community association collections Tag Archives

August 13, 2023

Firm’s Miami Herald Column: “Real Estate Counselor: Technicality Gives Homeowner a Reprieve in HOA Foreclosure Action”

The firm’s latest Miami Herald column was authored by Awilda Esteras and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: Technicality Gives Homeowner a Reprieve in HOA Foreclosure Action,” focuses on the ramifications of a technical shortcoming in an HOA foreclosure action that were illustrated in a recent decision by Florida’s Second District Court of Appeal. The appellate panel found in favor of the homeowner and reversed the lower court’s foreclosure judgment due to the failure of the association and its board of directors to properly levy an individual assessment against the owner. Awilda’s article reads:

. . . The case stems from a 2019 mortgage foreclosure action filed against homeowner Tammy Desch by Deutsche Bank. The South Fork of Hillsborough County II Homeowner’s Association incurred $475 in legal fees for the filing of a required response in the matter by its attorneys, and it then sought recovery from the homeowner as an individual assessment for these costs pursuant to its own governing documents.

The debt subsequently went unpaid by Desch, and in less than one year the balance due on the account grew to nearly $1,700. In order to collect, the HOA filed a lawsuit in 2020 to foreclose its claim of lien for the unpaid assessment as prescribed under Florida law and its own governing documents. It alleged it “ha[d] made assessments against the Property” and Desch had failed to pay, and it attached a copy of its account ledger showing the initial entry for $475 plus the subsequent fees and interest.

The homeowner responded by contending the HOA had failed to identify the origin and basis of any assessment officially levied against her property in accordance with the procedural requirements of Florida law as well as its own governing documents.

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.

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 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.

July 5, 2017

Article by Michael Toback in Today’s Daily Business Review: “Association Documents Override State Law in Previous Owners’ Assessments”

by Siegfried Rivera

Siegfried Rivera

The firm’s Michael Toback authored an article that appeared as a “Board of Contributors” guest 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 “Association Documents Override State Law in Previous Owners’ Assessments,” focuses on the growing consensus among Florida’s district courts of appeal that community associations’ existing governing documents, including their declaration of covenants, override existing Florida law assigning liability to new unit owners for the previous owners’ unpaid maintenance assessments. His article reads:

The latest ruling reaffirming this holding came in late May from the Third District Court of Appeal in the case of Beacon Hill HOA v. Colfin Ah-Florida 7. The association appealed the final summary judgment in favor of Colfin, which had acquired a unit in the community via foreclosure sale, finding that the company was not liable for any amounts owed by the previous owners of the property due to the language in the association’s recorded declaration.

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