BOD member is also HOA Attorney+ more

I have lived in my house for 4 years and paid my dues every year. First two years, HOA was in control of the developer. After living in house for the first year, I had to search out how much my dues were and where to pay. At end of year one I then paid dues for year one. I have paid each years dues at the end of the same year. I now realize that I was supposed to pay them quarterly in advance. I found this out because my HOA sued me In december. I promptly paid the dues the next day. Had my HOA simply asked me about it, I would have corrected my payment method and payment time. The HOA indicates that they sent me letters telling me I was overdue. I have not seen these letters. None were sent certified. The HOA attorney is also a BOD member for the HOA. After recieving my dues, I was sent a letter demanding I pay the attorney fee and court filing fee in order for them to drop the lawsuit.

Is this legit?

Just my take!! If the HOA Attorney is also a BOD member, most States
would see this as a conflict of interest.
When you purchased your property the CCR's should state the time frame
for collecting dues, ie. monthly or yearly or anything in between and if
not paid how the HOA should proceed for notification to the owner and if
notification is ignored the legal action the HOA can take.
Edie

In reply to the comments.

The Bylaws clearly state that dues are to be paid quarterly. I now know that I was not paying them in a timely fasion. (although I was paying them the same way I had since my house was built and I moved in).

The demand to pay the years dues came by the county sherrif leaving a summons on my doorstep. The summons requires that I provide a written response to the claims of the HOA by a certain date later this month. When I recieved this, I promptly paid the dues. I then received a letter listing the court costs and legal fees. It demanded payment for them before the reply deadline in order for them to drop suit against me.

How much money are we talking about?

Their mistake was not sending Certified Letters for such an important issue.

Ignorance of the law is no excuse. If you go to court, you will have to prove you did not know that it had come to this point (legal fees, etc.) but, then again, you knew you were not in compliance with the payment schedule all along.

It will cost you more than $350 to defend yourself on this one, for sure.

Most states hold attorneys to a higher ethical standard than the general public, (don't laugh now). Get on line and read their ethics code! Although, the attorney may have failed to avoid an apparent conflict of interest, may not have broken any laws technically, and may have failed to at least disclose the relationship, I would get right out your state's website, then look for information on the State Bar and send them a complaint. Based on the informaton presented, this just doesn't smell right.

The sheriff is acting as the process server. The lawsuit was left at my door by the sheriff. The sheriff Dept. sent me a post card in the mail indicating I had been served on the date the documents were left at my doorstep.

The paper work indicated that I neede to reply to the county court and send a copy of my reply to the HOA attorney. That date has not come up yet.

KF: I personally would do everything in my power to make this problem with the county sheriff right! If they want you to send a reply to county court, I would send it ASAP (why wait until the appointed court date???), state your position and apologize for not paying on time and in quarterly payments as your official docs dictate you must do, and send copy of your current paid dues.

The issue with the attorney on the Board is a kettle of another fish...and IMO you do not need to be involved with that at this time. You were wrong in your payment process, and now you need to own up to that. Try to smooth things out with your apology and serious intent to follow the payment process in the future.

KF:

I think Kansas is about as far behind HOA oversight as any state in the nation. Having lived here I have found very little useful information about HOA's.

A couple of things strike me on this...one you bought the house and should have read the documents so only you are to blame for not paying. Now to the argument of whether they notified you or not...you can contest it and ask for proof that they contacted you. However, I am not sure that they need to tell you they are going to sue you, especially since your documents tell you when to pay. On the other hand, they have accepted your payment at the end of the previous three years without penalty so in effect they are okaying the behavior.

If you are still reading this the question is whether it is worth it over $350. I am not so sure, I guess if I were in your position I would ask for a free consult with an attorney to get an opinion and go from there.

As for the BOD member who is serving as the HOA attorney...to me it is a conflict of interest. If you also feel that way and think there is misconduct you can contact the Kansas Bar Association and ask what to do. I would ask this question in my consult with an attorney if they felt this way also.

I certainly think the lawyer that acts a the association attorney and serves on the Board is a Conflict of interest and You have to question his motivation for putting himself in this position. But that is a different story.

I appears to me our poster has got his foot caught in the trap he himself set. It seems obvious he knew what he was supposed to do, he should have just went along with what he knew and paid the bill. I think he will just get in deeper (cost more) to go to court and rely on the fact he didn't receive some notice, therefore. he don't have to pay. Just as the Poster, and others, question the fact the lawyer is on the board, I question the Posters motivation. All this energy he is expending to resolve something that didn't have happen would be better spent doing something for the association. IMHO

Donna:

I don't think there is anythng wrong with an attorney being on the board. I do think it gets into a gray area when he/she is the associations attorney and is on the board.

Dear friend Donna,
I must not have explained myself very well. I welcome lawyers in our Regime, the more, the better. But I do not expect them to offer any legal advice, that is purely up to them. My problem is having one on the Board and retain him as the assosication Lawyer, paying him a retainer or any other kind of bill. I really don't think a lawyer being on the board insures all your legal problems will go away any more than having an electricn on the Board insures you are not going to have electrical problems. On this site I think I have heard about Judges being on Boards more than Lawyers. What would really be nice, if possible, would be to have a legal advisory board made of of all or some legal type homeowners.
They could make recommendations to the board about legal questions. Also the more members involved in the association, the better.

How about this idea?

I thank everyone for their advice.

I have decided to pay the legal fees before the deadline.

While I think that my BOD has gone about this collections all wrong, I want to solve this in a way that allows all of us to have the ability to be neighborly.

I am now looking at this a bit differently. A BOD can make decisions which are mistakes and cost the homeowners money. This is just one of those mistakes. If they continue to make mistakes, we as homeowners can elect others to take their places.

I am not concerned about a lawyer being on the BOD. This seems like an asset to the BOD.

I am concerned about a lawyer on the BOD who is also the association attorney. This allows for the possibility that legal actions are made for the purpose of personal gain by the attorney.

I will be addressing my concerns with the BOD after the current issue is resolved.

Kf: I am glad for you that you made a decision to 'take the high road' in
this situation.

With that being said, your concern about a lawyer on the Board who is also the association attorney is well taken. Once the bill is paid, use your energy to ask questions, to be informed, and to be an asset to your community overall.

If the attorney is doing something for personal gain, it will come out and be apparent in the not too distant future. Keep your eyes and ears open!

Board mistake????? Seems to me like you're the one who made the mistake here; do you know what the Associations collection policy is? They only made a mistake if they didn't follow it. I know this seems unfair to you but when the BOD makes a budget they are expecting the money to arrive when it's scheduled and when you're late they still have to pay their obligations.

BTW. Even if you settle with the Association like you said; answer the complaint with your copy of the paid receipt and make sure you get a release of the suit from the Association and put the document in a file that you keep forever.

I agree, the board (HOA) owns at least half the blame. I would pay the $350 just to get out from under because they (the board or at least this liayer) could make things worse. You better believe I'd be looking to get that $350 back with interest. By interest I mean- I'll be looking to make their life as miserable as possible.

Sarcasm will get you no where...but you know that already.

If someone comes along and steps on my foot I make it a point to break their leg. Just so they are sure to think twice before trying it again.

Just my personal beliefs...I'm not suggesting (or ever suggested) anyone conduct themselves the same.

Wayne,
Why it the world would you take me to task for being saecastic after what you wrote?
No hard feeling just felt that maybe it is not such a good idea to be so vindictive, especially against folks that don't even know you. Nlame the board and confront them all you like, I do. I don't try and punish the innocent.

But no matter, no hard feelings on this end, you have lots of good idea.

Wayne fact of the matter OP didn't pay according to the agreement they signed when they bought. It doesn't matter if they paid that way for other years; it caught up to them this year. If you park where you shouldn't and get away with it for a while, it doesn't make it unfair when you do get a ticket. Speaking from personal experience people don't always sign for certified letters thinking that they can postpone the inevitable that way, so we don't send them anymore. Nor do they respond to letters sent ordinary post or notices in the newsletter. The OP says they did not see the letters from the Association, this does not mean they were not sent or received. It is also not the BOD's place to call you up if you're late paying; what might work in a 12 unit condo is not practical in a 300 unit HOA.

Now it is unfortunate that KF had this very expensive problem and I sympathize but as long as the BOD followed their collection protocol they were not in the wrong (IMO). Nor does it do anyone any good to make someone "Pay" for doing their job. That type of petty and vindictive behavior does no one any good and is the sign of a small minded individual; as my momma used to say: "Don't cut off your nose to spite your face."

To all,
Those of us who post here and offer advice tend to get caught up in the heat of the subject and begin to believe we are "right", lose sight of the fact we are "right" only because we got lucky. We never really know enough relevant information to pass heavenly justice. Even if we know enough and our advice is sound, we still are not sure we know enough.

I also think it is bad manners to continue to refer to any profession in a slanderous manner. Certainly not all lawyers are Liayers and if we have lawyers that read our posts, I offer an appology. I think you will find that this site is full of recomendations to seek legal advice.

To EdO,

Please clarify your statement about "a blatant conflict of interest,"
Do you have a statute if Florida that applies to this. We get many questions about what consitutes a legal "conflict of Interest." Especially in Florida HOA and Condos.

RobertR1
Sorry, also meant to add: Some States define "conflict of interest"
under HOA laws as: The none disclosure of a conflict would be
classified as a conflict of interest, but if the conflict is disclosed
and all agree to it then it would not be a conflict of interest.

My, my, my how we do veer from the subject. Now, here comes another country heard from . . . As other posters iterated . . .

A lawyer(s) on the BOD = a good thing.
A lawyer(s) on the BOD that represents the Association = a conflict of interest, if for no other reason than our documents say ‘NO BOD is entitled to COMPENSATION for their position’.

KF didn’t answer whether or not the lawyer on the BOD was the one who filed the suit.

However, KF raises valid mistakes - on both sides. S/he admits that the by-laws said quarterly payment but does indicate when that was actually realized, after initial research. In fact s/he said that “I now realize that I was supposed to pay them quarterly in advance.” While another poster rightly pointed out the ability to avoid certain mail from the BOD (if only temporary), KF said that the BOD admitted to NOT sending anything certified mail.

My $0.02 to KF is, if the mistake on your behave was made in earnest, try to negotiate a reduction in the legal fees with the BOD (say 50/50?). You’ve resolved to pay and they will probably say no but if you don’t ask you’ll get nothing.

Good luck. If you decide to try to negotiate let us know how it turns out.

Tracy

P.S. Make sure the BOD has your correct address and when so, start reading what they send you.

Wayne said: " If someone comes along and steps on my foot I make it a point to break their leg. Just so they are sure to think twice before trying it again. "

and he also continually denigrated an individual he doesn't know, and an entire profession by constantly referring to "lawyer" as "liayer."

What a wonderful addition to civilized humanity. I can smell the testosterone from here.

Yes. That was sarcasm, too.

Just to be clear, I'm also rolling my eyes.

Your original comment on this thread deserved the sarcastic remark that followed it, and you deserve very little respect for your contributions to this topic.

Your personal ethics lesson and nasty nomenclature speak loudly. You are apparently used to sites where trolling and trash talking is the norm.

This is not one.

WayneB3: Please do not use the word "liayer" or any others like it on this site. One of our posting rules is, " Post any relevant topic you like, but please keep it clean, helpful, positive and friendly.".

This is a place where we encourage open discussion in a friendly manner with mutual respect. Denigrating an entire group of people or profession has no purpose here and is not allowed.

Thank you for your future support in this matter.