California legal?

Started by JackieB • 10 replies • 1768 views

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JackieB
Posts: 196

Posted:

With the major decrease in property values, how does a BOD decide whether to
take unpaid monies(dues, fines, etc) to small claims ct vs filing a lien?

KirkW1
Posts: 1,659

Posted:

I would always file a lien. As for taking it to small claims court, the main thing I would look at is ability to pay. If they don't have money then a judgment won't get you very far.

JackieB
Posts: 196

Posted:

I am unclear why our HOA doesn't seem to collect on liens. It seems they
go into foreclosure (bank) and poof......no funds to pay lien, since the
bank gets their mortgage first.

MaryA1
Posts: 6,993

Posted:

Jackie,

Maybe because there's no $$$ left after the bank takes theirs. This is why a wise board will have a "bad debt" line item in the budget to account for these uncollectable delinquencies. In the past I never thought an HOA should have a bad debt account -- delinquencies should always be collected. But with bank foreclosures running rampant, I was forced to changed my opinion. If there isn't any money left for the HOA after the bank takes their cut and the property owner is near or in bankruptcy, the HOA has no other recourse but to write it off as a bad debt.

JackieB
Posts: 196

Posted:

I agree.......but that is why I thought maybe filing in small claims might be a "??BETTER???" way.....since often they are working, not paying
mortage, have a car, and often other toys........at least maybe there
might be something collected. Does anyone every get money from a bank??
LOL

RobertR1
Posts: 5,115

Posted:

JackieB,
Well you named your post right Jackie.....Calofornia legal.

I would guess and say if you filed in small claims something like a Mechanics lien, you may be able to garnish cars, toys, what ever, even wages. But once the foreclosure is filed I believe the books are closed and you stand in line as Mary said. And of course she is right if there is no money left, you get none. The only real advise that probably would serve all states at the foreclosure level is to get on the list as cheaply as you can and try and determine if it is going to be worth it to hire a lawyer during the process.

JackieB
Posts: 196

Posted:

Can we get on the list without a lawyer (foreclosure list)? With people
being upside down with their mortgages and property values dropping big
time, it seems futile......but i thought small claims might possibly be
more inconvenient for the member with a judgment attached until they pay it off......can't buy a car, refinance, etc........??? I don't know but
it all seems so hopeless and small claims is cheap.
Thanks for advice.......
I don't see us garnishing cars, etc......but it certainly puts a crunch
on the delinquent member in areas he/she didn't anticipate.

MaryA1
Posts: 6,993

Posted:

Jackie,

I believe the procedure is as follows

Step 1, file a lien
Step 2, go to court for a judgement -- if the judgement remains unpaid, then
Step 3, go back to court for a default judgement, if they still do not pay, then
Step 4, take steps to garnish wages or bank account. In AZ, a debtors exam is required whereby the owner is ordered to report to court and tell the judge what his assets/income is. I'm told the owner rarely shows up. Our attorney charges $600 for this and recommends that the board skip this procedure and go straight to foreclosure.

DeniseA1
Posts: 19

Posted:

We have one resident who is living on borrowed time; that is the bank foreclosed on her in June and she is still living in the home. Her monthly dues and assessments are in collection but nothing is happening. Can the association serve her with small claims papers for the past due amounts while she is still living here? Sure saves having to hunt someone down after they leave...

RobertR1
Posts: 5,115

Posted:

Denise,
CA is funny, but I would have to believe if the lien is legal, and the courts let you file the claim, I don't see where you can get in trouble. And you are right,if she has an order to let the court know of any change of address, you could save yourself trouble, just for this reason alone.
I would imagine you could ask the small claims court to include the above in the court order.

MaryA1
Posts: 6,993

Posted:

Denise,

In many instances the trustee sale is postponed over and over again. It could be quite awhile b/4 the bank takes possession of the home and the owner has to move. But, no matter where she lives the HOA can go to small claims/justice court or to Superior Court and file a lien. Before this action is taken on a member who is already in foreclosure it would be a good idea for your attorney to do a credit check to see exactly what her finances are. She could also be on the verge of bankruptcy. If she doesn't have any money you can file all the liens in world but as the old saying goes, you can't squeeze blood out of a turnip. Why hasn't the BOD thought of small claims or filing a lien up til now?

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