Angry Resident

WOW! Our community has explored this. Well, some certain past BOD's. We were always directed by our Attorneys to not do this because of the legalities. I was always strongly against this type of public embarrassment.

If your community has an Attorney, I would really pose this question to them. I would also be interested to hear what they have to say.

Our governing documents allow us to share all information to the homeowners, excluding personal financial information. Not sure what state law say's. Didn't need to explore that, since those BOD's were quickly shot down.

Then you go to the local small town gas station, and you see their front desk covered in bad checks that were written to the company.......public embarrassment ?? Where are the lines drawn? I don't know that.

Sometimes management companies can mis-direct. I would keep all documentation from this PM advising you to do so.

I agree with you, Brian. The lawyer is blowing a lot of hot air in an effort to intimidate.

Does anybody out there know of a single case in which a homeowners association has been sued for invasion of privacy by disclosing information? I have not been able to find and written decision in my searches.

Susan,
I too am not a fan of publishing names of violation owners. At our Board meetings, all BODs were given a list of members/topics that were on the agenda and each case was given a coded number. We made it simple to follow by -example- ARC violations were A#1, A#2, etc. That way the Board could follow discussions but not reveal who was the person of the discussion.

Because of the rights of members to review most all paperwork, they could do a written request to see the information so there is no big secret but the general membership was not hearing names of violators. Sometimes if a Board embarasses the wrong person, there could be concequences that end up costly to the association.

Now for part two, which is why I think you may indeed have a dilemma:

You really don't know what compensation this attorney is getting. I would be willing to bet that it is somehow sure to be less then what is owed. Further, even if you successfully defend against this case, you will surely spend more then the amount of money this one person owes. And your resident's lawyer knows this as well. Without strong case law, this can not be considered frivolous and thus, you won't recoup your defense costs. The owner may not win, but you have still lost.

But since I pointed out in my last post no similar cases have been presented in which the HOA won, what if you lose this case? Consider the ramifications. This will be a matter of public record. Further, the attorney now has a client list to contact about his recent win. And he certainly will be willing to take the additional work on contingency.

My guess is that he doesn't really want to file a suit. Or at least he doesn't want to actually argue said suit in a court of law. I would guess that he is looking for a negotiation that will end in a sealed agreement. You admit no fault, and he and his client agree to keep their mouths shut. His client wins because the settlement includes either reducing or eliminating the debt to the HOA. He wins in getting a percent of the settlement (still cheaper then the debt). The HOA "wins" because they don't spend money on defense. Further, they don't face the stark consequences of a loss in court.

If your lawyer won't discuss all of this post with you then you really should ask for him to indemnify you against a loss in court. (And I am sure he won't do that.)

This is what the lawyers handling auto accidents do all the time. They play the margin of cheaper then litigation. Yes, they occasionally take something to court. But only to set the bar higher on what a loss might be. It isn't about winning, it is about being cheaper then a loss. (Or even cheaper then a win in court on many a day.)

Our new pro. mgmt. co is actively pursuing delinquent accounts, which had not been done in the past. Our delinquency is at 9%, and the report shows lot address not names. You don't have to publish the homeowner's name. That's not necessary. However, address of house, why not ??? Owners come and go but the lot/parcel remains the same.

I would not count that printing any information to identify which lots have not paid isn't a violation of the Federal Fair Credit and Collections Act.

kirk raises a fascinating point:

If someone sues the HOA over making their debt "public knowledge", it's a catch-22: as part of their suit, they will have to supply evidence of the disclosure (the newsletter, poster, email, etc.). Once that evidence is introduced into the legal proceeding, it too becomes a matter of public record... thus defeating the entire point of their suit!
of course, a judge could bind it/gag it or redact it, but most courts (and courthouses) still aren't that sophisticated.

fyi, if you want to get a nice list of names, birthdates, social security numbers, tax id's, etc., try your local county courthouse, and look at divorce proceedings. until a few years ago, 2-4 years of tax forms were matters of public records in almost every divorce proceeding.

Sorry but we also looked into doing this a number of years ago. First of all, the atty of our HOA suggested we refrain for a couple of reasons. #1 This kind of action would cause anger amongst HO's and potential lawsuits #2 We inacted a strict collection policy that went into affect after 90 days of no payments.... it was headed by our atty and essentially we ok'd all actions on none paid accounts up too fiduciary foreclosure!

On the rare occasions we have a +30 day late dues issue, our Prez drops a friendly email reminder to the delinquent. Works every time. Keeps peace and harmony, and doesn't embarrass the offender. In fact, our Board policy, as told to Membership, is that we will never reveal the identity of a late/non-payer except as required by law or a legal proceeding or our docs, which limit us to communications with an existing or potential Mortgagee.

GordonD1,

I’m not one that feels the need to disagree (consciously, perhaps) with what others have posted about various HOA related issues, but when another board member (such as yourself) makes such a derogatory remark, as you have made, about other volunteers as being “ignorant”. YOU HAVE CROSSED THE LINE, IMO

I do want to make clear that I too feel that posting the names of delinquent homeowners is immoral whether there posted in a newsletter, on a web-site or otherwise. Secondly, a lien should be filed (first and foremost), immediately upon any HO that is delinquent in their dues/assessments after all other means of collection have been exhausted, according to the governing documents provided. This would include several written notices/letters defining what will happen in the event payment is not received or arrangements aren’t made, to diminish the amount owed, Delivered certified mail. I also feel that at least one phone call, from the PM will more than likely gather the pertinent information that a letter/notice wouldn’t otherwise obtain. Subsequently, late fees and interest will occasionally encourage payment to be made in full.

My forte’ isn’t collections or its procedure, so unfortunately I can’t provide you with the exact information, steps, necessary to properly correct money that is owed to the association, that is why collection attorneys get paid the “big bucks”.

I feel that there is an obligation (or verbal agreement/oath if you will) when a member of a community volunteers (key word) their time and effort in being a board member. Therefore, many of them are not EXPERTS AND SHOULDN’T BE CONSIDERED AS SUCH, IMHO. On the other hand, the property manager (who should be) is hired to provide guidance to those that volunteer their time and that you have so bluntly referred to as “ignorant”

Neither I, nor anyone else can/will change the way you apparently feel. I certainly can’t speak on behalf of the other volunteers, but I don’t feel I’m as educated/ knowledgeable as you feel board member should be, SORRY!

Warmest

Chuck W.

Right on John! Your association is to be admired for its kind, considerate and neighborly approach to what can be a difficult time for some residents. Kudos.

Hello,

I posted this original comment.

I would like to say thanks to all who have replied with helpful information. To the person who said it was sad at how inexperienced a board can be I can only say "what ever"!!!

We are a new neighborhood (5 years old) the demographics of the neighborhood are mostly young single people and retired people. We are defiantly a working class neighborhood so our board consists of 5 people who work full time and even some have more than one job. We are doing what we can to get the neighborhood in order. We have approximately a 50% delinquency rate.

We were advised by a management company that putting the names in the newsletter was appropriate. This was done as a last resort. We placed liens, we sent letters, we got lawyers involved, and we only did what was advised to us by a company we paid.

We did not want to be nasty to the residents but we did what we were told to do.

Carol.

Everyone gets bad advice. And usually we dont' know it's bad until it's too late. Hindsight always wins.

First, you should be thanked for even stepping up to be on a board wherein the association has some definite difficulties; so "Thank you". Far too many residents are willing to complain but not roll up their sleeves and help.

Here in my association it's frowned upon to make public who is late. On the other hand our policy is after 3 months the person goes right to the attorney. You really want to make sure you have an attorney whose specialty is condo or homeowner associations.

And now that one owner has a lawyer involved trying to squirm out of it expect others to follow suit. Even if ou win it costs you money.

You are in a tough nut. Concerning money not coming in, can you even get a working budget? It's hard to do that when half the owners can't afford to fulfill their financail duty.

Good luck.

Dana

Carol,

First, I will say that I don't feel one needs some special experience to be a Board member. I don't put as much stock in experience as many people do. Clearly experience isn't everything as the experienced property manager put you into a mess.

Here is my best advice: believe in yourself. Think things out and vote to take the direction you believe is best. Sometimes this will be in the opposite direction that you are advised to go.

As for collections, the last resort is to file a foreclosure. Obviously you learned that trying to embarrass people into paying isn't such a good idea. I would say the lesson extends into violations of the covenants as well.

As a note, we were told by our management company that one of their neighborhoods published the number of delinquent houses by street to very good results.

In fact, you might want to ask those attorneys if they do collections at no cost to the association. Forcing a foreclosure by your HOA on the home right now would probably not be the best idea - you don't want to get stuck with it. But if you get a lien, well, most people suddenly realize how damaging a lien can be when they pull their credit report. It took us about 4-6 months to get money flowing back in, but we are, and luckily able to make our budget for the most part this year.