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We know that this headline reads like a Florida-specific issue, but Florida is often used as a guideline for other state laws and courts. For this reason, we think it’s important for homeowners and condo associations in other states to take note.
In Accardi v. Regions Bank, Florida’s 4th District Court of Appeals reversed a lower court ruling that awarded the bank a deficiency judgment and remanded the circuit court to enter an amended final judgment to include attorney’s fees and taxable costs only. The bank was not able to recover its deficiency judgment.
This happened because of a Florida Statute that states “Actions other than the recovery of real property shall be commenced as follows … within one year” (of a certificate of title being issued or acceptance of a deed in lieu of foreclosure, that is):
“An action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.”
That’s a lot of legal jargon that most simply translates to say that there is a one-year statute of limitations period for which a claim for a deficiency may be acted upon (not to be confused with the timeframe for enforcing a deficiency judgment that has already been entered) in order to avoid the deficiency claim from becoming time-barred.
This Accardi v. Regions Bank ruling got us all thinking. Clearly, it reflects a problem for banks and lenders who have had to foreclose and were left with a sale that did not satisfy the judgment amount at foreclosure, but that isn’t really the takeaway here. The takeaway is that, in theory, this same statute could potentially be used to prevent delayed collections for HOAs and condo associations when attempting to recover assessments post-foreclosure.
Is your community association trying to recover outstanding debt post-foreclosure? You should be.
If the association was the foreclosing party, and they recovered less than the amount owed as a result of the sale of the property, then that would give rise to pursuing a claim for a deficiency. So it would be very worthwhile to enforce a claim for a deficiency within a year of the certificate of title being issued.
Again, this statute of limitations is specific to Florida, so if your own state already has statutes that have different time restrictions, you need to follow those to the letter of the law. But doing this seemingly small task in the right time frame could be the difference between getting your deserved monies owed or leaving it all on the table due to a dickered-out semantic technicality.
Similarly, if an association has debt that is uncollectable from a subsequent owner due to superior lien foreclosure or tax sale, the association should act quickly to enforce its collection rights on this debt. While the fact pattern under this scenario is different from pursuing a deficiency claim created by virtue of the association’s own foreclosure sale, it would be wise to take action to collect on this debt sooner rather than later, to avoid any potential argument that would suggest it is a deficiency and that it is time-barred.
Collections delayed are collections denied.
No HOA or Condo association should stop trying to collect the money it is owed to them until said debt has been declared uncollectible by a collection professional, and that may not be your community association attorney. Don’t leave money on the table and don’t accept HOA and condo delinquency write-offs. Let a professional Condo and HOA collection company recover the money that is owed to your community association.
Axela Technologies, the nation’s leading collection company for community associations, does know the laws nationwide and we suggest that pursuing that debt at no cost and no risk is a good strategy. A great strategy, you must send the file to collections before it is too late. Perhaps a court will say that beyond one year is too late.
Don’t write off debt that could have been recovered. Call us for a free review and collection analysis. Not only can we collect from debtors who have been foreclosed on, but we can also collect from homeowners who are behind on their assessments, all at no cost to the association.
Find us on SFPMA Learn more about the services we provide.
First of all, it is not healthy for them as they become dependent on people for food. The best food for ducks is what they eat naturally— algae, insects and a variety of plants which are abundant in our subtropical climate. Humans most often feed them bread and similar items. These have no nutritional value for the duck. Additionally, feeding by humans makes the ducks reliant on such hand-outs, too lazy to continue foraging for their natural dietary items and uneaten “human” food will rot quickly in warm weather.
Second, feeding ducks encourages them to use the neighborhood as their bathroom, leaving droppings on patios, sidewalks and porches. As a result, controversies frequently arise between residents who enjoy the birds and residents who consider them a nuisance. Even duck lovers have complained about the problem of duck droppings on the lawns, drive-ways, patios, and even in their swimming pools. This is not healthy for people, particularly for the children playing in these areas. Wild ducks can spread disease to humans. When small children, the elderly and persons with immune system problems directly handle newly-hatched chicks, they may be exposed to salmonella. Muscovies can also transmit disease to wild waterfowl. All confirmed outbreaks of DVE, also known as duck plague (a sometimes-devastating viral infection) in wild waterfowl have been linked to domestic ducks. Fowl cholera is another serious disease that is transmittable between domestic and wild waterfowl. Although we have had no major outbreaks reported yet in Florida, the potential for Muscovies to spread this disease to wild waterfowl is a biological concern.
DON’T: Feed ducks bread or junk food. Foods like bread and crackers have no nutritional value to ducks and can cause malnutrition and painful deformities if consumed too much.
DON’T: Leave uneaten food lying around. Leftover food in the water can rot and cause deadly algae blooms that affect local wildlife.
DON’T: Try to pet wild ducks. They may not appreciate your efforts!
Keep a respectful distance and remain nonthreatening, especially to ducklings who may become stressed or injured more easily.
Tags: Condo and HOA, Lake Management Articles, Members Articles
Here at SRI Consultants, Inc., we take pride in what we do. The extra effort and attention to detail put forth by our team ensure you receive the highest quality services available to the industry, all while saving you time and money. Coastal areas like South Florida have a unique need for concrete rehabilitation and protection services predominantly related to assessing structural damage. Our team has specialists in structural engineering, civil engineering, environmental engineering and corrosion engineering at your disposal.
We offer engineering services for projects related to single family homes, multi-story structures, condominiums, hotels and motels, cooling towers, and seawalls. All project drawings are prepared using the latest AutoCad software. SRI can also deliver projects in Revit Architectural and Revit Structural.
By Eric Glazer, Esq
IT MAY BECOME IMPOSSIBLE TO GET A NEW MORTGAGE IN MANY CONDOS
As if condos didn’t have enough problems, Fannie Mae and Freddie Mac have just come out with new guidelines that condos must follow. Fannie Mae and Freddie Mac are government-sponsored agencies that purchase large quantities of home loans to keep money circulating throughout the home mortgage economy. They won’t purchase these loans any longer unless:
Delinquent assessments for Established Condominium Projects
No more than 15% of the total number of units in a project are 60 or more days delinquent in the payment of their HOA assessments.
The Condo Must Have a Reserve Study
The reserve study must comply with the following requirements:
If the Seller relies on a reserve study that meets the requirements of this section, the project’s budget must contain appropriate allocations to support the costs identified in the study.
Tags: Board of Directors, Condo and HOA, Management News
Kaye Bender Rembaum will also be in attendance and offering seminars at the following Expos in February:
Get the tools and information you need to manage your condo or HOA more efficiently. Regional and national experts will offer insights into the latest industry trends and best practices in legal oversight, financing, maintenance, renovations, energy efficiency, administration, communication and more. Bring your questions to these lively, informative sessions and come away with a clear blueprint for improved management for the future.
For one day only, the Palm Beach Convention Center will be packed with the latest products and services as well as an array of industry experts. It’s an unparalleled opportunity to make valuable connections and speak directly with local and national experts about the topics that are relevant to you and your property.
Get legal insights, financial advice, communication tips, proactive management solutions and much more from some of the region’s top professionals. This one-day event will also give you a sneak peek at the latest design trends gracing today’s most prestigious developments, plus innovations in building and remodeling and the newest energy efficiency options.
For one day only, the Miami Beach Convnetion Center will be packed with the latest products and services as well as an array of industry experts. It’s an unparalleled opportunity to make valuable connections and speak directly with local and national experts about the topics that are relevant to you and your property.
Get legal insights, financial advice, communication tips, proactive management solutions and much more for some of the region’s top professionals. Attend FREE educational seminars and CEU courses covering all of today’s essential property management topics. This one-day event will also give you a sneak peek at the latest design trends gracing today’s most prestigious developments, plus innovations in building and remodeling and the newest energy efficiency options.
For one day only, The Signature Grand will be packed with the latest products and services as well as an array of industry experts. It’s an unparalleled opportunity to make valuable connections and speak directly with local and national experts about the topics that are relevant to you and your property.
Get legal insights, financial advice, communication tips, proactive management solutions and much more from some of the region’s top professionals. This one-day event will also give you a sneak peek at the latest design trends gracing today’s most prestigious developments, plus innovations in building and remodeling and the newest energy efficiency options.
Condo, HOA and Property Management ExpoSeminars: 9:00 am – 4:30 pm Exhibits: 10:30 am – 3:00 pm
Sign up for the networking and educational event of the year! Get face-time with industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA.
It’s the ONLY event to bring everything you need under one convenient roof for a single, information-packed day.
Registration is FREE for community association managers, board members, board presidents, active HOA members and industry professionals. Don’t delay… register for this one-of-a-kind event today!
Naples Condo & HOA Expo & SeminarsNew Hope Event Center
7675 Davis Blvd. Naples, FL 34104
Seminars 9:00 am – 4:30 pm Exhibits 10:30 am – 3:00 pm
Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands of the management and maintenance of your condo or HOA.
Registration is FREE for association managers, board members. Don’t delay!
Orlando Condo HOA Property Management Expo & SeminarsSeminars 9:00 am – 4:30 pm Exhibits 10:30 am-3:00 pm
Sign up for the networking and educational event of the year!
Get face-time with the industry experts, browse the latest
products and services and learn how to save thousands on the
management and maintenance of your condo or HOA.
Registration is FREE for association managers, and board members. Don’t delay!
Tags: Board of Directors, Condo and HOA, Management News
| 01.18.2022
ArticlePublication | Naples Daily News
Q: My community has set up various speed monitoring devices along the most travelled road. The board is now fining residents for speeding violations. Is this legal? What is the process for imposing a fine and can these fines result in a lien? D.V.
A: Fines can be levied for violations of the governing documents, including speeding violations. Whether a fine can be recovered by the recording and pursuit of a lien depends on several factors, including the amount of the fine and what type of community association you live in.
Condominium and cooperative fines are capped at one hundred dollars per day and one thousand in the aggregate for continuing or ongoing violations. Homeowners’ association fines are likewise capped at one hundred dollars per violation and one thousand dollars in the aggregate, with one important difference. The declaration, articles, or bylaws for a homeowners’ association can authorize higher fines (this option is not available to condominiums and cooperatives).
Fining is retroactive and can begin accruing from the first day/time a violation is alleged to have occurred. There is no legal requirement to give a warning letter or opportunity to correct a violation before a fine is levied, although many associations do so as a matter of policy, especially for minor or first-time violations.
The board typically initiates the fining process by placing the matter on the agenda for a regular or specially scheduled board meeting to consider levying a fine. A majority vote of the board at a meeting where a quorum is present would be required to levy the fine, which should be levied as a specific amount.
After levy by the board, a hearing must be offered. The hearing is conducted by an independent committee appointed by the board. The committee, sometimes called “fining committee” or “compliance committee,” must be comprised of at least three (3) members of the association who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.
At the fining hearing, the committee must afford basic due process and allow the accused to be heard, state his or her case, and challenge evidence against him or her. Ongoing or continuing violations only require a single notice and opportunity for hearing before the committee.
The committee’s sole decision is to either “confirm” or “reject” the fine levied by the board. If the committee rejects the fine, the matter is concluded. If the committee confirms the fine, the fine is deemed to be imposed. The association must provide written notice of the fine by mail or hand delivery to the owner and, if applicable, to any tenant or invitee of the owner. The fine becomes due 5 days after written notice is given.
Unpaid fines cannot by law be secured by a lien for condominium or cooperatives. In homeowners’ associations, the statute provides that a fine of one thousand dollars or more may be subject to a lien. Some argue that the governing documents need to also include the authority to impose the lien for unpaid fines, some argue the contrary, there are no appellate court decisions on the topic. You might also be interested in knowing that there are already two Bills filed for the 2022 Florida Legislative Session that address HOA fines. One Bill (SB 1362) would state that homeowners’ association fines cannot be secured by a lien. The other (HB 6103) would remove the statutory authority of homeowners’ associations to fine altogether. It will be interesting to see what happens to these Bills during the upcoming 2022 Legislative Session.
Collection of fines typically requires a suit in small claims court, and the loser of the case would normally be responsible for the winner’s attorneys’ fees.
The provisions of your individual association’s governing documents and the application of current laws is also an important issue, which should be addressed with the association’s attorney. Likewise, if the matter is contested in court, the judge will likely require proof from the association that its speed monitoring devices are reliable and properly calibrated and maintained.
To read the original Naples Daily News article, please click here.
David Muller is board-certified in Condominium and Planned Development Law and regularly provides practical advice that ensures the fiscal success and legal compliance of both commercial and residential community associations. He has significant experience in drafting governing documents and amendments, negotiating contracts, dispute resolution, and more. For David’s complete bio, please click here.
Tags: Condo and HOA, Legal and Lobbing, Management News
By Eric Glazer, Esq.
Senator Anna Maria Rodriguez filed our mandatory condo education bill in Florida’s Senate. But if you think she’s done trying to change additional condominium laws, you would be very wrong. She also filed Senate Bill 274 which creates the Condominium Fraud Investigation Pilot Program.
According to the bill itself, the purpose of the program is to investigate condominium-related fraud and corruption in Broward, Miami-Dade, and Monroe Counties. The DBPR may contract with a private entity that employs retired law enforcement officers who have subject matter expertise in financial fraud to achieve the purpose of the program. The DBPR shall hire five law enforcement officers to carry out the purpose of the program. If the DBPR does not contract with a private entity, the DBPR must hire three financial investigators, five investigators with previous law enforcement experience, and three clerical employees to staff the program.
A person may submit a complaint to the Office of the Condominium Ombudsman. The ombudsman shall review all complaints submitted to the office and determine which complaints to forward to the DBPR for additional analysis and investigation under the program. If a complaint submitted to the office does not contain allegations of fraud or corruption, the ombudsman must forward the complaint to the Division of Florida Condominiums, Timeshares, and Mobile Homes.
The DBPR has the power to subpoena, audit, and investigate for the purposes of the program. The DBPR may administer oaths, subpoena witnesses, and compel the production of books, papers, or other records relevant to investigations it conducts. If, after reviewing a complaint under the program, the DBPR finds sufficient evidence for criminal prosecution, it must refer the case to the appropriate state attorney for prosecution.
The program must be funded annually from the Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund with funds specifically appropriated in the General Appropriations Act.
This section is repealed October 2, 2027, unless reviewed and saved from repeal through reenactment by the Legislature.
Tags: Condo and HOA, Management News
by Axela Tech. / Mitch Drimmer
Bankruptcy is one of the most perplexing issues community association managers must deal with. It is the most complicated issue involved in condo and HOA collections. So YES, a condo or HOA CAN collect if a homeowner declares bankruptcy. But you must know what you are doing and how to do it.
Bankruptcy is generally taken to mean that someone is out of money. But the actual meaning, and the legal proceeding of bankruptcy, are a little more complicated. Declaring bankruptcy isn’t as simple as someone saying, “Sorry, I have no more money left,” it’s a legally determined state of being unable to pay off debts owed.
The goal of filing for and declaring bankruptcy is to create a more positive economic situation for everyone. By declaring bankruptcy, the person in debt pays off a portion of the owed debts, and the remainder is discharged, giving both sides an opportunity to benefit from a bad situation.
Certain types of debts generally can’t be discharged through bankruptcy, such as child support, alimony, student loans, and some tax obligations. However, money owed to condos and HOAs is considered consumer debt and is dischargeable when a homeowner declares bankruptcy.
Bankruptcy cases are handled by federal courts, and federal law defines six different types. The two most common types used by individuals are Chapter 7 and Chapter 13, named after the sections of the federal bankruptcy code where they are described.
Chapter 7 bankruptcy, the type most individuals file, is also referred to as a straight bankruptcy or liquidation. A trustee appointed by the court can sell some of the homeowner’s property and use the proceeds to partially repay creditors, after which their debts are considered discharged. Some types of property can be exempt from liquidation, subject to certain limits. Those include vehicles, clothing, household goods, tools of the trade, pensions, and a portion of home equity. Homeowners list the property they are claiming as exempt when you file for bankruptcy.
Chapter 13 bankruptcy, on the other hand, results in a court-approved plan for the delinquent homeowner to repay all or part of their debts over a period of three to five years. Some of their debts may also be discharged. Because it does not require liquidating assets, a Chapter 13 bankruptcy can allow a homeowner to keep their home, as long as they continue to make the agreed-upon payments. Chapter 13 bankruptcy is the most common kind of bankruptcy filing by homeowners attempting to save their homes from foreclosure.
In community associations, the registered agent (generally your manager or board president) will receive a notice that an owner has filed for bankruptcy and action must be taken. HOA and condo collections are serious business and if the association does not respond appropriately, you may not be in line to recover any delinquent assessments when the case is discharged by the bankruptcy court.
It’s incredibly important to remember that once you get notice of a bankruptcy filing, the management company CANNOT contact the owner to request payments. If you have sent the file to a collection agency or attorney, you need to notify them so that they too can stop all collections activity.
The association’s attorney will need to respond to the notice of bankruptcy with a ledger of all amounts due to the association. This is called a “pre-petition” ledger and it covers everything that was owed from the time the property owner went delinquent until the time he/she petitioned the court for protection under the bankruptcy laws. This ledger of delinquent condo or HOA dues is sometimes referred to as a ledger “in rem.”
Next, the association needs to start a new ledger which should be called the “post-petition” ledger which covers what is owed from the time the owner filed for bankruptcy going forward. The post-petition ledger has nothing to do with the bankruptcy proceedings and the delinquent owner should be paying their assessments as usual after the initial bankruptcy filing.
Many believe being in bankruptcy means nothing needs to be paid, but that is not accurate. If the association is not receiving post-petition payments, then when the bankruptcy is discharged, they need to immediately start collections activity.
If a homeowner declares bankruptcy and fails to pay the post-petition amounts (assessments and other debts owed to the association) the association can ask the bankruptcy court to lift the automatic stay and allow collection efforts to resume. If successful, the condo or HOA can continue pursuing the debt.
Monitoring a bankruptcy is critically important. Axela Technologies does this for all files that are placed with us, whether they are already in bankruptcy or file during collections activity.
Often it happens that a bankruptcy has been discharged and the community association does not even know about it, so the debt keeps on piling up with no resolution in sight. Axela Technologies uses PACER which is a database of all bankruptcy cases in the United States. When a case is discharged, the association should know about it and Axela will move the file forward if the owner has not paid their post-petition amounts or does not adhere to the court’s settlement agreement.
Bankruptcy is there to help and protect people, but there are those who will game the system and will postpone payment or just completely default. These are files that need to be addressed and worked on without delay. Call Axela for a no-obligation review of our collection process and technology. Let us show you how the future collects!
Tags: Collections, Condo and HOA, Management News
SFPMA works throughout the State of Florida, we are a multi-member organization for the Condo, HOA and Property Management industry. Through knowledge based Articles, Events and our Members Directory, Clients find the right information to make an informed decisions for their Florida properties.
