Thursday, June 11, 2009

AP story on foreclosure crisis in Chicago Tribune

Per the AP, here is another story on the association collection crisis...

Homeowner associations foreclosing on residents behind in their fees

IRVING, Texas (AP) -- Thousands of Americans who have generally kept up with their mortgages are still in danger of losing their homes because they made a fateful trade-off in this shaky economy -- they let their homeowner association dues slide.

Many homeowners are learning to their surprise that condo and neighborhood associations that oversee security patrols, mow lawns, plant flowers and clean the community swimming pool may have the right to foreclose when dues aren't paid. That right is often written into the purchase agreement signed by the homeowner.

Among those who have been threatened with foreclosure is Lacey Pilat, who lost her job catering lavish corporate parties and nearly lost her two-story house in this Dallas suburb.

"Basically, our landscaper was foreclosing on the house," said Steve Pilat, her husband. "That's the way we looked at it."

These foreclosure actions do not necessarily pit neighbor against neighbor. Many homeowner associations have turned the job of collecting member dues over to outside management companies. And to them, it's strictly business, not personal.

Homeowner association boards and their management companies defend the practice, saying maintaining the neighborhood preserves everyone's property values.

"We have compassion for those folks. At the same time, we feel for the rest of the homeowners who are paying their dues," said Andrew Schlegel, executive vice president for Merit Property Management, which manages more than 140,000California homes in community associations.

In California, associations can foreclose only after 12 months of missed fees or $1,800 in back dues.

"No one wants to do this," Schlegel said. "It's only coming up when people are completely obstinate about it."

In fact, most people end up saving their homes. Homeowner association boards -- particularly those that have lost many of their dues-paying members to the housing collapse and the slumping economy -- often work with down-on-their-luck neighbors to come up with some sort of compromise. That's what happened with the Pilats.

Gauging the number of foreclosures nationwide by homeowner association is difficult. But in Texas, foreclosure attempts initiated by homeowner associations in 19 counties are up 30 percent from two years ago, according to Dallas-based Foreclosure Listing Services.

In the San Antonio area alone, foreclosure actions by homeowner associations jumped to 170 in April from 21 in April 2008, according to

In Florida, attorney Bob Tankel, who represents hundreds of homeowner and condo associations, said he has increased his staff from three to 16 in the past 18 months to handle a mounting caseload of 3,500 open collections. About one-fifth of those cases have reached foreclosure, he said.

In California, Schlegel said more than 6 percent of the homes that his company manages are in some stage of delinquency with regard to membership dues, up from around 1 percent in previous years.

More than 59 million people live in more than 300,000 association-governed communities nationwide, according to the Community Associations Institute, the nation's largest group for homeowners and condo boards.

In many of these foreclosure cases, the homeowner's name is on the mortgage, and the mortgage is held by a bank or other lender. But the purchase agreement says the homeowner association can haul the homeowner into court and begin foreclosure proceedings for nonpayment of dues.

If the house is foreclosed on, it is sold off, and the homeowner association takes what it is owed from the proceeds. Proceeds also go to the bank to pay off the mortgage.

About four months after Pilat lost her job, the management company for the Beacon Hill homeowner association sent her a foreclosure notice in April after several attempts to collect her $450 annual dues, which paid for the mowing of front lawns. The amount she owed snowballed to $1,800 after penalties and fees.

The management company eventually agreed to let the couple pay the debt over time. The Pilats cut a check for $600 in April that drained their checking account but saved the house. They are slowly paying off the $1,200 debt.

Pilat had fallen a little behind on the mortgage, too, but the bank was working with her to keep her house.

The Pilats said their neighbors on the homeowner association board never got involved in the dispute over dues; it was handled by the management company. Neither the company nor the homeowner association returned calls for comment.

The foreclosure actions have renewed long-standing complaints that homeowner associations are often made up of power-drunk residents who enjoy lording it over their neighbors and zealously enforce the rules regarding such things as the height of the grass, the color of the house, the flying of flags and the way the porch is furnished.

"You have a number of them being run like little totalitarian regimes," said Texas state Rep. Burt Solomons, who has unsuccessfully tried passing association reforms for years in the Legislature. "Their argument is that if you don't like it, move."

Near Sacramento, Calif., unemployed state employee Pam Spanier was served with a foreclosure notice after falling more than seven months behind on her $115 monthly dues, which pay for Internet access and a golf-cart security patrol. She owes a total of $2,100, including attorney fees and fines. She is still in her home.

"I'm going to continue to look for a job and hope for a miracle," she said. "If it forecloses, it forecloses."

Tuesday, June 9, 2009

Collectible Costs and realted matters

We often get requests to pass on management company charges in collection actions; while I am sympathetic to the costs that are incurred, this email with the names modified to protect the guilty sums up the position on the issue quite well...

Hi Jennifer;

Jenny asked me to respond to the inquiry you had regarding the issue of informing you that we cannot collect the $10 per month collection "fee" that #$@&^!@ Management imposes on delinquent accounts. The following is why.

The law says this:


(3) Assessments and installments on assessments that are not paid when due bear interest from the due date until paid at the rate provided in the declaration of covenants or the bylaws of the association, which rate may not exceed the rate allowed by law. If no rate is provided in the declaration or bylaws, interest accrues at the rate of 18 percent per year.

(a) If the declaration or bylaws so provide, the association may also charge an administrative late fee in an amount not to exceed the greater of $25 or 5 percent of the amount of each installment that is paid past the due date.

(b) Any payment received by an association and accepted shall be applied first to any interest accrued, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent assessment. This paragraph applies notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment. A late fee is not subject to the provisions of chapter 687 and is not a fine.

The question then becomes what is a "cost"? I think the Legislature has given us some guidance in section 720.3085 (4) Fl Stat. which says:

(a) Provide the owner with 45 days following the date the notice is deposited in the mail to make payment for all amounts due, including, but not limited to, any attorney's fees and actual costs associated with the preparation and delivery of the written demand.

So here we have the same statute referring to "costs" and "actual costs" and not defining either of them.

For guidance we need to turn to the language of the Fair Debt Collections Practices Act, which states as follows (remember attorneys are "Debt Collectors" as defined in the Act, so this limits us):

§ 1692f. Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

The instrument creating the debt is between %$#@&*! management (or management company and the Association; the debtor is not a party to that obligation. Therefore the amount is only collectible if it is allowed by state law.

"Costs" as they are generally referred to are subject to the Uniform Guidelines as to Cost Awards, promulgated by The Supreme Court. As you can see, very few "costs" that we may consider as being recoverable, such as photocopies, are actually recoverable. In my opinion, the distinction between the reference to "costs" and "actual costs" is crucial. An "actual cost" is a cost imposed in connection with preparation and dissemination of the initial 45 day letter as set forth above. That is a cost we already protect.

However any other charges imposed over and above that which is allowed by state law (as the "actual costs" are) and not part of the agreement between the debtor and creditor are NOT recoverable and subject at least my law firm to an action for violation of the fair Debt Collections Practices Act.

Hope this helps, Bob Tankel

Wednesday, June 3, 2009

Governor Signs SB 360, Vetoes SB 714

I tell ya, I have less and less respect for elected people every day...Gov. Crist signed the Growth Management, which was sponsored by Sen. Mike Bennett, R-Bradenton, on Monday, despite opposition from Tom Pelham, the Secretary of the Department of Community Affairs. The law will remove transportation concurrency requirements in the state’s dense urban land areas-- tracts with an average of at least 1,000 people per square mile or in counties with populations of at least 1 million and replace it with a “mobility fee system.”  

It will directly affect eight of the state’s largest counties and nearly 250 municipalities across the state.  Get ready for worse traffic, overburdened schools, &tc., &tc., all in the name of Economic Recovery." 

The law also will exempt from the development of regional impact process dense urban areas or parcels classified as “urban infill”, “community redevelopment” or those that are part of an urban service area. It allows for a two-year extension of permitted projects. It passed the Senate on a 30-7 vote. The House passed it by a 78-37 tally.  In the meanitme SB 714 that had a LOT of good things in it and was the ONLY community association related bill, and was passed unanimously by both houses was vetoed, go figure...

Atlantic Beach passes law making landlords responsible for repeat criminal renters

I doubt that this is constitutional, but when has that ever stopped any Legislative body?  I guess it applies to HOA's and Condo Associationw who may rent properties acquired by foreclosure, but it doesn't give much, if any leverage when owners don't do it.....

ATLANTIC BEACH, Fla. – June 3, 2009 – Despite criticism from Realtors and others, the City Commission Tuesday unanimously approved an ordinance that requires landlords to evict repeat criminal offenders who rent properties in the Mayport Road area. Landlords who don’t comply will face city fines and penalties. While real estate agents and others have called the measure unfair, Mayor John Meserve said the action simply reflects state law. “The language of how we enforce laws on those people who have rental properties that continue to rent to bad people and don’t clean up their act when talked to about it, that’s taken from state statute,” said Meserve. But during a public hearing before the commission last week, some property owners said they’re worried about being singled out and that evicting a renter is complicated, whether they break any laws or not. “It doesn’t say anything about convictions,” said Peter Sapia, who owns several rental properties in Atlantic Beach and throughout the Beaches. “Without a conviction, my attorney told me I cannot do anything.” Atlantic Beach Community Redevelopment Coordinator Dale Hatfield is handling the urban revitalization of the Mayport corridor, which includes neighborhoods about two blocks to either side of Mayport Road. He said the city will help landlords deal with law-breaking renters as each case comes up. “We are going to provide support to that landlord,” said Hatfield. “We’re going to talk to them about seven-day notices. We’re going to talk them about how to evict persons and we will go with them, if they need it, to show them how this process is done.” Hatfield, who is still a city police officer, said evictions involve a different level of “proof” than a criminal case since evictions are civil issues. A burden of “guilt” isn’t necessary, he said. The revamped ordinance seeks to get landlords to evict troubling tenants, especially in the neighborhoods surrounding Mayport Road. Atlantic Beach targeted that area for urban renewal in early 2008 and officials hope their efforts can reverse decades-old blight and crime. Some of the ordinance changes in the city’s code call for the resurrection of the Public Nuisance Control Board, which convened one time in 1990 to address one complaint but essentially dissolved after that. The city wants the Code Enforcement Board to double as the nuisance board to address complaints with tenants. The board would be able to impose additional penalties on landlords if repeat criminal offenders are not evicted. Still, Jacksonville Beach Realtor Jeanell Wilson said Atlantic Beach’s new measure seems to place blame on landlords and not those who actually violate the law. “It seems to be holding the landlord responsible for the actions of the tenant,” said Wilson. “We can’t control the actions of the tenant.” Hatfield said while the city is focused on revitalizing the Mayport Road area, they still want to be an advocate for landlords and focus on the tenants who have been involved in crimes ranging from drug dealing to prostitution in the corridor. “We will go in and do an undercover sting of some kind and someone will be arrested. It doesn’t matter if they’re convicted or not, it matters that they’ve done it in the presence of a police officer,” said Hatfield. “If something’s been done on their [the landlord’s] property, we notify them and help them. If they don’t do anything to abate that problem, then they can be held liable.”

The Florida Times-Union, Jacksonville, Drew Dixon. Distributed by McClatchy-Tribune Information Services.