Need help filing liens

Started by KellieS3 • 10 replies • 1894 views

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KellieS3 (New Jersey)
Posts: 1

Posted:

Hello -
Hoping to get some direction here about filing liens on delinquent homes in association. We have all single family dwellings (75 total) and 6 outstanding homes to date. We charge only 150.00 per year. Looking forward to getting help an answers. Our lawyer is way too expensive.
Thanks,
Kellie

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kelli

How to file liens can vary from state to state. In many cases an attorney is not needed thus an Officer of the BOD can file it. In some states it begins in Small Claims Court with the HOA suing for the owed money.

Hopefully someone from NJ can clarify how to do such in NJ.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Contact your local court house, typically a visit in person rather than over the phone is best, and see what assistance they can provide.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By KellieS3 on 05/13/2015 6:09 AM
Hello -
Hoping to get some direction here about filing liens on delinquent homes in association. We have all single family dwellings (75 total) and 6 outstanding homes to date. We charge only 150.00 per year. Looking forward to getting help an answers. Our lawyer is way too expensive. Thanks, Kellie

Lawyers retrospectively weren't "way too expensive" if you get caught slandering someone's title or oppressively fouling up the sale of some owner's largest single asset.

Lawyers & registered paralegals get this wrong from time to time, but have E&O insurance. What do you folks have ?

To be fair maybe enough of the would be lien-filers have enough skillsets to know - just for starters - accurately that their group actually has the full legal vires to file such claims.

Incidentally is it do it also D.I.Y. record-keeping to establish actual arrears ? Are some of the claims merely "constructive" - derived from claimed but possibly bogus liening powers ?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By TimB4 on 05/13/2015 12:47 PM
Contact your local court house, typically a visit in person rather than over the phone is best, and see what assistance they can provide.

I've not been through this myself, but while I was perusing old records after I became treasurer, I found correspondence similar to this.

A prior board member wrote the Clerk of the Courts office asking how to record a lien. The answer back was that they could not provide "legal advice" and to seek competent legal assistance.

Escaped former treasurer and director of a self managed association.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Doug,

That is why I said visit the clerk. They can't and won't give legal advice. However, they will provide you with the proper form and, perhaps, an instruction sheet.

TimB4 (Tennessee)
Posts: 21,059

Posted:

The reason why I say this is my experience with my mothers estate. I went to the clerk to ask about filing probate. They said that I could not do that on my own. I then asked for a referral and explained I had already talked to a few local attorneys who wouldn't take the case as the estate was so small. They informed me that a certified document preparer (paralegal) could do this for us. I asked for recommendations. They said that they were not allowed to do that but had a list of certified preparers. The clerk then handed me the list while tapping a finger on one specific name.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By DouglasK1 on 05/13/2015 2:22 PM

Posted By TimB4 on 05/13/2015 12:47 PM
Contact your local court house, typically a visit in person rather than over the phone is best, and see what assistance they can provide.

A prior board member wrote the Clerk of the Courts office asking how to record a lien. The answer back was that they could not provide "legal advice" and to seek competent legal assistance.

What was the former board member thinking? The Clerk of Courts is not going to give legal advice, especially in writing.

The reason for going to the courthouse is to look at and copy the format and information that other HOA's have used to record liens. There is seldom an official form to use although your state statutes may dictate the minimum information that must be recorded.

You should also be able to purchase a copy of other liens at a nominal price. They may offer you a certified copy but that is not necessary for this purpose. (A certified copy is normally presented to a court to prove that it is an official copy of a recorded document. A non-certified copy may cost you something like a dollar per page while a certified copy will add about twenty dollars to that cost.)

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You may be able to use a legal service to file instead of using a lawyer to save costs. They charge a fixed fee.

The court clerk's office typically do not respond to non-lawyers on issues that require a lawyer. It does vary from each state the lien process. If you get rejected for not being a lawyer, then you know you need a lawyer to file. Some states there is an "automatic" lien process that happens when behind in dues. My suggestion is to hire a lawyer the first time to educate yourselves on the process.

Please note: You should have a lien policy in place and NOT willy nilly when you decide to lien. Your HOA should note in it's meeting notes and announce to the membership the lien policy. We have a 6 months we lien policy. That's our break even point due to legal costs of filing and the amount of dues behind. We DISCUSS foreclosure after a year of non-payment.

So I would make sure your HOA has a strict rule in place before filing a lien or people will scream "Selective enforcement". Plus remember part of the lien is to recover your legal costs for filing the lien. So if it cost $400 to file, that $400 is added to that lien.

Former HOA President

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By BobD4 on 05/13/2015 1:24 PM

Posted By KellieS3 on 05/13/2015 6:09 AM

Lawyers retrospectively weren't "way too expensive" if you get caught slandering someone's title or oppressively fouling up the sale of some owner's largest single asset.

Lawyers & registered paralegals get this wrong from time to time, but have E&O insurance. What do you folks have ?

To be fair maybe enough of the would be lien-filers have enough skillsets to know - just for starters - accurately that their group actually has the full legal vires to file such claims.

Incidentally is it also D.I.Y. record-keeping to establish actual arrears ? Are some of the claims merely "constructive" - derived from claimed but possibly bogus liening powers ?

This offers several indications why DIYers are best served to hire competent professionals whose 'liening' activity at least is addressed by their E&O and (state)professional insurance.

Think your community's insurance backstops straying from conventional governance into professional engineering etc ?

Consumer protection & property rights
Some jurisdictions have found so much LIEN CHAOS caused - even by incompetent or 'hardball', credit-damaging genuine professionals - that those jurisdictions may even expressly prescribe the WORDING of liens, particularly where the realty model is a legislated condo format. That format may be online at some states' judicial sites/ state A-G sites.

Huge and potentially expensive damage can be done where liens are filed under voodoo claims / voodoo penalty charges without clear legislative underpinning for such weapon being used beyond lawful but unpaid common expenses.

Conversely, valid claims - including fullest lawful interest and as full as possible of the liening & unliening costs, may be jeopardized by challenges. They may be invalidated by untimely filing or delays eg where the jurisdiction happens to erect limitations act deadlines to further action the lien.

Saving bucks by DIY may come back to cost bigtime if an original lien or disputed lien removal is a factor in killing a property sale. Hope this is part of your thinking.

PitA
Posts: 311

Posted:

to be precise:

As per common 'governing documents' a lien is automatically created by virtue of failure to pay assessment(s).

Said lien may be publicly RECORDED with the Register of Deeds at the county seat.

The Register is the one who may actually file said lien.

The process for a corporation to record a lien would be a state property law issue.

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