HOA is trying to impose memo of lein

[ebonyknight]

I will try to keep this as brief as possible while talking about as many facts as possible. I basically want to find out if I should/could file a successful small claims court case. I have never filed one before or been involved in one.

I was trying to get a parking permit for my community. I was told that I would not get one because I was behind in my Home Owners Association (HOA) dues by over $700. I was shocked as I have been a paying member of the HOA for over 10 years and never been significantly late with my dues.

I checked my quicken (electronic bill payment software) to find out what was going on. Apparently only two of the 5 electronic payments went through (they switched management companies a year and a half ago). Those payments spanned almost a year. I was immediately angry that I got NO notice that I was behind. When I would receive a bill for the HOA dues, it wouldn't say that I was behind or had a balance. I never received any kind of correspondence that I was behind and to pay up. I spent the next two days trying to contact the management company to find out why they never notified me. I never got a call back after leaving several voice mails.

Two days later I receive a Notice of Intent to Record a Memorandum of Lien, from a law firm in relation to this issue. I got extremely mad. I called the law office and they told me to email them my grievance. My grievance is NOT the past due payments and late fees, but an additional $225 in collection and Lawyers fees. Since I have never received correspondence that I was behind or past due and it never reflected it on the dues payment bills I received, I felt it was not fair to pay them. She told me that they were meeting with the HOA board that night for a meeting and she would present my grievance letter to them. In short, I said that I would pay the balance due, including late fees, but that the collection/lawyers fees were unfair since I was never notified that I was behind.

They denied my request. I am going to request the meeting minutes and have paid the ENTIRE bill as requested. But I don't feel it's fair to send an issue to collections without having even notified me that I was behind, in any way.

Hope I haven't been too long winded.

Question, do I have a case to sue the HOA and management company for the for the recovery of $225 in collection and lawyers fees? Aren't you supposed to mitigate your damages by first asking for the past due fees before going to a collection agent?

 

[FlaRiptide]

No you do not have a winning case. From a humanistic standpoint I have sympathy for your dilemma. Yet as an accountant I must tell you that sloppy bookkeeping by both the HOA and YOU will not win your case.

The HOA should have sent you notices, yet there is no law requiring them to. You on the other hand are responsible for knowing if your debts are paid or not. Though you had sent all the payments, you should have recognized that several never cleared your bank account.

Apparently only two of the 5 electronic payments went through (they switched management companies a year and a half ago).

This tells me that you do not reconcile your checking account. If you had, you would have questioned why your electronic payments were never debited against your bank account.

Quicken simply sends a request to your bank to have them write a check. This is no different from you writing the check yourself. If after several months of the check(s) not clearing your bank, you should have researched to find out why. This is YOUR responsibility.

Sorry this sounds harsh, but what may appear to be morally wrong is not necessarily illegal.

Be careful with your HOA. They do hold the power to place a lien against your home.

If you have a small community HOA, you may wish to distribute a letter to all homeowners regarding your situation. Then with enough support on your side, request a special meeting of the Board.

My perception is that it was irresponsible of the Board to incur legal expenses to collect a HOA dues debt without previously sending a notice to the owner. Now that the Board has incurred this expense, they want to recover this possibly unbudgeted expense. Perhaps they will relent if you show them that they were just as guilty of sloppy bookkeeping as you were. If they don't back down, then get others on your side.

HOAs are usually operated poorly when the Power Freaks and/or Retired Do Nothings get in office.

Good luck.

 

[ebonyknight]

No it doesn't sound harsh and you are right, but I still think there is some culpability.

In this era of corporations and other entities getting the rights of individuals, I think that is is irresponsible.

I respect your input.

Any other opinions?

 

[FlaRiptide]

Any other opinions?

Not really. Unfortunately this is an example of what appears wrong and should have legal consequences but doesn't.

No matter how mad and upset you are and how irresponsible you think the HOA was, you would have no leg to stand on in a civil suit.

Are you aware that there is a fee for filing a civil claim. $90 in my jurisdiction. Then if you want it served by the Sheriff, that is an extra $20 - $30. The case won't be heard for several months and then if you win the Court does nothing to help you collect the judgement.

Think about it. You were preparing to sue the HOA and for what? $225 plus $110 in additional court costs, plus the headache of collecting. Worth the effort?

If you can't get the Board to reason it out with you (mitigate and split the cost), then pay it all. At the next annual Board meeting run for office - but don't run for Treasurer...

 

[ebonyknight]

Actually, I meant other people's opinions. But I appreciate the response.

I understand the cost, that's why I am trying to see if I have a leg to stand on, before I possibly waste my time and money.

 

[FlaRiptide]

Perhaps someone else will chime in, yet don't expect any different answer.

Your situation is pretty much hopeless.

Two years ago I sued a person for $350. It cost me an additional $110. I won a judgement for $440. I've yet to collect and probably will never. I'll have to renew the judgement claim every ten years and there is an additional cost for doing this.

I never really expected to be compensated. If i did, I would have accepted this person's mitigation of paying half. My satisfaction of creating torment for this individual was enough to compensate for my additional cost and efforts.

I've another situation where a fellow never paid me in full for a private party sale. He still owes $700. I won't sue, cause it would be a waste of my time and I don't carry a grudge against him like I did for the other person I sued.

Do you get the drift? Unless your claim is for $2,000 plus, it is generally not worth your effort to sue for the monetary value. If you want to sue just to make your point and have your day in court, then go for it.

 

[ebonyknight]

Anyone else have advice or does everyone agree? I am not waiting to hear what I want, I want a few opinions as to whether I have legitimate case or not.

Thanks.

 

[army judge]

Anyone else have advice or does everyone agree? I am not waiting to hear what I want, I want a few opinions as to whether I have legitimate case or not.

Thanks.

No, you have no case.
Yes, you can sue anyone for anything.
No, you won't prevail.

I've said it before, I'll say it again.
I always tell my clients to never buy a home in an area controlled by real estate Nazis and and property rights terrorists who cloak themselves in the armor of HOAS!

HOAS come replete with iron-clad protections against ever suing them.
Their protections even prevent jackbooted government thugs from shutting these property rights terrorists down!!!

If you do, you'll see your property rights trampled and abused, time and time again!

You, are living testimony to my admonition.

HOAS are far worse than government bureaucrats and elected city official Nazis and Socialists.

Why?

HOA Nazis, Socialists, and Despots could never get elected to anything.
They've never held power, and when they get it, they terrorize and abuse everyone in their path.
Your sad story is yet another testament to how far these blood thirsty despots will go to rule with an IRON PEN!