Which Address When Foreclosing?

In California, the Notice of Default and Notice of Sale is going certified mail to the addresses on file. As been discussed, California does allow for secondary addresses.

But, only a fool and his money would do this on their own. This should ONLY be done by someone that specializes in this field, otherwise, you are asking for trouble.

We've never done a foreclosure, but since it's a lawsuit, I'd think you would need to have the defendant personally served.

We have never done a foreclosure.

I agree with Richard's statement (quoted above). When foreclosing you have to dot the i's and cross the t's and check paperwork over and over again because any mistake can result in a lot of money spent with no result due to technicalities.

Thanks to everyone who responded.

I took this path because in the prior post, there were some who wanted to reach beyond the basic situation of mandatory notice of a meeting that I originally posed. They wanted to share experiences on liens and foreclosures instead. My response was that you have to get the basics down first.

So after we covered the basics, I created an example of a foreclosure. But unfortunately, few of you actually have direct experience working through the decisions that get made in a foreclosure. Rightly so, it gets turned over to the HOA lawyer.

But I'm still interested in your opinions about what constitutes LEGAL NOTICE.

So let's turn the hypothetical into just a lien and not something as involved as a foreclosure. And let's assume that personal service (physically handing someone the notice) is not required or not possible.

What would your answer to my question be under those circumstances?

Here's my revised question -

In your state, which of the following would be LEGAL NOTICE TO THE HOMEOWNER when putting a LIEN on his house:

1. Certified mail to Address A.
2. Certified mail to Address B.
3. Certified mail to Address C.
4. Publishing in the local newspaper.

Thanks.

Notice, from Law.com, specifies [in part] that notice is:

information, usually in writing in all legal proceedings, of all documents filed, decisions, requests, motions, petitions, and upcoming dates. Notice is a vital principle of fairness and due process in legal procedure and must be given to both parties, to all those affected by a lawsuit or legal proceeding, to the opposing attorney and to the court.

Written Notice, from USLegal, states [in part with emphasis added] the following:

Notices in a broad legal sense, are used to communicate rights and responsibilities to an interested party. There are different forms of legal notices. Notices in writing are called written notices. However the definition of the term written notice can vary from state to state and even within different areas of law within one state.

Based on the above emphasis, especially that the definition can vary within different areas of the law, wouldn't venture a guess or even quote a statute (as the definition may different in another statute).

I will repost what Richard stated earlier:

"This should ONLY be done by someone that specializes in this field, otherwise, you are asking for trouble. "

Hi Tim

The general definitions you provided say that it depends on the particulars and the state. I have provided particulars (notifying a homeowner about a LIEN) and asked people to discuss their opinion on how it works in their STATE. In my previous thread, the particulars were different (notifying a homeowner about a MEETING).

Not asking for anyone to take action - Just asking for opinions. I agree with Richard's comment in general.

Then again, opinions get thrown around here all the time - and they frequently involve perspectives on legal issues.

I handle the lien process for my client. It is a two step process.

A pre-lien letter is sent on the 46th day after the assessment was due. No Board action required. Certified Mail to the address on file with the association is required.

A lien is recorded on the 76th day after the assessment was due. A Board vote in Open Session MUST be recorded in the minutes. Certified Mail to the address on file with the association is required.

As a management company I have a duty to do everything in my power to help collect on a debt owed the associations I manage.

I am ashamed that some here take that responsibility so lightly. I know, you're just volunteers.

Who is taking anything lightly? The fact is EVERY Board member in a HOA is a VOLUNTEER. There is NOTHING "light" about tracking down an owner. Especially if your NOT getting paid and/or not your responsibility to do so. Effort is expected but not always applied by volunteers.

It was our Secretary's job to track down and record owner's addresses. The President is NOT to "Act as the Secretary". The accounting firm we used as the Treasurer did not have accurate information. It was the board's responsibility to decide to place a lien/foreclosure. We told the Treasurer to contact the lawyer to proceed. However, since we had lost most of our board members there was no Secretary. It then became my responsibility to track down owners. Which I did use the Tax assessor's office or went to the door of the home. If that did not work, then I did consult what the address was on the check they wrote last for that Lot#. Which did not mean it was the owner but maybe the seller/friend/family member.

In the end, none of this mattered. As long as public notice was given, it was ALL legal. You can't be responsible for member's actions or activity. You can only take action when in violation or owed money.

Arizona law (ARS 33-1807) provides that a lien for assessments is automatic and requires no further action, so for assessment liens the answer is none of the above. Notice of the lien is not required.

To create a lien for other matters, the association must file a lawsuit and obtain a judgment, which then becomes a lien against the property. To proceed with a lawsuit, the association would have to ensure that the owner is served in person with process (summons and complaint). While the rules of civil procedure lay out a number of alternative methods for service, such as publication in a newspaper, court decisions hold that none of those means are available when suing for money. So, once again, the answer to your question is none of the above; the process server must serve the papers to the person wherever he may be found.

BTW, several years ago we took quite a bath by hiring an attorney to file about 50 lawsuits to collect delinquent assessments. The attorney charged us an enormous amount of money to file each lawsuit and almost none of them were able to proceed because we could not locate the owners. (The properties involved were all unimproved ranch land purchased by out-of-state owners. None of the defendants lived on their property.)

BUT, is the lien enforceable if not recorded?

Here's what ARS 33-1807 says:

E. Recording of the declaration constitutes record notice and perfection of the lien for assessments, for charges for late payment of assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments. Further recordation of any claim of lien for assessments under this section is not required.

My State is much like Larry's
As long as declaration is filed, lien is automatic. No special notice is required.

But there is one twist.

If the homeowner requests an accounting of fees and expenses that make up the lien, the HOA must mail that information within 10 days.

So now we're back to my favorite question: Who gets to decide where the mailing goes? Does the delinquent homeowner have a claim against the HOA if they don't send the information to the address he requests?

Melissa

I got most of my post-high school education after I turned 50. I spent a lifetime winging it. I had common sense and that got me through. But there were many gaps in what I knew or I thought I knew. I listened to experts, and some of them seemed pretty dumb to me.

After I turned 50, I had the opportunity to gain a lot of classroom experience, some formal some informal, both as student and teacher, on a wide variety of topics. Having spent many years in the real world before I got my advanced classroom education, I think I had a special advantage because I could see things through a lens of prior observations. Today, I've accumulated a bunch of advanced degrees. I could string more than a dozen letters at the end of my name if I wanted to.

But I never forget the me who went through life trying to fill in the gaps without letting anyone know that I was winging it. And I've always been empathetic toward anyone who wanted to improve his knowledge and skills no matter where his starting point.

Some times there's value in sharing experiences. Sometimes there's value in remaining silent. I try to keep that in mind when I post here. There are many times when I hold my tongue.

I don't think I've ever disrespected you. I've never gone after you personally. I think that many of your viewpoints are misinformed. I've come to learn that you're not interested in gaining insight into the weaknesses of your arguments even though others might be.

In these last few threads, you've told us that you don't give a crap about state laws, you called me a "statist" which I guess is some kind of derogatory term, you've accused me of violating the positive spirit of this forum, and you've defended your unwillingness to explore by saying that the advice is free.

I wish that I could get this message across. I do value some of your contributions. You are not your ideas. I will praise your ideas when I think they're great. I will attack your ideas when the topic is important to me and I think you are providing misinformation. If I attack your ideas because I think they misinform, I am not attacking you.

I welcome the debate. I think that these conversations are a great way for all of us to learn from each other. I do think that's what keeps the spirit of this forum positive.

I do not welcome the personal attacks against me and I do not think I am making personal attacks against you or anyone else. If you want to start a thread on respect for others, I'd be glad to share my thoughts with you.

Usually a statutory requirement for HOA to provide specific data re HOA finances (including amounts owed by seller) within X days of request. In PA, it's called a 5407 (HOAs) or 3407 (Condos).

In PA, the recording of the CC&Rs is sufficient to notify anyone that the HOA might have a lien on the property.


Someone who does work on your house has XXXX months after completion to file a mechanic's lien. If he doesn't file in time, he loses any claim against the house.


There's a case in PA where the HOA filed a lien against the property. A judge removed that lien because it served no purpose. The filing of the CC&Rs and the non-payment already established the lien.

Agree completely that the address provided by the homeowner is the record address that HOA must use.

NPS said:

There's a case in PA where the HOA filed a lien against the property. A judge removed that lien because it served no purpose. The filing of the CC&Rs and the non-payment already established the lien.

Our Covenants establish that the HOA has a lien on your home from the get go but we still file liens when past dues get 6 months late.

Yes, you are correct.

A lien may exist whether recorded or not.

In the case of CCRs, which themselves are recorded, the lien for assessments is usually covered.

eg.

Every time you bring your automobile in for service a lien is created against the vehicle for the cost of service. Should you remove the vehicle before payment the 'shop' will then 'record' the lien against your title.

oversimplified, of course



ps. words have meanings, different words - different meanings

In reading it, the appellate court didn't say it was invalid.
It said that a second lien (for non-payment of assessments) was not authorized by the HOA statute hence, the lien should be stricken.

As you previously pointed out, and the court stated (in the link you provided) a lien already exists (by the simple recording of the CC&Rs). The court also pointed out the the next step for the Association was to file a complaint of foreclosure or (although not mentioned in the opinion) to take the issue to court or simply wait until the home is sold and the mortgage company asks for an accounting of what is owed.

It certainly is an interesting case.

I also interpret that opinion to specify that the Association erred when it found the member in violation as (I suspect) the minutes showed that no evidence was presented (photos, testimony, etc.). The Association failed to hold a hearing, they simply ruled it as uncontested and moved on with business. I wonder if this interpretation had any implication in the outcome (which we don't know) of the other case.

That was a question left for the lower court to decide.
If the parties entered into an agreement, vs completing the case, then the question was never ruled upon.

It's a shame that the lower court opinions aren't published to where they are easily located.

Additionally (or should I say inter alia), the opinion provided also didn't give a basis as to why the lien should have been extinguished if not collected within 3 years. It would be interesting to read the actual statute or rule of law that they are basing that claim on.

IMO: I would use whatever address / notifications / system the County Assessor uses for a property tax foreclosure.

let the blah blah blah continue

nope

nothing new

one should adhere to and follow one's Covenants

and

if incorporated

one's bylaws and state corporate law

for legal issues, one should engage an actual attorney