When to lien and/or foreclose

An attorney that we are working with on delinquent sassessments is refusing to file liens on properties that are in FC. Our feeling is that, although the association is to receive an amount set by law for assessments that are in arrears during a bank FC, we've had FCs where we had to then pursue the bank to obtain these fees. If the lien is filed, the chance that the bank would blow off what they owe is minimized.

If we have already paid the attorney for the notice of lien and the time for HO response has passed, how can he refuse to file the lien, which we will also be paying for?

The attorney notes on the website for each of these cases says- "Received request to proceed with claim of lien- not proceeding due to bank foreclosure." These are all propeties that are still owned by the HO, title has not changed.

Also, does anyone have any links that will provide guidelines as to when to lien, when to foreclose? In these wild times, nothing is cookie cutter any more. There are all kinds of strategies to consider and even then, it is often a crapshoot when making the decision. I am looking for something ala- "rules and strategies of the game" that the board can use in determining what steps to take on a case by case basis.

Anne,
Has your Board considered changing attorneys. When an attorney gives you an opinion for which you question the validity perhaps it is prudent to ask the basis of their opinion. IOW, the statute, appelate court case, trial case, etc. The answer given was not "yes" or no"; thus further clarifion is needed. I suggest your HOA approve Rules on Collection of Delinquent Accounts which includes the entire process including lien and foreclose.

I have no idea with the nuances are in Florida.

In Kentucky, one does not have to be a lawyer to file a lien.

We have also filed liens on homes that are "in foreclosure."

There is no blanket answer on that one, either, though.

For example, if the amount owed on the loan is more than the house is worth, our attorney does not RECOMMEND filing a lien against it. Nine times out of 10, you would be throwing good money after bad.

But if we insisted (though I don't know why we would), our attorney would file it because, well, we're the client and it's not illegal. . . .and he made his recommendation. . .

At any rate, there have been a handful of times we've gotten the money even after foreclosure has begun.

For one thing, believe it or not, there are times when homes go into foreclosure, the process begins, and then the homeowner manages to pull it back out and -- there ya go. No more foreclosure.

And with the mortgage assistance that's coming down the pike, that may possibly happen in many cases.

It's a gamble, but if you're willing to take the risk, I don't know why the attorney would simply refuse.

Unless there is something in Florida that won't ALLOW a lien to go against a house in foreclosure. Here it's optional; it all depends on the amount of risk you want to take. Oh, and if the bank DOES take title (if the foreclosure goes through to completion), in Kentucky our lien is wiped out anyway.

So the HOA would really have to be sure it thinks that it will get its money if it wants to go ahead and file anyway. But it's still the HOA's call.

Why are you paying someone for services not rendered? If they don't file, they shouldn't charge you.

Now to be honest, I don't see the point in filing a lien when the house is in foreclosure (unless the house is worth significantly more then what is owed on the primary mortgage).

The bank knows about the HOA and will pay what they pay with or without the lien. And if they fail to pay after they take possession, then you file a lien for sure as they won't get out of that one.

TYPO CORRECTION- We don't pay for the claim of lien to be filed because the attorney is refusing to file it! It's crazy!