Collections

May 21, 2023

Miami Herald Column: “Real Estate Counselor: Unpaid Dues at HOAs Call for Uniform Collections Policies”

by Siegfried Rivera

Siegfried Rivera

The latest edition of the firm’s Miami Herald real estate column appears in today’s newspaper and was authored by Maryvel De Castro Valdes. The article, which is titled “Real Estate Counselor: Unpaid Dues at HOAs Call for Uniform Collections Policies,” focuses on the increased arrears that some South Florida communities are now starting to see as a result of rising insurance costs and inflationary economic pressures. Maryvel notes that boards of directors and property managers would be well advised to review and examine their collections policies to ensure that owners are properly reminded of their maintenance payment obligations. Her article reads:

. . . Boards of directors should look to Florida law and their community’s governing documents to determine if certain actions must be taken before a lien is recorded or a foreclosure action is initiated. Based on these reviews, a standardized written collections policy should be created to outline the steps and timing of notices to delinquent owners. The policy is also helpful to avoid the potential for claims of favoritism or selective enforcement.

When creating a collections policy, there is certain information that should be included. For example, owners should know the due date and to whom the payment must be delivered, the date that late charges will be imposed, the delinquent interest rate, and when a delinquent account will be turned over to a collection agency or attorney for handling. Associations should look to their declaration of covenants or bylaws to confirm if a late charge may be imposed, as Florida law only allows late charges if they are provided for in the governing documents.

The collection of a past-due account most often begins with an official written notice mailed to the delinquent owner. Both the Condominium Act and the Homeowners’ Association Act provide a mechanism for notifying owners of delinquencies known as the “Notice of Late Assessment,” which gives owners 30 days to make payment.

September 20, 2021

Article Authored by Lindsey Thurswell Lehr and Berenice Mottin-Berger in Today’s Daily Business Review: “Funding Community Association Repairs and Renovations”

by Siegfried Rivera

Siegfried Rivera

An article authored by the firm’s Lindsey Thurswell Lehr and Berenice Mottin-Berger was featured as the guest commentary column in the online edition of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and will soon appear in the print edition. The article, which is titled “Funding Community Association Repairs and Renovations,” concentrates on how the funding of long-term condominium maintenance, repair and replacement projects has become a major focus at many communities across the country after the horrific tragedy of the collapse in Surfside, Fla. It notes that many association board members who previously might have avoided increasing monthly assessments and implementing large special assessments are now looking to evaluate and address the inevitable deterioration of their buildings. Lindsey and Berenice’s article reads:

. . . Rather than kicking the can down the road in hopes that future boards will address worsening maintenance concerns, association directors are coming to terms with the fact that delayed repairs and maintenance are likely to exacerbate structural problems and increase the eventual costs, in addition obviously to the potential life-safety risks, to be borne by the owners. As never before, association boards and unit owners have become keenly aware of the importance of maintaining adequate financial reserves to fund future construction projects.

June 21, 2021

Changes to Community Association Collections Procedures Take Effect on July 1

by Michael Toback

Michael Toback

As we reported earlier this month, Senate Bill 56 was signed into law and will go into effect on July 1, 2021. The new law makes changes to the notice requirements of foreclosure actions for condominiums. Specifically, the changes require associations to send a notice to owners of unpaid assessments before an account is sent to a law firm for collections:

d) An association may not require payment of attorney fees related to a past due assessment without first delivering a written notice of late assessment to the parcel owner which specifies the amount owed the association and provides the parcel owner an opportunity to pay the amount owed without the assessment of attorney fees. The notice of late assessment must be sent by first-class United States mail to the owner at his or her last address as reflected in the association’s records and, if such address is not the parcel address, must also be sent by first-class United States mail to the parcel address. Notice is deemed to have been delivered upon mailing as required by this paragraph. A rebuttable presumption that an association mailed a notice in accordance with this paragraph is established if a board member, officer, or agent of the association, or a manager licensed under part VIII of chapter 468, provides a sworn affidavit attesting to such mailing. The notice must be in substantially the following form:

NOTICE OF LATE ASSESSMENT

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March 22, 2021

“They Put Me Through Hell,” Says Homeowner After Contentious Battle with HOA, $33k Settlement

by Roberto C. Blanch

Roberto C. Blanch

Community association collections of monthly dues and other monetary obligations from unit owners have been strained by the Covid-19 pandemic. Given that many families are now struggling with lost work and businesses, some associations have cut back on expenses wherever possible and carefully considered their collections options with debtor owners.

However, occasionally we learn of erroneous or overzealous community association collections efforts reported on local news outlets across the country, perpetuating a negative stereotype of associations being exorbitantly stringent.

One example of such a report appeared recently in the newscasts of WFTV Action 9 News (ABC) in Orlando and Central Florida. The station’s report chronicles how Mims, Fla. residents Cindy Decker and her husband were threatened with foreclosure by their HOA for a debt they claimed to not owe.

“They put me through hell,” she says in the report.

The Deckers, who had raised six children in the home where they have lived for the last 26 years, say they fell behind on their association dues to the Lake Harney Woods Property Owners Association. They claimed that they eventually made good on their debt with the issuance of a check for $892 to cover everything they owed, but Cindy Decker said one month later the association filed a claim of lien against her home to collect the dues and fees that she had just paid.

November 30, 2020

Article by Jeffrey Berlowitz in Today’s Miami Herald: “Community Associations Must Cope with a Coming Wave of Unit-Owner Bankruptcies”

by Siegfried Rivera

Siegfried Rivera

An article by firm shareholder Jeffrey S. Berlowitz was featured as the expert guest commentary column in the Business Monday section of today’s Miami Herald. The article, which is titled “Community Associations Must Cope with a Coming Wave of Unit-Owner Bankruptcies,” focuses on how associations must be prepared to contend with an expected spike in bankruptcy filings by those who lost their jobs and businesses due to the pandemic. His article reads:

. . . Even with the massive COVID-19 economic fallout, bankruptcy filings in 2020 so far trail those from last year, thanks in large part to the federal stimulus package and state moratoriums on foreclosures and evictions. The additional $600 per week in supplemental unemployment assistance, on top of the national average state unemployment benefit of $340/week ($275 per week maximum for up to 12 weeks in Florida), meant that many individuals who lost their jobs were suddenly receiving more money than when they were working.

This supplemental federal benefit expired in July and was replaced by an allocation from the Federal Emergency Management Agency for $300 or $400 per week, depending on states’ participation and contributions, which was paid retroactively from August 1 for up to six weeks. With no more federal aid apparently forthcoming, economists predict consumer bankruptcy filings are bound to rise.

November 2, 2020

Now is Time to Reverse Negative Stereotype of Community Associations for Rigid Enforcement, Collections

by Roberto C. Blanch

Roberto C. Blanch

The GEICO Insurance TV commercials featuring an over-the-top HOA rules enforcer named Cynthia who takes a chainsaw to a noncompliant mailbox are hilariously satirical because they ring a bit too true. Community associations have a negative image in the minds of many for perceived over-reach in their enforcement measures. Unfortunately for associations, this stereotype is exacerbated by occasional media reports about HOAs and condominium associations being hit with numerous complaints from unit owners about their overly stringent enforcement and collections practices.

One such article, which appeared recently in the pages of the Star Tribune daily newspaper, focused on the disputes taking place between homeowners and their HOA’s board of directors at the Heritage Park community in north Minneapolis. It chronicles how the association regularly sends violation letters and collects fines for what some residents see as minor infractions, and it includes an example of a homeowner who was ordered to remove parts of her garden or the association would do so and bill her for the cost.

September 2, 2020

Article by Awilda Esteras in Today’s Daily Business Review: “Appellate Court Reverses Itself, Finds Condo Fees Are Subject to FCCPA Restrictions”

by Siegfried Rivera

Siegfried Rivera

The firm’s Awilda Esteras authored an article that is featured as the “Board of Contributors” expert guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Appellate Court Reverses Itself, Finds Condo Fees Are Subject to FCCPA Restrictions,” focuses on a recent unexpected decision by Florida’s Fifth District Court of Appeal that reverted from more than two decades of case law on the question of whether condominium association fees qualify as debts under the Florida Consumer Collection Practices Act. Her article reads:

. . . The new opinion, which comes in a unanimous decision by all 11 judges of the Fifth DCA, redefines the term “consumer debt” under the FCCPA with its finding that obligations to pay condominium assessments may be considered debts under the FCCPA.

The appellate court’s decision in Williams v. Salt Springs Resort Association reversed the lower court’s ruling that dismissed the case in favor of the association and its property management company. In Williams, an association and property management company were sued after publicly posting a list of names of more than 100 delinquent unit owners along with the balance due by each owner. Williams, one of the owners whose name appeared on the list, filed a class action complaint against the association and the property management company asserting the public posting of “deadbeat lists” to enforce the collection of consumer debt amounted to a violation under the FCCPA.

June 24, 2020

Article by Maryvel De Castro Valdes in Today’s Daily Business Review: “Ruling Proves Community Associations Need to Revise Own Governing Documents”

by Siegfried Rivera

Siegfried Rivera

An article authored by firm shareholder Maryvel De Castro Valdes is featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Ruling Proves Community Associations Need to Revise Own Governing Documents,” focuses on a recent ruling by Florida’s Third District Court of Appeal that added to the growing string of decisions in recent years illustrating how an old and outdated provision in HOA and condominium association declarations is preventing some communities from collecting what they would be owed under the current state law from purchasers in foreclosure actions. Her article reads:

. . . The ruling came in the case of Old Cutler Lakes by the Bay Community Association v. SRP SUB, LLC. The LLC took title to a unit within the community via a mortgage foreclosure auction and subsequently filed an action for declaratory relief seeking to determine its liability for the association assessments that accrued prior to acquiring title.

While Florida law holds that a parcel owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title, including by purchase at a foreclosure sale, the LLC was apparently well aware that the association’s declaration contained a provision that essentially extinguished its liability for the past-due assessments owed by the previous owner.

June 15, 2020

Article by Roberto Blanch in Today’s Miami Herald: “HOAs, Condo Boards Should Brace for a Slowdown in Dues and Tread Carefully”

by Siegfried Rivera

Siegfried Rivera

An article authored by firm shareholder Roberto C. Blanch was featured as the HOA View expert guest commentary column in the Business Monday section of today’s Miami Herald. The article, which is titled “HOAs, Condo Boards Should Brace for a Slowdown in Dues and Tread Carefully,” focuses on the strategies that community associations should deploy in response to the financial strains created by unit owners who become unable to pay their monthly dues. His article reads:

. . . As they begin to consider their options, some associations are now giving thought to relaxing their collections by waiving late fees and interest on delinquencies, and perhaps also foregoing entire monthly payments for those who become unable to pay due to the economic standstill. While this may appear to be a reasonable response, association directors must not lose sight of the fact that they are fiduciarily obligated to pursue the uniform collection of all payments and delinquencies, so they may be limited in their ability to offer any special considerations or concessions for those experiencing financial difficulties.

Payment waivers for the economic casualties of the COVID-19 pandemic could also open the door to future requests by unit owners for similar concessions related to other financial setbacks.

Instead, associations could borrow a page from the playbook of previous economic downturns and consider sanctioning a uniform payment plan to assist owners who become delinquent. With the help of qualified legal counsel and financial professionals, they could create a payment plan that is uniformly available to assist all the unit owners who suddenly become unemployed.

May 6, 2020

Roberto Blanch Quoted in Real Deal Article: South Florida HOAs and Condo Associations Prepare for a Drop in Collections

by Siegfried Rivera

Siegfried Rivera

Firm shareholder Roberto C. Blanch was quoted extensively in an article today by The Real Deal South Florida on the looming financial strains for community associations due to the spike in unemployment caused by the COVID-19 economic standstill. The article, which is titled “South Florida HOAs and Condo Associations Prepare for a Drop in Collections,” discusses the options that associations are considering in response to the expected delinquencies. It reads:

. . . Attempting foreclosure is also an expensive process that some associations will want to avoid, and the temporary freeze on foreclosures and evictions until mid-May is expected to create a backlog of cases.

Plus, “the end game – foreclosure – may not necessarily be in the best interest of the condo [association],” said Siegfried Rivera attorney Roberto Blanch.

A number of associations he represents have been proactive about reducing operating expenses wherever possible. Blanch said associations are “anticipating they are going to have difficulty collecting payments from owners who have lost their jobs, who have been furloughed, or been laid off.”

Some are offering payment plans or waiving late fees to owners who have requested that, similar to what happened in 2008 and 2009. But the true impact has yet to be seen, he said. Payment plans could consist of lowering the portion of fees an owner has to pay for the first three months, and then spreading the rest out over the remaining set period of time.