Im IN a Dispute about fee's

MichaelM40 (California)
Posts: 5

Posted:

Hi.
How do i tell an argumentative homeowner that they DO in fact owe the dues that they are in dispute of with out going further .
I send collection letters but she disputes them ALL...

PLEASE HELP...
Maybe some type of letter format to easy end this would help...

THANK YOU

JohnC46 (South Carolina)
Posts: 14,265

Posted:

What does she dispute and/or not understand?

If she does not listen to you, have the association lawyer write a polite/threatening letter.

MichaelM40 (California)
Posts: 5

Posted:

she is disputing the fact that her check bounced last year...
but I sent her Our records showing bounced check including nsf...

She see's the check.. and recognizes that is was wrote for payment, but when i tell her the check bounced and send her record of, she continues to state its not true and Im harrasing her.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By MichaelM40 on 09/19/2013 2:23 PM
she is disputing the fact that her check bounced last year...
but I sent her Our records showing bounced check including nsf...

She see's the check.. and recognizes that is was wrote for payment, but when i tell her the check bounced and send her record of, she continues to state its not true and Im harrasing her.

Ask her to show you a bank statement indicating when/where the check in question was debited from her account. Most bank statements I've seen show the check number, the amount debited, and the date it was debited. Some statements also show pictures of the checks that were paid by the bank.

MichaelM40 (California)
Posts: 5

Posted:

thank you

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Simply show her the bounced check, and tell her the late dues policy from today forward. In 60 days you go to collections with xx fees, in 90 days it goes to a lawyer who will tack on legal fees of $2200, in 120 days foreclosure process will begin. Once the home is awarded to the HOA she will be evicted.

If she does nothing to correct this continue with your collection process. You cant force her to pay, but the legal process will continue.

MichaelM40 (California)
Posts: 5

Posted:

The funny thing is ... I showed her the check she sent... AS WELL as the bounced check WITH the nsf Slip that they send back AS WELL as the Bank statement .... but she still fights it....

it tends to be rather comedic... but im almost at the point to say THIS LADY CANT BE SERIOUS....

DaveD3 (Michigan)
Posts: 796

Posted:

Then just keep marching on. You have everything you need to support your case. If need be, refer her inquiries to the HOA attorney

JH3 (Maryland)
Posts: 67

Posted:

This is exactly what Courts are for. File suit and bring her to court. Let her talk to the judge.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Don't bring them to court. If they owe the money, a lien is a much better option and less costs to everyone. The issue is to have a time line set up in which to pay the amount owed. I keep preaching this like a broken record. However, your HOA should have a time line set up of which when to take action. It comes across as "Selective enforcement" when one randomly selects today is the day we decide to collect on you know who... We set up a policy of 6 months we liened, 1 year we DISCUSSED foreclosure. Having a defined time or consequence is something your HOA should look at to help resolve issues such as this. Plus need to make it at an amount where you would break even with the legal costs of filing a lien and money owed. The lien is to have your legal costs be part of the overall collection. However, it never makes sense to file a $400 lien on a $20 bill. In this situation, one check but keeping up with the payments, may be a wash. If it continues, then just add that amount owed onto the missed dues payments.

Former HOA President

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By MelissaP1 on 09/21/2013 4:53 AM
Don't bring them to court. If they owe the money, a lien is a much better option and less costs to everyone. The issue is to have a time line set up in which to pay the amount owed. I keep preaching this like a broken record. However, your HOA should have a time line set up of which when to take action. It comes across as "Selective enforcement" when one randomly selects today is the day we decide to collect on you know who... We set up a policy of 6 months we liened, 1 year we DISCUSSED foreclosure. Having a defined time or consequence is something your HOA should look at to help resolve issues such as this. Plus need to make it at an amount where you would break even with the legal costs of filing a lien and money owed. The lien is to have your legal costs be part of the overall collection. However, it never makes sense to file a $400 lien on a $20 bill. In this situation, one check but keeping up with the payments, may be a wash. If it continues, then just add that amount owed onto the missed dues payments.

A lien is better in what way?
A lien is merely a legal way of saying they owe money and establishing a place in line.

Other than that, it does NOTHING. The owner can live there for the next 80 years with a lien on their home and nothing happens. To do anything with a lien requires the HOA take action for foreclosure proceedings. Even then, the best that you can really hope for is new neighbors, not payment of the lien.

If they owe money, the court can issue a judgement against them which has more teeth than a lien. In many states, a judgement is required before a lien can be foreclosed upon.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A lien has more teeth than a lawsuit. A lien is a court judgment except without the trial. A lien will accumulate over time and covers the legal costs associated with filing it. It will stay with the home until it is sold. At which time the lien is to be paid up or it can't be sold. Making the owner stuck to the property without the ability to sell and move away.

A court judgment has much less teeth and more expensive option. A court judgment (lawsuit) does not guarantee the legal costs to be paid. The court decides who pays the court costs associated with the case. You can request the defendant pay, but the court can decide each party pays their own court costs. A lien the costs of filing/legal costs are built in. Which the cost can be free or a few hundred dollars to file depending on your state/county. You may or may not need a lawyer to file.

A court judgment does NOT accumulate over time. You basically have to file the lawsuit for example at 6 months of back dues. Well by the time the court sees the case, several more months of non-payment of dues could add up. It would require a modification once you get to court to add on those additional missed dues. Which if your small claims court has a limit, could force you to go to a different court. A time consuming process.

The biggest issue with court judgments versus a lien? The owner can sell their house and never pay the judgment! Yes, a court judgment does NOT equal payment. There is nothing holding that owner to the property so they can sell it and move away without paying the judgment. A judgment is good for about 7 years after it was issued. It would have to be renewed after that. Considering most HOA's change boards every year or 2, who is going to remember to track down this debt in 7 years? Who is going to make that effort to collect on this judgment in the first place? It costs money to make money. Even trying to attach this to their paycheck, costs money to do so.

Lawsuits should be avoided by BOTH the HOA and it's members. The solution to most issues are in your documents and internal. It is cheaper for the HOA to be counter-sued than to bring a lawsuit. My response to people who threaten to sue is "Go for it and see you in court". Most of the time they never file and it's an empty threat. If they did file, I'd just file a counter-suit for the HOA's expenses/issues. A HOA does have to be represented in court by a lawyer (or competent person chosen to represent). I'd rather pay them a few hundred dollars to file a lien, than be dragged into a court room any day of the week.

Former HOA President

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By MelissaP1 on 09/21/2013 5:31 AM
A lien has more teeth than a lawsuit. A lien is a court judgment except without the trial. A lien will accumulate over time and covers the legal costs associated with filing it. It will stay with the home until it is sold. At which time the lien is to be paid up or it can't be sold. Making the owner stuck to the property without the ability to sell and move away.

First of all, a lien is not a judgement unless it goes through the courts and is decided by a judge. Otherwise it is merely a CLAIM of lien that can be disputed in the courts. I could file a claim of lien on anyone's house that I wanted to, for any reason. They can dispute it through the courts.

And you're proving my point that a lien has NO teeth without further action.
The owner can live in a home for 80 years, and liens can pile up. What teeth do they have on their own? NONE. Yes, it needs to be settled when the property is sold. Big deal to someone who plans to live there indefinitely. It's like saying:
"You owe us money"
Yup, I sure do, but I'm not paying
"Ok, fine, then we're going to make it official that you owe us money. That'll show you!"
Go right ahead, still ain't paying
"But you can't sell your house without paying us what you owe"
No problem. I'm not planning to move. My kids can worry about that when I die.

Or the owner can file bankruptcy, or let the house go into foreclosure. Guess what happens most of the time in those cases. The HOA doesn't get paid! (depends on seniority of the claims and local laws of course)

If the HOA actually wants to collect, a lien only serves as an official step toward FURTHER ACTION, such as foreclosing on their lien. Many times, the best they get out of that is new neighbors and a lien that needs to be written off.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You file a lien just like you do a lawsuit but instead of the court/judge visit. It is another form of a court judgment. A HUGE savings for most HOA's. Plus it's just a one time fee that is also put into the lien in addition to what is owed.

If your letting a home go 80 years without taking collection steps that is on you. Not the lien. The next step is to file the foreclosure. Our policy is 6 months we liened and a year of unpaid dues depending on the circumstances, we pursued foreclosure. Foreclosure basically stops the bleeding of the HOA in hopes to get a new owner in who will pay their dues. You never foreclose on a house that is already in bank foreclosure or one owned by military personnel on duty. So there are circumstances where you do keep a lien instead of pursuing foreclosure but it still come out in the wash. The person gets foreclosed on by the bank, they do a short sale, or you wait for them to pay up to avoid the foreclosure. Which the foreclosure stops as soon as the money owed is paid.

Lawsuits are in general bad ideas for HOA's to pursue or anyone in a HOA to pursue. I always advise: Suing your HOA is suing yourself and your neighbors. You can't argue that FACT no matter how much you wish it NOT to be true or accurate. That also goes for a HOA suing a member. Your using ALL the memberships money to pursue a lawsuit against a member. Do all of the members agree there should be a pursuit and the results your HOA is spending the money on? I would not support my HOA suing members in violation or owing dues. That is ridiculous money and time wasters. There are other options if you understand your documents and stop depending on every word your lawyer tells you. A lawyer will tell you anything you want to hear but not educate you on real options that don't require them to be paid.

Former HOA President

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By MelissaP1 on 09/21/2013 9:52 AM
You file a lien just like you do a lawsuit but instead of the court/judge visit. It is another form of a court judgment. A HUGE savings for most HOA's. Plus it's just a one time fee that is also put into the lien in addition to what is owed.

If your letting a home go 80 years without taking collection steps that is on you. Not the lien. The next step is to file the foreclosure.

Thus, a lien by itself, without further action, does NOTHING other than reserve a place in line for eventual payment. Right?

And if you think you file a lien just like you file a lawsuit, you're mistaken or thinking that your local laws apply globally. I can file a lien simply by creating a CLAIM of Lien form, signing it, and paying the proper fee at my local register of deeds. No court involved.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A lien assures you money and does not matter if anyone forgets. It is on record and has to be addressed to that property no matter what. It may go away in the property foreclosure but most likely someone would prefer to sell their property first. Which means collecting on the lien at that sale.

A court judgement does NOT accummulate nor is guaranteed to ever be paid. It goes against the individual and not property. An individual can move, die, or lie. Once that person leaves who was probably a thorn in people sides, who is going to interested in pursuing the judgment? How would you garnish their checks if you do not know their social security number, job location, or new address?

A lien is not perfect, but it is cheaper, does accumulate, collects interest, a step toward foreclosure, covers legal/filing fees, goes to something that can not move away. Did you know in Florida the lien can even be collected by the new owner in some cases? Liens are better options they just aren't as sexy to say or claim as lawsuits...

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By MelissaP1 on 09/21/2013 4:53 AM
Don't bring them to court. If they owe the money, a lien is a much better option and less costs to everyone. The issue is to have a time line set up in which to pay the amount owed. I keep preaching this like a broken record. However, your HOA should have a time line set up of which when to take action. It comes across as "Selective enforcement" when one randomly selects today is the day we decide to collect on you know who... We set up a policy of 6 months we liened, 1 year we DISCUSSED foreclosure. Having a defined time or consequence is something your HOA should look at to help resolve issues such as this. Plus need to make it at an amount where you would break even with the legal costs of filing a lien and money owed. The lien is to have your legal costs be part of the overall collection. However, it never makes sense to file a $400 lien on a $20 bill. In this situation, one check but keeping up with the payments, may be a wash. If it continues, then just add that amount owed onto the missed dues payments.

With all due respect, I disagree. A judgement from a lawsuit should hit the owner's credit report and it'll affect their ability to get new credit (and perhaps a littme more) if they don't settle up with the association. In some cases, you can even domesticate the lawsuit in another state if the homeowner moved there and then it'll show up if he or she tries to buy another house, rent an apartment, etc. thus having the same effect. In our state, we can use a judgement to then request garnishment of a person's paycheck or rental income or grab other assets that can be sold to pay the debt.

It is true that suing someone is easy, but the real challenga and expense may come with collecting on the judgement. That can take more time and money, which is why homeowner associations should consider ALL its options with their attorney before taking action. Sometimes a lien will work, sometimes a lawsuit is faster.

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

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Back to the OP. It seems you are getting no where with this issue. My HOA found that a letter from an attorney explaining the situation and action to be taken unless the situation was corrected often got better results then a similar letter from the HOA.

Sometimes people have to be hit up alongside the head to wake up.

I suggest you try this route.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It effects one credit if it is reported to the credit agencies. That is done through social security numbers. Which is never required nor would be required to give the HOA. The judgment would be in "name only". That may not enough to garnish wages or some other legal actions. The social security number is not part of the court filings either.

A lien is against the property one owns or owes the bank. A lien is reported to the bank and is on record. A lawsuit can be "ommited" on many forms as it is up to the disclosure to report it. A bad check or lack of reporting the lawsuit may never be found. It cost money for companies to do back ground checks and most of them based on social security number not name.

Lawsuits are a vicious expensive circle that is best avoided. There are better options if you know them. Knee jerk reactions are not how to run a HOA. Slow and steady wins the race.

Former HOA President

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By SheliaH on 09/21/2013 11:38 AM

Posted By MelissaP1 on 09/21/2013 4:53 AM
Don't bring them to court. If they owe the money, a lien is a much better option and less costs to everyone. The issue is to have a time line set up in which to pay the amount owed. I keep preaching this like a broken record. However, your HOA should have a time line set up of which when to take action. It comes across as "Selective enforcement" when one randomly selects today is the day we decide to collect on you know who... We set up a policy of 6 months we liened, 1 year we DISCUSSED foreclosure. Having a defined time or consequence is something your HOA should look at to help resolve issues such as this. Plus need to make it at an amount where you would break even with the legal costs of filing a lien and money owed. The lien is to have your legal costs be part of the overall collection. However, it never makes sense to file a $400 lien on a $20 bill. In this situation, one check but keeping up with the payments, may be a wash. If it continues, then just add that amount owed onto the missed dues payments.

With all due respect, I disagree. A judgement from a lawsuit should hit the owner's credit report and it'll affect their ability to get new credit (and perhaps a littme more) if they don't settle up with the association. In some cases, you can even domesticate the lawsuit in another state if the homeowner moved there and then it'll show up if he or she tries to buy another house, rent an apartment, etc. thus having the same effect. In our state, we can use a judgement to then request garnishment of a person's paycheck or rental income or grab other assets that can be sold to pay the debt.

It is true that suing someone is easy, but the real challenga and expense may come with collecting on the judgement. That can take more time and money, which is why homeowner associations should consider ALL its options with their attorney before taking action. Sometimes a lien will work, sometimes a lawsuit is faster.

Well said Shelia!

MatthewW4 (Arizona)
Posts: 500

Posted:

Quote:

Posted By MelissaP1 on 09/21/2013 5:31 AM
A lien has more teeth than a lawsuit. A lien is a court judgment except without the trial.

Another gem! We don't need no steenkin' trials!

A lien is just a recorded unilateral claim that one person owes another money. The lienee can challenge the claim and it is up to the lienor to prove his claim in court through a preponderance of the evidence.

MichaelM40 (California)
Posts: 5

Posted:

I think I will take a few of your opinions and see what the rest of the board thinks.... THANK YOU ALL ....

EllieD (Vermont)
Posts: 446

Posted:

MichaelM,

A bit way out – but is there any chance that “she” thinks that a bounced check is just re-deposited, and then clears? And/or does not understand that “she” needs to write a new check to replace the bounced check.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EllieD on 09/23/2013 12:07 PM
MichaelM,

A bit way out – but is there any chance that “she” thinks that a bounced check is just re-deposited, and then clears?

Actually, banks have been known to send a bounced check back through the system a second time. Sometimes it will clear on the second try sometimes not. If it doesn't, the bank will collect additional fees.

If the bank did send it through a second time and it did clear on that try, this may be the basis for the misunderstanding.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By TimB4 on 09/23/2013 12:34 PM

Posted By EllieD on 09/23/2013 12:07 PM
MichaelM,

A bit way out – but is there any chance that “she” thinks that a bounced check is just re-deposited, and then clears?

Actually, banks have been known to send a bounced check back through the system a second time. Sometimes it will clear on the second try sometimes not. If it doesn't, the bank will collect additional fees.

If the bank did send it through a second time and it did clear on that try, this may be the basis for the misunderstanding.

Who presently has physical possession of the check?

If the check clears, it is usually returned to the person who wrote the check (in this case, the unit owner).

If the check fails to clear, it is usually returned to the party that presented the check for payment (in this case, the HOA).

If the check is sent through the bank a second time and clears it will show up on the check-issuer's bank statement showing that the check was debited. This is why I posted earlier that if the unit owner believes the check was paid by the bank, that person should be able to produce a bank statement indicating that the amount of that particular check (by check number) was debited from the account. The check numbers of ALL checks are usually printed at the bottom of each check along with the routing number and account number. Only "starter" checks (those without printed numbers) don't appear with check numbers on bank statements.