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Articles Tagged with community association foreclosures

AEsterasThe 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. AEsteras-8-23-clip-for-blog-300x261In 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.

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RobertoBlanch_8016-200x300An 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.

MHerald2015-300x72Instead, 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.

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Jonathan Mofsky Gort photoThe firm’s Jonathan M. Mofsky authored an article that appeared as a guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Important Ruling for Associations Seeking to Foreclose in Advance of Lenders,” focused on the clarity that was created by a recent appellate ruling over some lingering questions involving community association foreclosures.

Jonathan’s article reads:

The decision by the Fourth District Court of Appeal in Jallali v. Knightsbridge Village Homeowners Association clarifies the applicability of a 2012 ruling on association foreclosures by the same appellate court in U.S. Bank v. Quadomain Condominium Association. This prior ruling was being incorrectly applied to assert that associations were barred from filing foreclosure actions based upon a claim of lien recorded after the recording of a notice of lis pendens by a lender.

The language utilized in Quadomain created confusion for cases involving association lien foreclosures, which has become one of the primary remedies for associations to address the inequities caused by mortgage foreclosure cases that take years to complete. By filing and quickly prosecuting separate foreclosure actions based on liens for unpaid assessments, associations have been able to acquire and rent properties embroiled in prolonged mortgage foreclosure proceedings.

dbr logo-thumb-400x76-51605The ruling created a substantial hurdle for associations to overcome against homeowners who raised the Quadomain defense, which in some cases enabled the owners to defeat or delay association foreclosure actions and remain in their residences without paying monthly dues or mortgage installments while the lenders’ foreclosure cases languished.

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