Delinquent dues

Yes.

But.... people may bet really pissed and threaten to sue. You should post the address of people who are delinquent instead, no names. This way you are not liable for having the wrong name displayed on the bulletin board.

Do anything you can to get your dues or your you will be paying all your neighbors bills. What you really need is a large late fee. Call it an administrative fee.

BAAAAD idea to post who owes. This is usually an issue ONLY known to board members about COLLECTIONS. Expenditures are ALL member's business. It's just poor taste to post names of people who owe money.

Let me ask you this. What if you were in the hospital for Prostate or Gyncological reasons and were late on paying your dues? Would you like to come home and see your name on a bulletin board? Then you would have to explain to EVERYONE the reason WHY you didn't pay?

It's a PERSONAL issue why people don't pay their bills. Even if the reason is because they just don't want to or are mad at the HOA. Just do NOT post this information in general. It's just a BAAAD idea all over....

Yes ... if they want to potentially violate consumer protection or fair debt collection laws.

I would not be one to take that chance. The HOA is attempting to collect a debt, which falls under debt collecting same as your credit card company or anyone else who would be owed money and collecting said debt. A quick search under fair debt protection & homeowner association brought up this article:

http://www.ahrc.com/new/index.php/src/news/sub/legis/action/ShowMedia/id/511

This article states:

A CAI lawyer, Gerald J. Van Gemert from Irvine, California, has been arguing that homeowner associations do not come under the Fair Debt Collections Practices Act. Van Gemert does collections for homeowner associations.

After losing his case in Federal Appeals Court (10th District, New Mexico), he filed a Writ of Certiorari with the U. S. Supreme Court. on October 2, 1998. The Supreme Court summarily denied his Certiorari, thereby denying his appeal and upholding the ruling of the 10th. District Federal Appeals Court.

In another New Mexico case, by homeowners Mae Stanton and others against their homeowners association, its lawyer and manager, the United States District Court again confirmed that the homeowners association collection lawyer and property manager are debt collectors.

Case 01CV00380 s Elvira May Stanton and thirteen others vs North Hills Property Owners Association , Rodney J. Starkweather. attorney at law RR Realty (AMREP) and Management Company, Gary R Johnson DOC 267 Memorandum Opinion & Order Filed December 19, 2002

In spite of several Federal Court rulings in various States that homeowners are protected by the Federal Fair Debt Collections Act, CAI lawyers and managers cajoled Washington State politicians to pass a law this year, declaring that homeowner association managers who collect debts, are not debt collectors.

Cities do it all the time? Dont pay your property taxes? Your listed by name in the town's annual report and amount.

From the voice of experience doomed to be not-listened to until it happens to you: It is a BAAAAD IDEA TO POST INFORMATION ABOUT COLLECTIONS TO NON-BOARD MEMBERS!!! Just sayin you will learn that HARD lesson the even harder way once you do it...

We ONLY allowed board members to know the status of who owed us money. That didn't mean that the other members did not know. We just referred to the LOT NUMBER of who owed and NOT people's names. Each situation was different with each LOT owner. Some had financial problems, health issues, or just refused to pay. I just found ways to work around these issues either legally or humanly.

The people with financial issues I worked with them to pay half dues or left off late fees. Once they could catch up I then had the DOUBLE their due payments until paid off. This meant we got paid and they avoided legal actions. It worked well for both sides.

For those who just refused to pay. We liened them as legally allowable. Eventually I even foreclosed on one of them. We did receive a few paid off liens over the years and there was never a need to call anyone out.

I think that I would NOT like someone to post for all the members to see what I owed the HOA. If I am willing to do that to someone else why shouldn't it happen to me?

Melissa - With all due respect, we get it that you're passionate in your viewpoint (given the capitalization and repeat-letter emphasis of certain words in your posts), but your opinion is just that, an opinion.

Here's a contrary one.

Our HOA attorney (specializes in HOA Association law) have given our BOD counsel that delinquencies should be part of all BOD Meeting minutes from the first occurrence of the delinquency. This establishes the fact that the BOD knew and recognized the delinquency was present. It also sets the start date in the event future legal action is necessary. Our BOD minutes are open records and, in fact, we post them to our website. It has absolutely nothing to do with the "why's and wherefor's" of the situation (which indeed may well be personal), it's merely a statement of fact provided to the members of a registered corporation to whom the BOD has fidcuciary responsibility.

So no - we don't "post" the names on a sign, bulletin board, etc. but the information is readily available to the membership.

The fair debt collection practices act does not apply to a creditor (like an HOA) attempting to collect on its own debts. The act comes into play only if a creditor hires a third party to intervene on its behalf. The act is intended to stop bad practices by agencies when the debtor is forced to deal with someone who can't address the fundamental validity of the debt. If an HOA informs its membership of the names of its own delinquent members it can never run afoul of the fair debt collection practices act.

What it comes down to is whether the board respects the sensibilities of its delinquent members and believes that acting in good faith is the best way to eventually get paid, or if the board believes that debtors will not pay unless they are forced to do so by legal action or humiliation.

Our association deals with delinquencies on a case-by-case basis. Some homeowners are behind on payments for valid reasons and are offered an extended payment plan. Others simply don't want to pay their dues and they get very little sympathy.

Legalities aside, it's unprofessional, petty and low-rent to post names of delinquent homeowners. You want the peoples' money, not their shame. This proposed action, in any situation, reflects board members linking their emotions to their HOA board service, gaining some personal satisfaction by outing a homeowner. Time to reassess the nature of serving.

Amen, Kelly! It seems to me that the branding of scarlet letters went out of vogue many moons ago.

Ann

Janet - You seem resistant to the idea that HOAs are not subject to this law. You acknowledge that they are not "absolute" (whatever that means) debt collectors, but then turn around and, in essence, call them such.

Obviously you didn't read the content of my previous post where I pasted the actual language from the Federal act that would exempt HOAs from being covered by it.

The page you reference contains guidelines for a debt collector, not an HOA. It starts out by saying, "all who attempt to collect [delinquent homeowner assessments] debt are subject to this Act" meaning that any debt collector is subject to the act. The HOA is not a debt collector under the terms of the act.

The act defines a debt collector as, "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts..." The principal business of an HOA is not collecting debts.

The act goes on to say that a debt collector includes "any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." The act clearly indicates that a creditor collecting a debt in his own name is not subject to the terms of the act.

The page you reference also contains the statement, "Cease communication if the homeowner notifies you in writing that he/she refuses to pay the debt." This clearly does not apply to the HOA, but instead to a third-party debt collector. The HOA can send its members statements, demand letters, or other notices as often as it wants. A debt collector, as opposed to a creditor, must indeed cease communication when asked to do so in writing. A creditor has every right to pursue a debt themselves.

There seems to be continuing confusion regarding the allowed activity of a debt collector, i.e. third party who is acting on behalf of a creditor, and the creditor themselves.

No one should be paying higher HOA dues to cover any non-payers. They should continue to pay their regular dues until voted to raise HOA dues to cover additional expenses. So I do NOT believe anyone here is voluntarily paying more to cover any non-payers.

With that said ANY HOA should have budgeted their expenses/cost of operations to cover a certain percentage of non-payers who may be in their midst. A good rule of thumb depending on size is about 5-20%.

A HOA is ONLY funded BY it's members FOR it's members. They are also NON-Profit corporations which require them to spend the same amount of money that comes in as it goes out. So essentially the BASIS of a HOA is to "carry" to load of ALL it's members.

Again our HOA did NOT post names but referred to LOT numbers of the non-payers. We handled the collections among the board members only. Otherwise it would contribute to vigilantism mentality. The Golden Rule should rule in a HOA....

Good HOA membership is an ideal. The uncertainity of living in this envirnoment goes both ways. Not all expectations of anyone moving into such a community are always met. Yes, it may seem obvious that fees should be paid, but unless there is evidence that there is a willful disregard for these requirements, then I strongly counsel communication, negotiation and compromise, if necessary.

Being rigid and sanctimonious in one area only leads to more rigidity and lack of resolution of disputes in another. Those who pay their fees on time may find that some issue over where they park or how they renovate their property may be a source of great problems for them later on. Being hard-nosed always has unanticipated negative consequences, since trying to force someone to do something they don't or can't do rarely gets the desired results.

Living in HOA requires an ability to work with and not against ones neighbors in order to come to some resolution of all manners of differences. In my experience if good faith attempts are made to deal with uncooperative and self-absorbed members, then there may well be the need to take serious action. Order and fairness require that everyone do their bit to comply with the accepted practices and rules of the community. Extreme measures, like liens, however, should be a last resort after all other avenues have been tried and failed. Otherwise, you may find that people will just withdrawn into a very destructive passive/aggressive mode and mind set.

Successful communities not only pay their bills, but also have participation and support from a large portion of their members in all the several areas that make a community good in which to live.

Lot numbers are accessible by PLAT information provided at the courthouse. It doesn't contain names on it. Unless you make a concerted effort to find out this information it wasn't for public posting.

Accounting and board members often didn't even know who owned the property either. We didn't have mailboxes but a mailbox at the entrance with individual LOT numbers on it. No names or addresses even on the mailboxes. Violation of Federal law to open mailboxes that are not yours. Plus owner's didn't have their mail delivered to that address.

It isn't as easy as you would think. Granite that pretty much everyone did know who we were talking about when we referenced a lot number. It still added a bit of respect and discretion by NOT openly providing the names.

In the end it is irrelevant on knowing anyone's name. It matters that your board takes the appropriate actions to resolve the issue. We had an agreed 6 month owed we would LIEN. If it was 1 year non-payment and no action we would vote for starting the foreclosure process.

Hi Peter:

Per your question here is the information:

The Florida Consumer Collection Practices Act Prohibits Associations From Posting Delinquency Lists and Taking Other Actions to Collect Assessments and Maintenance Fees.

http://www.floridacondohoalawblog.com/2009/06/articles/assessmentscommon-expenses/posting-debtor-lists-to-collect-delinquent-condo-hoa-assessments/

It would only take posting where individuals walking by who are not members of the HOA can view for someone to potentially claim “privacy” or “defamation” violation. You do not see other creditors or an entity similar to HOA’s who are owed debts posting names of individuals. Some feel there is no potential liability, while I on the other hand feel that there is potential liability. It would only take a minor slip regarding certain sections of the law for someone to feel they have grounds for a lawsuit. Even not counting potential liability there is also the issue where postings of this nature will only cause hate and discontent within a subdivision and between neighbors in an HOA.

Because of FDCPA definition of debt:
A "debt," the collection of which is governed by the FDCPA,5 is defined in the Act as any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

Here are some statements from court cases:

Thies v. Wyman, 969 F. Supp. 604 (S.D. Calf. 1997):
In response, the homeowners sued the HOA in federal court under the Fair Debt Collection Practices Act, 15 U.S.C. section 1691 et seq. ("FDCPA"), seeking damages and attorneys‘ fees. The HOA sought to dismiss on the ground that HOA dues are not "consumer debt" arising out of a "transaction" under the FDCPA. Held: in the Ninth Circuit, FDCPA "debt" is not limited to credit extensions. (The court acknowledged possibly contrary authority in Zimmerman v. H.B.O. Affiliate Group, 834 F.2d 1153 (3d Cir. 1987) (tort liability to pay for pirated cable signal is not consumer debt).) Also held: because the services provided by the HOA in exchange for dues are primarily for personal, family, or household purposes, the HOA dues constitute "consumer debt."

Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477 (7th Cir. 1997) (past-due condominium fees are a debt under the FDCPA because assessments used to improve or maintain commonly-owned areas qualify as personal, family, or household uses and confer a direct benefit on residents). Community Associations Institute ("CAI") filed an unsuccessful amicus curiae brief via counsel from Chicago, Denver, and Braintree, Massachusetts, arguing that the FDCPA should not be applied to HOA‘s.

There are other cases of this nature and I did not even review any “privacy” or “defamation” violation court cases.

Here is another attorney site not recommending publishing names and which states:

http://www.berding-weil.net/articles/dont-publish-names-of-owners.php

The Fair Debt Collection Practices Act

The FDCPA is a federal law that regulates the collection of debts which can include assessments. The law does not generally apply to restrict how creditors (like an association) collect their own debts but does impose restrictions on third party collections. In a particular case, this may or may not include an association's lawyer or manager. It is very likely that the publication of a list of delinquent owners would be contrary to the privacy protections contained in the FDCPA.

Right to Privacy

“Defamation” is basically oral (“Slander”) or written (“Libel) statements that are intended to injure someone's reputation. We've all heard the phrase “truth is a defense” to defamation claims but this is inaccurate when it comes to the publication of “private facts”. The first California case to acknowledge a right of privacy, decided in 1931, upheld a claim based on the publication of private facts. The California constitution now gives our citizens a right to privacy. The main question is whether the facts are private and not of legitimate public concern and if publication to a specific group for a specific purpose would be privileged under §47(c). In one homeowner association case, the court recognized the members have an expectation of privacy when it comes to the casting of ballots (Chantiles v. Lake Forest II Master Homeowners Association (1995) 37 Cal.App.4th 914); it is easy to imagine a court would extend this rationale to financial relations between an owner and their association and that breach of the privacy expectation would support claims against the association and others who participated in the publication.

Because of some of these court cases you now have seminars being offered such as:

As a short introduction to this presentation, the stated purpose of the Fair Debt Collections Practices Act (“FDCPA”) is “to eliminate abusive debt collection practices by debt collectors.” Although many of us do not equate efforts to collect homeowner association assessments with ”debt collectors,” the FDCPA has been expanded by judicial interpretation to include these assessments as debts covered by the FDCPA.

The application of FDCPA to associations is complex. If FDCPA applies, failure to meet all of its requirements can be expensive. Rather than be exposed to potential liability under FDCPA, caution should rule the day.

Some have stated they feel posting information is OK and if some HOA’s want to post names and potentially face litigation, by all means do as you please. However, be aware that we have touched federal law and only a few states on this subject, so before posting lists of names be sure to check your local state laws.

Others of us will err on the side of caution and avoid potential litigation.

Something to keep in mind is if you are sued regarding FDCPA then potentially your D&O policy may not cover.

Rights to privacy are far more limited than most people understand. There are only four categories of privacy rights:

1. Unnecessary public disclosure of private facts in a way that is offensive to an ordinary person.
2. Distortion of facts to give a false impression of someone.
3. Trespassing on private property.
4. Unauthorized use of a person's likeness or name.

Of these, only the first might apply to association boards identifying delinquent homeowners. And then, this first category of privacy rights applies only to public disclosure.

Homeowners who are members of an HOA should know that there are no privacy laws or practices that prevent the Board from making their account status available for viewing by other members of the association. If they want to keep their delinquency from their neighbors they need to pay their dues on time.

What constitutes "delinquency" is up to the definition of the board. We don't consider an account delinquent unless it is late and the homeowner is not keeping up with an established payment plan.

Anyone in our association that finds that they cannot pay their dues can arrange with the board for more time. We even go further and contact each homeowner in person when we don't get their check on time. The board then considers each circumstance, and more often than not, arranges for an extended payment plan. Any discussion about a payment plan and the circumstances behind it is private information, discussed in executive session, and not released publicly.

Only those homeowners who are truly delinquent for no good reason have their names publicised.

Homeowners often find it easy to put paying their dues at the bottom of their priority list, since they know that it is hard for the HOA to enforce collection. The knowledge that any delinquency will be shared with their neighbors encourages homeowners to put HOA dues higher up on their list. This doesn't have to be a mean-spirited thing, but just an assurance that no one can neglect their obligations to the association in secret.

Despite a foreclosure and a bankruptcy in our neighborhood, we had 100% compliance with dues payment last year.