are we requried to recover court cost?

Started by BonnieG1 • 12 replies • 1445 views

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BonnieG1 (Nebraska)
Posts: 1,186

Posted:

We do have a pending court case agains a unit owner. I don't want to go into details about the case at this time.

Our documents state "In any action brougnt by the Association against an owner, the Associaiton shall further be entitled to recover all costs of the action, interest on the unpaid amount at the rate of 8% per annum and reasonalbe attorney's fees."

The owner we have a court case against is negogiating with a party to sell the unit.
My understanding of our documents is that we "may" collect court costs etc., but are not required to collect these costs.

Our President wants to hurry and place a lien on the unit for these costs. I just want the unit sold so we don't have to deal with the owner who has been a problem in many ways over many items for years.

Also how can we place a lien if we don't even have a bill to present to the owner as the case is still pending. (The slow court process is another story.)

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By BonnieG1 on 09/18/2013 6:18 AM
Also how can we place a lien if we don't even have a bill to present to the owner as the case is still pending.

From this statement it appears you don't know the costs, even if the court will award them to you, or even if you will win the case. I don't see how you can file a lien for an unspecified amount that may never happen since the lien is recovered at closing (deducted from the seller's proceeds) when the house is sold. I think you will have to wait until the case is settled, and if costs are awarded to the association, use whatever means are available at that time to collect.

SheliaH (Indiana)
Posts: 6,964

Posted:

You should be able to recover court costs - that's money the Association had to spend to pursue the debt, so not collecting could almost be construed as giving the homeowner a cash gift. I'm sure your HOA could have used that money for something else that'll benefit everyone.

talk to your attorney and have him/her check what your local or state law says about liens. You may be able to file for expenses incurred to date (including legal)and be able to amend it later.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KevinK7 (Florida)
Posts: 1,343

Posted:

I thought the recovery of court costs is through the courts - not by lien. A judge then determines if cost requested is reasonable.

KevinK7 (Florida)
Posts: 1,343

Posted:

Also, what does Nebraska state law say about recovery of court costs in regard to the type of case you have?

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Well you would have to counter sue at when they file suit. If the HOA loses, you can't recover your legal expenses or lien. If you win, and the court awards you legal fees, the next step is to recover the legal fees through the court. Another process.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Why is your attorney not answering these basic questions for you?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By BonnieG1 on 09/18/2013 6:18 AM

My understanding of our documents is that we "may" collect court costs etc., but are not required to collect these costs.

Your understanding is correct.

As I understand it, adding that phrase in the CC&Rs supports claims made to the courts when asking for legal fees and court costs. However, the validity of such a claim is something that would be decided by the courts or through agreement.

I would not simply file a lien for court costs without a court awarding such court costs. Of course, I'm not an attorney and your attorney may say it's fine to lien for such costs. However, I think it's simply asking for another legal challenge (especially if the buyer backs out because of the lien).

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Bonnie

I am not nor do I play a lawyer.

If I understood you correctly, you said the owner is looking to sell and move on. If this is the case then I say it could be foolish to stand in their way. Especially if not a lot of money is owed to the association.

Our HOA dues are $600 per year and we often have the conversation of how far do we go to collect such? Sometimes it is in our best interest to forget what you owe us, just be gone and let us get someone in that pays.

You imply the BOD wants to file a lien for what they "think" court costs might be. Meaning they have no actual idea of costs other then what is owed in back dues. Let us make a guess and file the lien for that amount. No way that can be proper.

Hope this helps.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

We fired our attorney. I don't wnat to go into detail about the firing.
Also this owner has been paying his monthly fees. At this time (Although it may have been in the past) this is not the problem we have. Again I don't want to go into detail other than to say we have a court case pending and our President is checking on the court case.

We went to court in May and the judge said he needed time to read the affadavids and would render a decision in two weeks. So much for the two week time frame.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The court system is the only ones who can say which parties recover court costs. Your lawyer has to ask the court to recover the court costs as part of the judgement. Many times judges decide each party is responsible for their own costs unless the case is so out of line, it's used as punitive damages.

I don't agree with a HOA ever suing an owner. There are other better options.

Former HOA President

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By MelissaP1 on 09/18/2013 4:06 PM
The court system is the only ones who can say which parties recover court costs. Your lawyer has to ask the court to recover the court costs as part of the judgement. Many times judges decide each party is responsible for their own costs unless the case is so out of line, it's used as punitive damages.

I don't agree with a HOA ever suing an owner. There are other better options.

We did not go to court to actually "sue" the owner. It was a remedy to a situation that the owner was not following the rules but if we won there would be no monetary gain for us. This is difficult to try to explain without giving all the details, but with a pending court case, I believe it is best not to go into details.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By BonnieG1 on 09/18/2013 6:18 AM
We do have a pending court case agains a unit owner. I don't want to go into details about the case at this time.

Our documents state "In any action brougnt by the Association against an owner, the Associaiton shall further be entitled to recover all costs of the action, interest on the unpaid amount at the rate of 8% per annum and reasonalbe attorney's fees."

The owner we have a court case against is negogiating with a party to sell the unit.
My understanding of our documents is that we "may" collect court costs etc., but are not required to collect these costs.

Our President wants to hurry and place a lien on the unit for these costs. I just want the unit sold so we don't have to deal with the owner who has been a problem in many ways over many items for years.

Also how can we place a lien if we don't even have a bill to present to the owner as the case is still pending. (The slow court process is another story.)

May means may, shall means must. However, your state law may say something different, especially if you lose your case.

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