HOA forcloseing for assesments that WERE paid

I need advice and fast. We received a letter from the HOA's law firm informing us that a lien had been placed on our home and that in 45 days foreclosure proceedings would take place if we did not pay all of the missed assessment payments from the last five years and administrative fees and legal fess associated with those missed payments.

I immediately called my HOA management company and informed them that we have never missed a payment and could prove it with bank statements. They refused to meet with us and said we had to discuss the issue with the law firm. I called the law firm and told them the same thing to which they replied "would you like to pay in full or set up a payment plan?" I told them I wasn't going pay them at all because I had proof that we were never behind on payments. They asked me to send them the "proof" of payment and they would contact me after viewing it. I sent them (through certified mail)a full copy of all our banking statements for the past five years with HOA payments highlighted. A few days after receiving a receipt that they had claimed the documents and not hearing from them I called again and asked for an update on the situation. They claimed they did not receive the documents to which I replied that I had the US mail certified receipt. Only then did they admit that they did have the bank statements but had not entered the info into the computer yet and that they would contact us after reviewing the documents. They then asked me again if I wanted to pay in full or set up a payment plan!!!
Today we received another letter asking for copies of the canceled checks for two payments in 2010 which we can't produce after all these years but those payments were shown on the bank statements we sent them that they even pointed out by check number and date in the letter. They still insist on payment of the full amount including all the payments shown in the bank statements with their bank account number shown as received on time.

The payments were always sent by automatic bill pay and were never late during the last five years yet even with proof sitting right in front of them, they want payment for every assessment for the last five years. Only two payments in 2010 were made by check because the HOA didn't have an electronic payment option set up at that time.

I feel it is worth noting that in the first letter they claimed that they had been sending us letters bi- annually for five years indicating that we had not made the payments and we were at fault for ignoring the notices and that these proceeding were the final attempt to collect this debt before filing for foreclosure. That is completely false!

I feel it's also worth noting that we just completed an $80,000 renovation on the entire house making it now the most valuable home in the subdivision. This includes new roof, new stucco, new paint inside and out, new screen room around the pool and a new pool deck, new stainless steel appliances, new floors throughout the house, new A/C and new air handler. Funny how the BOD never acknowledged us when the house was a little outdated and average looking other than hitting us with a $900 fine for a patch of brown grass the size of a basketball or threats of fines if we didn't powerwash the driveway every few months but after the renovation every one of them came by to compliment us on it and ask for a tour and the list of our contractors so they could get similar work done

I'm at my wits end and don't know what to do from here. The management company won't meet with us and the law firm won't meet with us or acknowledge our payment records. BTW the law firm Becker and Poliakoff is huge and has a terrible record of malpractice in these situations although HOA boards all over the country love these CAI bottom feeding litagators because they are very successful at screwing homeowners in favor of the BODs of the HOAs.

I'll burn this house down and leave them the smoldering lot before I let them take my home for 1% of it's value and sell it for profit.

If anyone here can advise me on how to keep these jackals from stealing our home I would be very thankful.

Call a lawyer ASAP. Someone is lying and they clearly think it's you in the face of evidence to the contrary. Are you sure these communications are really coming from the HOA's attorneys? Sounds like a typical Florida scam to me. If you just spent $80,000 on your home you should not even blink at hiring an attorney for this.

Write a letter to your board and send it certified mail demanding to see the monthly financial reports for the last 5 years. You are entitled to this information in Florida, so don't ask for it. Demand it.

Check to see if they've been recording your account as delinquent each and every month.

Something's rotten in Denmark here.

On a slightly parenthetical note, Richard is right.

On another note, automatic bill pay scares me, and I hope they're not the ones who screwed you.

Followup... most banks keep check images for 5 years, I know mine does; I can go online and look up cancelled check images for the last 60 statements. Your bank should be able to get them for you if you can't access them online. If those checks would have appeared in any of your last 60 statements, get them from the bank and don't waste any time.

If you were a family member I would drive to your house tomorrow and make sure you did all 3 of those things: call a lawyer, get copies of those checks, and send a written request for your HOA's financial records. FS 720.303(5) says the HOA has 10 business days to make them available to you.

Do these things tomorrow, Tuesday. Not Friday after you've had a chance to talk to an attorney. Not next week. Not even Wednesday. Tomorrow (today, technically).

Absolutely do this. You are dealing with the worst of the worst law firms in the Florida HOA world. Since the HOA turned this over to their attorneys you must communicate with the HOA and management company only through their attorneys.



See the above about communicating only with the HOA's attorney. Your lawyer will do this for you; it is his job.

BTW, one problem I have encountered with BillPay is that our names were not automatically listed on the checks as being the payers. You will never know this unless you have had a check returned to you for some reason. We had one sent back to us and the payer's name was "No Name." Without the payer's name, the party receiving payment may have a difficult time posting your payment to the correct account. In your case, it may be that your records show payment to the association but their records will show the payment was posted to someone else's account.

I am curious, though, why they are just now acting on something they claim goes back five years. Do they send monthly or annual statements showing any past due amounts?

Most important is that you have to file an answer in the court case where they are suing you for foreclosure. You can talk to the attorneys until you are blue in the face but the court case will show that you have done nothing. File a letter in the court file saying you did not get any letters (they usually send them by certified mail so check with family members to make sure no one signed for these letters) and file copies of all your checks and statements (cross out the account #) and ask for a hearing as soon as possible. You must stop this case from moving forward so you can be heard by the judge. Then, get an attorney and do the other things everyone is telling you to do.

Whatever the facts may actually be here, smart lawfirms/ collection agencies demand some degree of proven accountability from clients for whom they act to collect. Mistakes can happen but also scams & deception.

Beyond what is provided by Crystal B(Maine) above - Florida's Florida Consumer Collection Practices Act (CCPA ) the OP may want to take a deep breath and also at some of these no doubt raised at this site in past topics :

(Federal)Fair Debt Collection Practices Act : Ҥ 801. Short Title [15 USC 1601 note] This title may be cited as the "Fair Debt Collection Practices Act."
https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text

Florida ch 559 ( “REGULATION OF TRADE, COMMERCE, AND INVESTMENTS, GENERALLY”) has a Part 6 Consumer Collection Practices ss 559.55 – 559.785
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0559/0559.html

Florida Debtors' Rights – Findlaw article
http://statelaws.findlaw.com/florida-law/florida-debtors-rights.html
“Can the Court or a Creditor Take My Home ?" includes state "homestead protection laws"

I have done a foreclosure before. My best advice in fighting one is to pay what they say you owe to stop the process. Foreclosures stop as soon as the debt owed is paid. In your case, it's still just a lien. Now I know you do not owe anything and can prove. That is when you sue the HOA for your damages. Which is your legal costs and amount you paid they claim you owed.

I am sure they aren't going to like it when you let them know you will suing them for this. They will have to provide their own proof that you owed. Put the shoe on their foot...

Yes, I know my advice "Suing your HOA is suing yourself and your neighbors"... I also say that there are certain conditions where this is acceptable. Fighting an unfair foreclosure is one of those. This case the HOA is doing their job by collecting what they perceive is money owed. The owner is doing their due diligence proving the HOA is wrong in pursuing. If the HOA doesn't pay attention to the fight, I say the owner should knock them out...

You don't know that value was not added to someone else's home. The purchase price is based on comparable prices in the neighborhood. The person renovating their home could artificially inflate the price of their home and others.

On the other hand, the equalizer is the appraised value. Once a price has been settled upon, an "independent" party will appraise the home, taking into consideration the upgrades and renovations done. The mortgage's loan to value will be based on either the purchase price or the appraised price, whichever is LOWER.

JayI (Florida) :

1 - Whatever the actual facts are here, you may be well served to get a lawyer to use some of the remedies including Florida HOA law ss 720.3085 (1) ... (b) NOTICE OF CONTEST OF LIEN

This appears to force a HOA claim to die or be be brought forward for legal challenge rather than merely dangled over your head / used to threaten future sales.

2 - Had there been a change of PMC / something to disrupt the integrity of records or expose to fraud ?

3 - You cited a past $900 fine interaction ( ". . . hitting us with a $900 fine for a patch of brown grass the size of a basketball or threats of fines if we didn't powerwash the driveway every few months . . .").

You deny being previously notified over the latest. But if - rather than applied to your periodic HOA fees as coming due regularly - the HOA has been with or without notice applying your fees retroactively against what it claims as an unpaid fine or interest, such accounting may produce a confusing paper trail - or worse - to keep the HOA claim timely and accumulate interest.

Think back to that fine & what may have been threatened to you by the HOA. Good luck

Thank you for that input, that is precisely what we intend to do now. I will send the check by certified mail and write on the check "under protest".

Over half the amount is legal fees. I read somewhere on the net last night that they can't legally charge more than 15% of the debt. I'm going to sue the law firm for emotional distress and any other damages my lawyer can come up with. This particular firm was already sued for this before and the plaintiffs were awarded $10 million, you would think they would have learned their lesson...

There was a change of PMC in 2013. I'm sure it factors into this in some way. I will have my lawyer look into that when we file suit.

The change in PMC was done by the board without a vote by homeowners or a bidding process. My next door neighbor who was the president at the time awarded the contract to a company he works with. He works with developers as a landscape consultant.

The grass fine was just six months ago after I put up a new mailbox and the dirt from the hole killed a small section of grass. It grew back in a few months and my neighbor who is on the board dismissed the fine. Even if she didn't get the fine forgiven properly and they applied our dues to the fine it wouldn't be affecting payments going back five years.

I think the reason we were notified about the fine but not the assessment issue is because the fine notification came from the board. The assessments are collected by the PMC who are apparently inept or criminals.

It blows my mind that the PMC won't even meet with us so can present proof of payment. This could all go away by simply looking at our bank statements and calling off the dogs. It's my suspicion that they don't want to admit their mistake and be on the hook for the legal fees that resulted from their mistake.

We pay about $200 bi-annually. It goes up each year of course which is why I said "about". This is also evident in our bank statement because the amount charged goes up with each raise in the assessments. My wife also recalls getting e-mail notifications from the bank each time because we have it set up so that we are notified any time a charge is made without a signature or pen number. I get two every month for instance from Net-Flix and our car insurance payments.

The last letter we got showed they have received payments sporadically over the last five years but our bank statement shows on time payments every 6 months. It's as if they just picked and choose. It really makes no sense. Why do they acknowledge some of the electronic payments and not others?

They claim to have received $900 leaving a balance of $1910, $1200 of which are legal fees. I can tell you this much for sure, no matter how this pans out, I'm not paying those legal fees unless a judge orders me to.

Actually it is a serious answer, and one which removes the HOA attorney from the equation and puts the onus of proof onto the HOA. It takes enough money to afford it, but you totally out-flank the HOA.

You obviously didn't read all the posts in this thread. That's OK though, I realize it's a pretty lengthy read.

Good deal, JayI. I had the sense from your first post that there was a good chance you could (if everything breaks right) end up collecting from one or more of the parties involved. Going to court is never fun but I think it's much less traumatic without the added emotions of having children involved (as you said earlier). I hope it goes well for you and you prevail.

I have never seen this filed.

FYI you do not need a Real Estate lawyer in a HOA matter. If they will work for you great. However, a HOA is not dealing with real estate. They deal with contractual or corporate laws. Better to go with a lawyer familiar with that area of the law.

Richard,

We had an individual on this site just last week who said that they were an attorney and did not understand Associations (which is based in contract law).

Therefore, although every attorney had training in contract law, if they chose to practice within a different specialty of law, then it's highly possible that they would not be the best individuals to utilize for a contract dispute.

My understanding is that the Fair Debt Collection Practices Act only applies to agents hired by the debtor to collect (i.e. the law firm). It does not apply to the original debtor (the HOA).

Regardless of any issue one brings to an attorney, I believe it is prudent for that individual to also read up on the applicable statutes (rather then simply relying on the attorney's interpretation). At the very least, it will minimize the time spent with the attorney (which can lower the cost of hiring the attorney) and allow the individual to ask more informed questions about the issue.

I am suspicious of this lawyer. He did what Real Estate Attorney does. Looks up for filed liens and verify no foreclosure. Which we knew in the first place. Plus this is PUBLIC information and put into the newspaper when either is filed. It is part of the notification process. So paid a Real Estate attorney to do the only job they do normally and it is public info? My bet is the lawyer drops him after this for another attorney friend he knows.... I see a bunch of fluff and stuff here.

The issue still remains needs to pay the lien then sue for those damages. Otherwise this can slide into foreclosure quickly. That means more money spent and the house could go...

Keep one thing in mind when talking about lawyers. Quite often there are two involved in the same issue. One saying yes and one saying no. Both achieving their personal objective of billable hours.

Rather than quote each person and rack up a lot more consecutive posts I'm simply going to address all the posts since my last all at once. Or try anyway.

The lawyer we went with is not just an individual it's a large firm that specializes in real estate law and they do HOA cases often. As I said in my last post, the particular lawyer we spoke with said he had dealt with the firm that filed a lien against our home on many occasions. He's very familiar with how they operate when a home owner hires a lawyer to dispute a debt. I won't repeat what I was told because as I said earlier I don't think it's wise to trash talk a law firm on the internet. Lawyers know how to use a search engine just as well as I do and I found this site that way. Saying anything more than that at this point would be like sending the Georgia Bulldogs my beloved Florida Gators playbook before the start of the season.

As to the possibility of our lawyer dragging this out to rack up more fees... Our firm charges a flat fee in these cases. We have already paid in full $950. If the judge rules in our favor he will most likely order those fees be paid back to us by the HOA attorney. That is typical in all forms of litigation and shouldn't come as any surprise. There is also a flat fee of $1,100 if we decide to sue for punitive damages later. I'm not interested in pursuing that at this point in time. Right now we are just focused on having our evidence acknowledged by the HOA and having the lien lifted. As to the possibility of the lawyers working a back deal and screwing us over... Anything is possible but I highly doubt it. Our firm advertizes itself as homeowners advocates.

As to paying the HOA now to stop action and sueing later for reimbursement... We were told that is not necessary. At this point it's only a lien, not foreclosure. By hiring a lawyer and disputing the debt they can't file foreclosure until the lien is deemed just and valid.

Anyone that is of the opinion that I should pay the HOA rather than pay half that much to a lawyer and fight it I say this. To hell with the HOA and it's management company. I would rather pay twice as much as the disputed debt than pay these jackals. We paid our assessments ON TIME during the entire period they claim we didn't and they came back to the trough for more and went about it in a dirty and illegal manner. If we rolled over now who's to say this won't happen again 5 years from now?

Jay I wish you luck if the details you have offered are complete.

I have to say the prices you have quoted seem quite low.

"As to the possibility of our lawyer dragging this out to rack up more fees... Our firm charges a flat fee in these cases. We have already paid in full $950. If the judge rules in our favor he will most likely order those fees be paid back to us by the HOA attorney. That is typical in all forms of litigation and shouldn't come as any surprise. There is also a flat fee of $1,100 if we decide to sue for punitive damages later. I'm not interested in pursuing that at this point in time. Right now we are just focused on having our evidence acknowledged by the HOA and having the lien lifted. As to the possibility of the lawyers working a back deal and screwing us over... Anything is possible but I highly doubt it. Our firm advertizes itself as homeowners advocates. "

$950 would get you just over 3 hours with our attorney.

To file a complaint at $1,100 in my experience cut rate pricing.

Maybe someone from Florida can comment on average legal costs.

I am not sure using the law firm you posted about as they are in the very heart of Jay's mess. I also know the author having met her at a seminar.

I see this going ugly fast. I don't see why one does not pay the lien to PREVENT foreclosure action FIRST and FOREMOST THEN sue the HOA for those damages? Seems to be a money saver to me and a stronger case. Otherwise, the HOA could slip the foreclosure by while trying to fight the issue. Then that will make matters much worse because the right of redemption issues come in. Which then tacks on other expenses to get the house back. If right of redemption exists in your state.

The court can ONLY make one WHOLE. It doesn't make you rich. Plus if you go beyond just this lien/foreclosure issue, your stepping over that line of suing yourself and your neighbors. Fighting an unfair lien or foreclosure avoids that line as the HOA is trying to fill a hole by lien/foreclosure as it's their damages. Paying the lien to avoid foreclosure fills that hole. Then suing if there was never a real "hole" in the first place proves your damages. Thus making you whole again and the HOA in the position of re-evaluating their collections policies.

A lawyer not giving you this option or informing you of this option, leaves me to believe you have no real lawyer working for you. You have one that will "do whatever you tell me to do". That is one less lawyer that will get my money...