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HOA sueing for dues on rental - no contact from them ever prior to suit

Discussion in 'Homeowners Associations & Boards' started by uktej, Dec 14, 2017.

  1. uktej

    uktej Law Topic Starter New Member

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    Jurisdiction:
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    Hello,
    Only have a day here so if anyone can help quickly would be greatly appreciated.

    Situation is as follows:

    - Conerns HOA dues for a rental property which I have never resided at
    - HOA contracted out to management company
    - management company changed over ~18mo ago
    - I have never received any communication from the HOA or new mgmt. company. Consequently I never switched over the payments. After a while they started to bounce from the old company, and my error I never followed up on that.
    - Few days ago I get in the mail a Summons, forwarded to me by tenant
    - Tenant's son had accepted the document service (in my name!) and sat on it for a month. So improperly served. I filed notice of appearance with court just in case to prevent default judgement.
    - I'm on the hook for ~$1400 dues/late fees (fair - ok), and ~$3K in HOA attny fees.
    - Clearly mgmt. company never verified that I the owner actually reside at the property, where they have allegedly been sending all communications. Tenant has never forwarded anything (until summons) and denies receipt. Who knows...
    - A 3 minute search on the county records site would have yielded a bunch of documents with my primary residence address. Also the prior mgmt. company was in contact with me before the switch.

    My question is - do I have any legal basis for getting this dismissed/fees reduced based on the fact that it's essentially frivolous and unnecessary, and very clear that none of the HOA / management company or Attorneys have ever made any effort to make confirmed contact with the property owner.

    Thanks!
     
  2. adjusterjack

    adjusterjack Super Moderator

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    No.

    The HOA had no obligation to contact you at all, ever. It was all up to you to get your dues payments to the right place.

    Read the CC&Rs (HOA docs). Your responsibility is addressed by them.

    By the way, you were properly served, make no mistake about that. And that you filed your appearance makes any argument about that moot.

    I suggest you call the plaintiff's attorney and try to settle out of court for a discount and get the case dismissed.
     
  3. mightymoose

    mightymoose Moderator

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    This does not mean they didn't attempt to contact you. You will have to get in touch with them to find out what attempts they have made previously, if any. It may not really matter anyway.

    It is good you recognize that. You likely already understand how this will play out.

    Not necessarily improper. Some documents do not have to be served in person and substitute service is allowed. If it was the only address they had for you it may be legitimate. If you need time you can ask for a continuance.

    Better than nothing, but best to appear in person and answer any questions.

    The attorney fees may be negotiable. They will have to justify those fees and it could be effected by their ability to show attempts to contact you before suing. So far all they have done is file a claim... Make them account for every dollar.

    Ah hah. So there were other attempts. What informal do you believe they had or should have had in order to contact you elsewhere? Still, this argument only buys you some time.

    Most of my own mail goes directly in the trash and is never opened. If a claim is made that communications were sent then ask for delivery receipts. Again, this doesn't address what you owe.

    Reasonable arguments, but they do not address the fact that you were not paying your dues and you were aware payments were not going through. All of this goes toward proper service which really is moot now that you have received the summons and filled a response.

    Dismissed? Incredibly unlikely based on what you've said here.
    Reduced? Maybe... If you can make a good argument for it.
    You owe that past due monthly amount and probably some late fees. That is unlikely to change unless you settle outside of court. The attorney fees might be reduced if they can't reasonably account for the amount they claim. It's up to you to obtain that information.

    You should expect to be ordered to pay most of what is being requested if not all of it. You admit you dropped the ball early on and failed to follow up on it. You had responsibility to pay. They had a lesser responsibility to hunt you down to collect.
     
  4. uktej

    uktej Law Topic Starter New Member

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    Thanks for the speedy responses, much appreciated.

    Yes, clearly I messed up here no dispute about that.

    Their only method of attempting to contact has been (allegedly) sending mail to the property, and assuming that the owner is living there. Rentals are not a rare thing,.

    It's frustrating because it seems entirely unnecessary for this to have been taken to a suit. Minimal effort on mgmt. company part (even more the attnys who know the records systems inside out) would have yielded my contact information. Sure, charge me for the effort. But the suit is overkill, esp. for 1400 on a 340K property. Even more so that the mgmt. company is hired by the owners.

    What I'm hearing is I have no real chance of getting anywhere here, and I'm assuming trying to represent myself in Superior Court is not a great idea.

    Thanks.
     
  5. adjusterjack

    adjusterjack Super Moderator

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    MM makes a good point about attorney fees. That could be an estimate of fees that could be earned if the case goes through trial.

    Understand that the more you make the attorney do, the more of his time you will pay for.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    On the contrary. How many owners are there in the HOA? 50? 100? Many hundred? You have no idea what it takes to manage all those accounts and go after recalcitrant owners for delinquent dues. Some HOAs go the lien route and never get the money while others (like yours) keep an attorney on retainer and file suit as a matter of routine.

    You can bet that the HOA will make their lawsuits public to the HOA members as an incentive for others to pay up their arrears.
     
  7. mightymoose

    mightymoose Moderator

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    I suspect your best bet is to contact them and make a settlement offer. You know you owe the past due fees. Add a little bit to account for their trouble and potential legal fees. It is in everyone's interest to avoid court- especially yours because you are most likely going to end up paying. If you negotiate a settlement to avoid court you at least have some control over the amount.
    If you reach an agreement make sue you get it in writing stating it is paid in full.
     
  8. uktej

    uktej Law Topic Starter New Member

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    That's what I'll try tomorrow.

    To be clear though, I don't see how I was properly served. The property has never been my usual abode or usual mailing address.

    Thanks.

    RCW 4.28.080
    Summons, how served.

    (16) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.
    (17) In lieu of service under subsection (16) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, "usual mailing address" does not include a United States postal service post office box or the person's place of employment.
     
  9. mightymoose

    mightymoose Moderator

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    If it was the only address they had for you then it MIGHT have been a legitimate service, especially if they followed up by mailing a copy. It would be something the court would have to determine.
    Who knows if they realized you lived there or not.
    It's a moot point since you did ultimately receive the notice and already mailed a response. You could not possibly argue that you had no knowledge of the suit due to improper service. You could only argue a technicality that it wasn't done right and you lost time to prepare. It is not grounds to dismiss the whole matter outright.
    Improper service would only delay the action a short s time so proper service could be made.
    None of this should really matter because it is likely in everyone's best interest to settle the matter outside of court.
     
  10. uktej

    uktej Law Topic Starter New Member

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    Ok, so I made an offer (amount owed + 1/2 legal costs = $3600) and they ("The Association" - attny wouldn't say whether that was mgmt company or board) refused.

    The breakdown of costs is below. Total legal fees/costs are 2x the amount owed.

    Is this likely to be deemed reasonable if I take it to court? Or any chance of it being cut down/split between parties?

    Thanks!

    Total $5363

    Dues, late fees, interest owed $1850
    Title report $460,
    Attny fees $2600 (incl filing fee 250, billed sv
    Record fee 148
    Prep settlement statement 125
    Dec legal est 125
     
  11. army judge

    army judge Super Moderator

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    The HOA rejected your offer.

    It doesn't matter what anyone has to say about this matter.

    You must decide whether you pay the tribute demanded, wait for the HOA to sue you, or you sue the HOA.

    Again, you need to be consulting with real, licensed lawyers in your jurisdiction.

    It is, after all, your assets and FICO that are potentially in jeopardy.
     
  12. adjusterjack

    adjusterjack Super Moderator

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    The attorney probably has receipts for all the expenses so they would be compensable whether you think they were necessary or not. It's not your call to make.

    That leaves the attorney fees. Subtract the filing fee and you get $2350. Divide that by an average rate of $300 per hour and you get about 7.8 hours.

    Did it take that long to consult with the client, create the file, analyze the delinquent account, prepare the lawsuit, file it, review the affidavit of service, follow up with the client, etc?

    Maybe, maybe not. But the fact remains, going to court will result in even more billable hours added to your debt because you owe the money and you'll lose the case.

    I suggest that your last option is to call the lawyer and say "How much of a discount will you give me to settle the case for cash today?"

    Whatever the response is, that's what you pay even if it's for the full $5363 because they have you over a barrel and you have no leverage.
     

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