers said she would have paid the debt if she had known. Court records show the HOA had filed liens against Rogers’ property in the past for late dues. A lien is on file for the property in 2013 and 2017; both for unpaid HOA dues. Rogers claimed she was unaware of these.
This summer, Rogers eventually got an eviction notice. She moved out of her “forever” home and is living with a friend.
“My life has become an open book,” Rogers said. But now, she is working to reverse the last chapter.
Rogers hired Chapel Hill-based attorney Jim White to fight for her home back.
“I told my daughter, I said, ‘Mom’s gonna fight for this because this is wrong,'” Rogers said.
White said Rogers did receive letters from a law office but she thought they were junk mail and the law requires more notification than that.
“The HOA never served her lawsuit papers. They just didn’t do it and that is fatal,” White said.
White explained the papers for the foreclosure hearing were sent out as certified mail but instead of getting Rogers’ signature, the mail carrier just wrote C-19 for COVID-19 in place of the signature. This practice was used at the height of the pandemic to limit carriers’ exposure to the virus. Rogers claimed she never saw the documents from the mail carrier.
“The law says you’ve got to serve somebody. You’ve got to. If you’re suing somebody, you’ve got to make sure that they’ve gotten notice,” White said. “The thought that someone could just casually move forward at someone’s home over a $1,400 debt without turning over heaven and earth to make sure that they knew just seems wrong to me.”
The lawsuit White filed on Rogers’ behalf does state that someone from the Pitt County Sheriff’s Office did try twice to deliver a notice of the hearing in-person last September, but they were “unsuccessful.”
Rogers’ HOA, Irish Creek Section 2 Owners Association, declined to comment on the issue, citing the pending lawsuit.
The attorney representing the seller who bought Rogers’ home said while Rogers never signed the official papers, the C-19 signature doesn’t mean she didn’t see them. The attorney also said his client bought the house in a competitive bidding process and has been unable to access the home.
Rogers has a court date next month where she hopes to reverse the sale and the foreclosure due to the lack of notification she received.
Unfortunately, White said he continues to hear from clients with similar stories.
He’s seen cases where associations foreclosed on a fully owned home for $250 in unpaid fees. In other instances, the HOA was sending the bills to the wrong address, which led to late fees and then foreclosures.
“We’ve had so many situations of people; these are their neighbors, they knew where they lived. Somebody could have knocked on the door. Somebody could have called and they did not do that,” White said.
White said the law surrounding notification is a big area where small legal changes could make a difference.
“I think the problem is there really is no such thing as an HOA foreclosure defense in North Carolina. The law is tilted heavily in favor of homeowners associations,” White said.
He explained HOAs have just as much power as banks in foreclosures, which means they don’t need to go in front of a judge.
While many imagine HOA boards as a group of pesky neighbors, they are often run by national management companies with no real connection to properties.
“The law is set up to protect homeowner associations, not homeowners. The laws were written by lobbyists and attorneys for homeowners associations to make it easier for them to do what they need to do,” said Jason Pickler, a senior staff attorney for the North Carolina Justice Center. “The consumer protections are not robust.”
And often when the issue with the HOA is not over a large amount of money, it can become increasingly challenging for homeowners to find a lawyer to represent them.
Pickler said additionally there is also a lack of resources and education for people facing housing issues.
“Even though your home is so important to you… and it’s your biggest asset, unfortunately, if someone is trying to take that home away from you, it’s not criminal; it’s civil,” Pickler said. “So if you don’t have the money to pay an attorney, then you’re scrambling to try to get help.”
White advised residents who do know they have HOA dues and if they know they are behind to get caught up to avoid foreclosure altogether.
But White said there are things lawmakers can do to make this process harder.
“I think the process should be a lot harder. There should be strict notice requirements and strict proof of notice,” White said.
“The law says that an HOA has this right. And then the question is, what you legally can do just versus what ethically is right,” White said. “What’s going on, it’s just not right. It’s really that simple.”
Advice for homeowners with HOAs:
I think last night’s 60 Minutes episode made it clear that for some, living in their condominium unit may simply become unaffordable. The question is……which condos will suffer the most and which other forms of housing are most likely to retain their values and even go up.
Everyone is freaking out that all condominium living will soon become insanely unaffordable but that simply isn’t true. Remember, these new inspection laws only kick in after 25 years if your condo is on the beach or within 3 miles of the coast. They don’t kick in for 30 years for all other condos. So, if your condo is new, these new inspections may not apply to you for decades. Relax.
What else do we know? Full funding of reserves start in 2025 and they can’t be waived. Does that spell doom and gloom for everyone? Not necessarily. If your condominium has always been doing the right thing and has been fully funding reserves, these new laws requiring the full funding of reserves may not have a financial effect on you at all. On the contrary, if you have been living in a condominium that has been waiving reserves for years, or even decades, you are in trouble. You have a lot of catching up to do. But what did you expect? You were never putting away money for future repairs? Did you think your building would never need repairs? If it did need repairs, did you think these repairs would magically be paid?
Remember, these mandatory inspections, mandatory repairs and mandatory reserves only apply to condominiums of 3 stories or more. So obviously, if your condominium is under three stories, you won’t be subject to mandatory inspections or mandatory reserves. Something tells me, your home will be in high demand.
Of course, if you live in an HOA, the new inspection and reserve laws won’t apply to you either. No doubt in my mind, condo dwellers will soon be looking to switch to the HOA way of life.
If you live in one of those condos above 3 stories that is 30 years of age or older and never reserved a dollar, it’s going to be hard to sell your unit. Buyers are more educated now and realize they would be buying into a financial nightmare. If you want to sell, your price will definitely have to factor in, what the new buyer is about to pay for those inspections and repairs.
On the contrary, people who own condos under 3 stories or who live in HOAs will be in the driver’s seat as none of these costs will be passed on to their potential buyers.
I’m no realtor……..but this is how I see it.