Recently, a couple in Central Florida did not pay their homeowners’ association (HOA) fees and soon found themselves under the threat of foreclosure. One of the homeowners, Cindy Decker, says that she paid the HOA fees, as well as the late fees the HOA added. Still, even though she had brought her status up to date, the HOA continued to threaten her with foreclosure. The HOA blamed her for paying the wrong law firm after the HOA had changed attorneys. In the end, Decker and her husband won the case against the HOA and were allowed to remain in their home.
While the above story had a happy ending, it is not always easy to see that kind of hope when you are facing an HOA foreclosure. Fortunately, there are many defenses to foreclosure, even when your HOA is the one threatening you with it.
How Can an HOA Foreclose on a Property?
Homeowners’ associations govern planned developments such as condominiums. The property may offer many amenities, such as parks, gyms, and pools. The amenities are jointly owned by homeowners within the community that bear the costs of repairing, maintaining, and replacing the amenities when necessary. To do their part, the homeowners must all pay HOA fees to cover the costs of the maintenance and repairs.
A homeowner’s responsibility to pay HOA fees is generally covered in a Declaration of Covenants, Conditions, and Restrictions (CC&Rs). When homeowners do not pay the fees and assessments as outlined by the CC&Rs, the HOA may place a lien on the property. The HOA may also report the lien to the county recorder to provide notice to the public that the lien exists.
Once a lien has been placed on the property, it is generally the first step towards foreclosure. So, a homeowner could face foreclosure even if they are current with their mortgage and only owe a few hundred dollars in HOA fees. However, it is important not to panic because there are many defenses available.
Sometimes, assessment liens are not valid, or they may contain a significant amount of mistakes due to improper accounting by the association or the management. When the management company does not properly account for your payments, it can provide a valid defense against an HOA foreclosure.
A foreclosure defense lawyer can require the HOA to explain the amounts they are asking for, and verify that the accounting was done as required by law. The calculated amounts must be outlined to show the interest, late fees, fines, and assessment fees the homeowner is being asked to pay. When the HOA cannot explain the amounts they charged, and the fact that they were calculated as allowed by the law, the homeowner will not face foreclosure.
Determining when fees are unreasonable is sometimes open to interpretation. A foreclosure defense lawyer can determine when the fees being charged are unreasonable, whether they are late fees, management fees, fines, or accrued interest. For example, a homeowner may owe $400 in assessments and are late in paying it. While the HOA can place a late fee on that amount, the amount must be reasonable. If the HOA charged another $4,000 in late fees for the $400, particularly if the late fees covered a shorter period of time, a judge would likely determine the late fees are unreasonable, which can provide a defense to foreclosure.
HOA Does Not Have Authorization to Foreclose
Many HOAs are very transparent and honest about what happens if a homeowner does not pay their fees. While the regulations and rules governing the HOA often provide the HOA with the authorization to foreclose, that is not the case for all HOAs. It is crucial that homeowners know the provisions of the laws regarding their homes. A foreclosure defense lawyer can analyze the agreement between the homeowner and the HOA to determine whether the HOA was authorized to foreclose. When the HOA does not have the authority to foreclose on a property, it can serve as a defense to foreclosure.
Payments that Were Misapplied
Homeowners sometimes make appropriate payments, but the HOA misapplies those payments. For example, an HOA may charge for an assessment, but then misapply the assessment fees paid by the homeowner as a fine. To use this defense, homeowners should remain very observant about the payments they have made and what they were for, so they can better understand when those payments have been misapplied. A foreclosure defense lawyer can also advise on when payments have been misapplied and when this can be used as an effective defense strategy.
It is sometimes possible to use Chapter 13 bankruptcy as a defense to foreclosure. It is important to understand that when filing for bankruptcy, it can cause a credit score to drop by 85 to 160 points. Through a Chapter 13 bankruptcy, the mortgage and any other fees associated with the property are restructured into a payment plan that is more manageable for the homeowner to pay.
How to Protect Yourself from HOA Foreclosure
While there are many defenses available for an HOA foreclosure, there are also ways to avoid it altogether. First and foremost, homeowners should document any payments they make to the HOA and insist on a receipt for any payment made. Copies of the receipts should be kept in a safe place so they can be used to fight any future foreclosure. If a dispute still arises, homeowners should speak to a Florida foreclosure defense lawyer that can advise them of their rights.
Call Our Foreclosure Defense Lawyers in Florida Today
Sadly, there is more than one way Floridians can lose their home. While many people think it is only the lender or servicer that can foreclose on a home, that is not true. Regardless of your situation, if you are facing foreclosure, it is important to contact a Florida foreclosure defense lawyer. At Loan Lawyers, we understand that there are defenses available that can keep you in your home and will use them effectively to give you the best chance of success. Call us today at 954-807-1361 or contact our experienced legal team and schedule a free consultation with one of our skilled attorneys.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 2,000 homes from foreclosure, eliminated more than $100,000,000 in mortgage principal and consumer debt, and have recovered over $10,000,000 on behalf of our clients due to bank, loan servicer, and debt collector violations. Contact us for a free consultation to see how we may be able to help you.