HoA Foreclosure in Texas

Discussion in 'Use of the Law Forum & News' started by Cdotson, Nov 9, 2012.

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  1. Cdotson

    Cdotson Law Topic Starter New Member

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    My HOA recently placed an expedited foreclosure on my property for past due fees. I dispute the fees because they have went from $58/mo to $158/mo, and they add an additional $30 for late fees, another $230 just to place in a 8 month repayment plan, along with other "legal fees".
    What can I do?
    My mortgage is current, credit good. My spouse, the property owner is in the Army reserves, also a veteran.
    The HOa sent letters while he was away at military training, I faxed them his official orders.
    Also, many homeowners in my neighborhood are disputing the fee increase...we were promised a park, club house, but have nothing! Also, there are complaints of our common area lawn not being maintained, one week our trash was not collected, etc.
    Can I appeal or figure out a way to settle?
    I am a Texas resident...Harris count(Houston).
     
  2. disagreeable

    disagreeable Well-Known Member

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    Pay the fees!!! You can dispute the fees in accordance with HOA and state laws. You are not going to win on the "screw you defense".
     
  3. army judge

    army judge Super Moderator

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    Have I got great news for you, madam?

    Yes, why yes, I have!!!!

    Here in our lovely and free republic of Texas, you can't foreclose on a person's home, UNLESS you hold the note.

    Texas homestead rights protect property from all but the few types of constitutionally permitted liens that may be imposed against a homestead.


    Texas homeowners are protected from a forced sale for the payment of debts, except for debts incurred for purchase money on the homestead, taxes on the homestead, valid mechanic's liens for work or services performed on the homestead, certain extensions of credit such as a home equity loan, and certain reverse mortgages.

    A Texas homestead is not, however, secure from seizure for a debt owed to the federal government, or from an encumbrance existing on land prior to its dedication as a homestead.

    Someone potentially could file a lien against your home, if they got a judgment, but foreclosure, no way.

    Many, many moons and suns ago, our wise forefathers gave us homesteaders laws.

    It seems some of those old dudes, back in them cowboy times would gamble away their ranches, trying to draw that straight.

    Well, that would leave ma and her little rag muffins with no where to live.

    Our Texas Homestead Act offers us all constitutional protection, having withstood the test of time and remained virtually unchanged, as we have moved from the 19th century through the 20th century and into the 21st century.

    The practical protections of the homestead laws prevent any creditor (except for the mortgage holder, a taxing authority, or the holder of a note created for a home improvement loan) from forcing the sale of the homestead to satisfy nonpayment of a debt.

    It is difficult to "abandon" the homestead protection to borrow against its equity.

    An owner who wants to maintain property ownership and be able to borrow against its equity would have to move out of the property and demonstrate it is now being used as rental/income-producing real estate and that he or she has established a new homestead elsewhere.

    It is interesting to note that home equity loans were not available in Texas until the constitution was amended, effective January 1998. Home equity loans in Texas involve numerous restrictions and requirements that may not exist for such loans made in other states. The amount of a home equity loan plus the balance of the first mortgage may not exceed 80% of the value of the property, thus leaving a 20% equity cushion at the time of the second lien.

    So, this is nothing more than a bluff.

    No one but the lien holder, and few governmental entities can foreclose on your home.

    A creditor can place a lien against your home, so can a contractor, but not a Home Owners Association.

    Does the HOA hold your note? Then, not to worry, madam, not to worry.

    Here are sites offering additional insight on our unique Homestead Act.

    http://corporate.findlaw.com/litigation-disputes/an-overview-of-the-texas-homestead-law.html

    http://www.tshaonline.org/handbook/online/articles/mlh02

    http://www.lonestarlandlaw.com/Texas-Homestead.html







     
    Last edited: Nov 10, 2012
  4. guestpost

    guestpost New Member

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    I've read that the Homestead Act is waived under HOA bylaws....is this true?
     
  5. Cdotson

    Cdotson Law Topic Starter New Member

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    I've read that the Homestead Act is waived under HOA bylaws....
    So I guess the Homestead act doesn't protect me
     
  6. army judge

    army judge Super Moderator

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    Normally, you can't waive a right.



    Sent from my iPad3 using Tapatalk HD
     
  7. addie12

    addie12 New Member

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    I live in Texas as well and received the same notice a LONG time ago. They have done nothing. They said they filed a lien and I received a paper saying that. BUT, they have not in any way tried to take our home. So yes, Army Judge is correct. :)
     
  8. guestpost

    guestpost New Member

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    Thanks! I see how these companies can scare you....all of this has only empowered me to attend the meetings and be more active as a homeowner!;)
     
  9. Fe3O2

    Fe3O2 Guest

    I'm not an attorney but I am on an HOA board in Texas. An HOA can foreclose on a property for non-payment of dues and attorney costs from trying to get you to collect. From what I can tell, this is usually the process. The HOA or its agent sends you the bill for your dues, then they mail you past due letters each one more threatening than the last. After about 4-6 months of this they either refer the account to a collection agency or the HOA attorney. Most HOA's have a collection agreement with their attorney that allows them to take whatever steps they want to collect from you, including forclosure. They sometimes take it as far as getting a judgement in favor of the HOA (1 step short of foreclosing the lein). Then the HOA board has the option of actually foreclosing the lein. The fact that you are now active in your HOA may be all that saves you being foreclosed on, that is other than paying your bills. If you can't pay try to work something out with the board. They are your neighbors and hopefully will be understanding of your situation. Many times these situations get taken way too far by overly aggressive HOA management companies and attorneys, and its faceless. No phone calls or talking face to face, just aggressive sounding letters from people you have never met. Getting to know your neighbors and the board members is the best way to stop this stuff if you are in a situation where you can't pay.
     
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