MOTION FOR A JUDICIAL REVIEW OF DOCUMENTATION OR INSTRUMENT PURPORTING TO CREATE A LIEN OR CLAIM

This just keeps getting better With only 5 days until mediation with one of our home owners, their attorney filed this motion 9 days ago, though our own attorney was unaware of it as of 2 days ago when I met with him. I assume they are claiming that their lien filed against their property was illegally done. I have to assume we have full protection because it was our attorney who told us to file the lien. The lien was for partially accrued legal expenses, which our governing documents say are charged to the home owner involved in the litigation. Since the home owners stated they intend to move out of the neighborhood, we had concerns that they would move and would we not recoup the legal fees. At the advice of our attorney, and after he reviewed the lien, we filed it.

That is exactly how our documents are worded. I am sure this is just a procedural filing that they Googled to get their lien released but I am confident we did nothing wrong. Our attorney told us to file the lien and he reviewed it before it was filed.

Gregg,

Since I know nothing of Kansas law I can speak only from a perspective of Arizona law, which may or may not be similar.

Many contracts allow a party to collect "reasonable attorney fees." My reading of AZ law is that only a court can determine what is a reasonable fee and even that is limited to direct expenses of litigation. If you paid an attorney to prepare a lien, his fee for doing so would not be recoverable (state law does not require a lawyer to prepare a lien). If you paid him to represent you in court, his fee may be recoverable but even that is up to the discretion of the judge. Depending on how the judge finds on about nine factors, the court could award an amount that is anywhere from 100% of what you paid down to 0%. And no matter what, you can never recover more than you actually paid.

Please keep in mind that this is entirely my own interpretation of the statutes; I see parties, including HOA's, try to collect non-litigation legal fees all the time.

From your description of the defendants' Motion it is not clear whether your association recorded a lien prior to litigation that included your attorney fees or whether your association recorded a new lien after commencing litigation to include your legal fees. My opinion would be that if the lien was - in part - for legal fees incurred prior to litigation that the lien is on shaky ground; if the lien was recorded after litigation began you are on legal quicksand as the court determines what fees are reasonable.