I tried my best but now I'm suing

Yes, I filed a lawsuit against my HOA this morning. I bent over backwards to try to avoid it but alas they left me no choice.

I see a lot of posts about HOA's that exceed their authority or drag their feet and do nothing. Posts about egotistical board members and nightmare homeowners. Folks you can fight back! It cost me a mere $124.00 at the local Justice of the Peace court to file a small claims petition seeking a remedy for unlawful enforcement actions against me. I have been laying out my case to deaf ears for the past two months and enough is enough. My HOA can't even do me the courtesy of answering my complaint. Welp as of now they will be served within the next three weeks and then will have 14 days to send the court an answer otherwise I file a motion of a default judgement. You see I am FORCING them to answer me. Plus I'm asking for all court costs, period. In the end this endeavor will cost me nothing but time.

The point of this post is fairly simple: You can fight back. Always be polite, logical, reasonable etc. when dealing with bad people so that if and when the time comes to drop the hammer you are on the right side of the issue.

I haven't ever mentioned it.

I unknowingly didn't pay one of my HOA bills and was sent a letter stating I owed $25 for a collection fee plus $5.06 in interest. I immediately paid the bill but not the late fees and contacted the MC about a resolution. I never heard back and was assessed yet another $25 the next month bringing the total to $55.06. August passed with no answer from the MC and another $25 was assessed for a total due today of $80.06. They are charging me late fees for not paying late fees!

Anyway all that is pretty much moot because Texas Property Code 209.006(a) states:
Sec. 209.006. NOTICE REQUIRED BEFORE ENFORCEMENT ACTION. (a) Before a property owners' association may suspend an owner's right to use a common area, file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association's lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or bylaws or rules of the association, the association or its agent must give written notice to the owner by certified mail.

(b) The notice must:

(1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner;

(2) except as provided by Subsection (d), inform the owner that the owner:

(A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension if the violation is of a curable nature and does not pose a threat to public health or safety;
********************************************************************************************

This means that BEFORE they levy a fine for a violation they MUST give written notice via certified mail. That letter MUST allow me time to cure the violation to avoid the fine. They DID NOT send me a notice via certified AND I cured the violation immediately anyway. I laid all of this out very clearly and concisely to the MC but all I've heard are crickets yet they continue to assess me a monthly collection fee of $25!

Oh Hell No!

The other part of this is that the only late fees remedy authorized in our CC&R's is an interest charge of 10% per year.

The $25 fee is purely arbitrary too. Why not charge $50 or $100? AT the end of the day paying my bill late is a curable violation and my HOA is levying a fine without sending me notice via certified mail. Now if they had sent me a notice via certified mail AND I did not cure the violation by the date set forth in that notice this would be a completely different ball game and I wouldn't have a leg to stand on.

From Jared's post I would say he leans toward the anti-BOD side thus this suit is is more of a him going after them in general versus over the late fee issue.

He is on a vendetta to get them.

Will be interesting to see how it plays out.

I'm not anti HOA at all BTW. I was the president for 12 years and I totally get both sides of the equation. I want all people to play by the rules because HOA boards tend to attract people who want to make up their own. I want a level playing field for everyone.

That is totally fine and unlike many others here I am a FAN of this type of legal action. Going to the JP. It gets ridiculous that people on the BOD just do whatever they feel, and don't even bother to read the fricken by-laws. I am a FAN of MAKING THEM.

All I was saying about your sit. is that you have the wrong premise going in if you are going to cite the violation procedure because late fees are a different thing.

I don't want to see your case thrown out from arguing the wrong thing.

Jared, the HOA (in Texas)is required to offer you a payment plan for past due amounts. Were you offered one? We include the offer on the regular assessment invoice and in every letter we send regarding a past due account.

He's not behind. He doesn't need a payment plan. He paid one 'bill' late. I presume monthly dues. We don't get a 'bill'. We are expected to pay every month, technically due by the 1st, but there is a 10 day grace period. The coupon books from the MC say 15 days. The amount to pay if paid after the 15th is different from what the by-laws prescribe. So, I relate to that aspect of Jared's issue, but no other.

Were I to be late and the fee from the MC were higher than what is in the by-laws I would argue about that, but actually what the coupon books call for is LESS, so that is something the association can choose to fix or not, I don't care either way. I've pointed it out, that is all I can do.

BillH10, no I was never offered a payment plan. I cured my violation (did not pay monthly assessments plus utilities) immediately upon receipt of the letter (non-certified. Literally the only thing the HOA claims I owe are these collections fees and interest.

In all humility let's turn this into a legal discussion:
There are laws in TPC 204.010(10)(11)(12)(13) which state
(10) impose interest, late charges, and, if applicable, returned check charges for late payments of regular assessments or special assessments;

(11) if notice and an opportunity to be heard are given, collect reimbursement of actual attorney's fees and other reasonable costs incurred by the property owners' association relating to violations of the subdivision's restrictions or the property owners' association's bylaws and rules;

(12) charge costs to an owner's assessment account and collect the costs in any manner provided in the restrictions for the collection of assessments;

(13) adopt and amend rules regulating the collection of delinquent assessments and the application of payments;

I don't disagree with any of this and in fact our CC&R's also allow for reasonable collection costs including attorneys fees BUT a notice must be given according to 209.006 first. Not paying my bill is a violation of our CC&R's and 209.006 describes the manner in which such violations may be remedied. I am having a very difficult time understanding how this could be viewed any other way.

You need to forget the procedures for rule violations as they are totally separate from not paying dues/assessments on time. You did not 'cure' anything. That is not even an applicable term for this area. To cure, or remedy, a late payment, you'd have to go back in time and pay it on time. Lacking the ability to do that, the remedy or cure is to pay the late fee and interest.

Barbara is correct, Section 209.0063 specifies payments received shall be applied as follows:

Sec. 209.0063. PRIORITY OF PAYMENTS. (a) Except as provided by Subsection (b), a payment received by a property owners' association from the owner shall be applied to the owner's debt in the following order of priority:

(1) any delinquent assessment;

(2) any current assessment;

(3) any attorney's fees or third party collection costs incurred by the association associated solely with assessments or any other charge that could provide the basis for foreclosure;

(4) any attorney's fees incurred by the association that are not subject to Subdivision (3);

(5) any fines assessed by the association; and

(6) any other amount owed to the association.

Any funds submitted by Jared by definition must be applied in the order specified. If he was making regular assessment payments of the full amount due, there would be no continual posting of a late payment charge other than the first one.

Jennifer, I'm not seeing where we are in disagreement?

Perhaps she's saying I didn't list the other fees in the correct order. I wasn't trying to. I just meant payments go to the assessment first and anything else (collectively) after that.

The bottom line is that they shouldn't be charging late fees on late fees.

I see where you're going with that argument Jennifer. I'd still like to see that codified in law somewhere though. Regardless it's the most coherent counter-argument I've heard yet. I was planning on using a dual argument attack anyway if it came down to it and the other half would be to follow only the remedies allowed in our CC&R's which would be interest and total about $3.50.

Barbara and Bill are correct too about the application of payments. Furthermore I sent my first request for a resolution to the MC on July 11th and never heard from them. They allowed the problem to fester and get to the point where it is now. 20 days of no communication and yet another $25 charge. SMH. There are definitely some angles to argue here.

In the end I doubt this will ever go to court anyway but it will most definitely force an answer from an otherwise silent MC. It should not take this type of action to solve such a simple and otherwise benign problem.

Honestly, I would have tried a certified letter before a lawsuit, and maybe waited more than 20 days. But what's done is done. A lot of problems could be avoided if people just answered emails promptly.

Well at the point Barbara it's been almost 60 days. I've sent at least a dozen emails and the best response I have gotten back from them is "We don't have a response for you". Last week I asked the question "Is it the official position of the HOA that these amounts are valid and still outstanding" to which the response was "No"... again another non-response.

I have sent certified letters about other items with no reply. Specifically a request for a very limited amount of information. Anyway I chose to just sit on that and not pursue it. There is a disturbing lack of communication from our MC and, IMHO, that's not how business should be done. This particular issue of late fees is pretty minor in the grand scheme of things but if allowed to fester it turns into a ridiculous amount of emails, time, and money to resolve for no good reason.

Jared,

You sound pretty reasonable ...I suspect you will work it out prior to court.

I’m thinking if you do go to court, everyone is going to end up spending more money.

50/50

I've been searching. Check this out from Brazoslawyers.com:
Homeowner’s liability for collection fees

An HOA may not hold a property owner liable for fees of a collection agent it has hired unless it first provides written notice to the owner by certified mail, return receipt requested, that:

Specifies each delinquent amount and the total amount of the payment required to make the account current;
Describes the options the owner has to avoid having the account turned over to a collection agent, including the availability of a payment plan; and
Provides at least 30 days for the owner to cure the delinquency before further collection action is taken.

The owner is not liable for collection fees unless the agreement between the HOA and the collection agent requires the HOA to pay all of the agent’s fees. An owner is also not liable for a collection agent’s fees if the HOA pays the agent a contingent fee (a fee based on the amount collected).

Jared, what part of Texas are you in?

Not sure whats correct in Texas but here in FL we charge one late fee and t interest accumulates monthly not a monthly late fee
Also as board president i would ha s contacted once he emailed asking about it and I certainly wouod try to work it out with the owner regardless of who's right. Sometimes fixing the issue is more important than the Board proving they are right

Jared,

I'm not sure small claims court is the court you needed.
If it is, great.
If it isn't, don't be surprised if the case is transferred to the proper court.

Additionally, although it's small claims court, a corporation can usually still have their attorney handle the issue for them. Therefore, you may be arguing against someone who knows the system. If you haven't done so, you may want to consult an attorney for proper case law and what to argue.

I understand fighting on principal. Hopefully you didn't open a can of worms and the issue can easily be resolved.

Do you have proof you sent this request (certified mail, email with return receipt, etc.).

If not, the court might not accept the fact that you tried to resolve this.

I sent many emails to the MC plus board members. I did received responses to some of those emails however they were along the lines of "we'll get back to you", "we don't have an answer yet" In fact I received an unexpected email from the MC yesterday where the response is "Should the Association decide to adjust the fees I will relay the decision. At this point I will place your account on hold until a final decision is made.
Thank you for your patience with this matter." I'll remind everyone it's been two months since I've began trying to get the resolved.

Right now I'm suing for $80.06 plus court costs. In my previous experiences with JP court they have never granted court costs/attorney's fees to anyone. In fact one time, in front of this same judge, our HOA was sued by a tenant who didn't even have standing to bring a case and we were not awarded attorney's fees! I was president at the time and was in court and even testified in the case where this all played out. What a joke it was. So in the end my only real expectation is for the judge to order the removal of some or all of the late fees. Also remember I payed my delinquent assessments immediately and I am being charged late fees for not paying late fees rather than being assessed additional late fees for not having paid my delinquent balance in full. Furthermore our covenants only allow interest penalties in the amount of 10% per year on delinquent balances and nothing more. No $25 collection fees, nothing. And their calculation of interest was off by 25% even if the amount they charged was only $5.06.

So is JP court the right court? I'm only looking to have the fees removed not a judgement to change any collection policies changed. Yes, I have proof they have received my messages and that I have tried to resolve the issue outside of court. Lots of emails and a few responses none of which offered any sort of answer. This really didn't get out of hand until they started charging me late fees for not paying late fees after they didn't contact me for the three weeks prior to me asking for a resolution because, at the very least, the interest calculation was wrong. Their lack of communication forced the problem to become worse! Even after that first month I PLEADED with them for a resolution BEFORE the second billing cycle began (exact words) and more late fees were charged but still no conclusive response. At some point a person comes to the realization they are being jerked around.

Time is the biggest issue and the ongoing charges to my account were not going away. If they simply left the fees at the original amount of $30.06 and two months passed this issue never would have ballooned and I would have waited 2 months or 6 months. But that's not the case. If I was more patient and waited 6 months then my fees would be $150ish and people would say "Why didn't you deal with this problem sooner?". I can't win!

That said the MC came back yesterday telling me they would put my account on hold which seems to me they will no longer by trying to charge late fees for not paying late fees. That does somewhat change things since time has officially stopped. I have a very real option of dropping the lawsuit.

And let me say for the record two months is too much for such a small problem. C'mon. That's unreasonable. I wrote my first email and waited two weeks before writing another. That, on the other hand, is reasonable.