Author: David Acosta, CASECLARITY
Who defends clients facing HOA lien foreclosure claims?
Over the past 14 years I have worked as litigation consultant with many law firms in consumer law cases helping counsel win or obtain settlements favorable to their clients. My work, not as an attorney, is focused on fact gathering, analysis and research to help counsel gain a strong footing in the case.
I have seen lots of able lawyers, who have developed a decent foreclosure defense practice, stay away from representing clients needing help defending against homeowner association lien foreclosure. These are the same lawyers who eagerly take to fighting the bank’s mortgage action. To be clear, that is not the case with the Weidner law firm. But for the others, I ask: Why don’t more law firms take on these types of cases?
Shouldn’t foreclosure defense lawyers be able to fight HOA lien actions the same way they fight the bank? Of course that question presumes the two types of lawsuits are the same, or similar enough. They are not. But that alone is probably not a good reason to turn away homeowner who need to resolve a HOA’s lien claim. Or worse, send the client into bankruptcy because there is little visibility to other options. What I see keeping law firms from reaching viable defense strategies in these types of actions is an information gap and absence of a defined process.
Can’t get to strategy if you don’t understand the theater of battle. Honestly, though, it’s no different than with the way law firms learned to navigate mortgage foreclosure defense. I mean, most lawyers readily admit knowing little to nothing about the numerous problems associated with mortgages, promissory notes, securitization and all the shenanigans practiced by the lending industry before 2007-2008. Learning about the context of these issues supplied a path to viable foreclosure defense.
This post points to sources, methods and workflows that counsel can explore to better understand the context of HOA lien foreclosure and where facts may be found to assist defending clients facing this type of claim. It’s the kind of process and firepower Weidner Law deploys when cases warrant litigation.
All foreclosures are not the same.
How do HOA lien actions compare to mortgage foreclosure? In mortgage foreclosure, a financial institution sues to recover money a homeowner borrower allegedly owes and has not paid. The bank’s action asks the court to terminate the homeowner’s right to the property by foreclosing a mortgage lien and then sell the house which the homeowner previously agreed would secure repayment of the loan. To win, the bank must establish: (1) the bank has a legal right to enforce a mortgage loan agreement signed by the homeowner; (2) the homeowner did not pay as promised, including after the entire loan balance was declared due (acceleration); and, (3) the bank is entitled to recover all costs of enforcing the mortgage loan.
In an HOA lien foreclosure action, a homeowners association, a non-profit corporation or limited liability company sues a homeowner to foreclose a statutorily-authorized lien for non-payment of some amount alleged to be owed pursuant to the terms of the community’s governing documents. To win, the HOA must establish: (1) homeowner failed to pay certain sums to the HOA pursuant to an agreement that also authorizes imposition of a lien on the homeowner’s property; (2) the HOA served notice to the homeowner of its intent to foreclose the lien; and, (3) association is entitled to recover costs of enforcing the agreement.
Both actions are based on a contract promising payment, an allegation the defendant failed to pay followed by a lawsuit aimed at terminating the homeowner’s property rights and selling the home to recover money. But the apparent similarity and common denominators under this simplistic view is where sameness between these two types of lawsuits ends.
The law applicable to the creation and enforcement of each type of lien is completely different; evidence required to establish the claims, validity of liens, conditions precedent and legal defenses are all very different. Understanding these differences, similarities and context can go a long way to helping counsel better represent homeowners in distress over HOA lien foreclosure.
Are HOA foreclosures harder to defend?
Homeowner association lawyers, and surprisingly, many consumer lawyers, see HOA lien foreclosure actions as easier to file, prosecute and complete – certainly easier than mortgage foreclosure actions. After all, it’s presumed the HOA has a bullet proof declaration of restrictive covenants recorded in the county public records which liens the defendant’s property; the homeowner didn’t pay and the statutes authorize foreclosure under these conditions. Under this view, the HOA will simply get a judgment anyway. Why spend the energy to fight? If this thinking sounds familiar, it certainly is. It’s the view many attorneys had when the mortgage meltdown began and prospective clients flocked to get representation in hopes of keeping their homes.
Compare that simple set of facts to bank actions with such problems as lost promissory notes, questionable and often conflicting mortgagee assignments, problems with meeting conditions precedent to bring suit, robo-signing, robo-witnesses and a whole panoply of other issues from which defenses may be helpful to the homeowner. In my experience HOA lien actions have just as many vulnerabilities if you know where to look.
So, what is the context, information and related facts that can supply defenses to HOA lien foreclosure actions? In simple terms, when asked to help with this type of case I follow an eight-point check list to discover facts that may help counsel defeat or settle the association’s claims. My examination looks for answers to specific questions.
(1) Is the HOA lien substantively valid?
(2) Has the HOA brought its claim by proper procedure?
(3) Are real or personal defenses available to defend the claim?
(4) Are equitable defenses available to defend the claim?
(5) Can the claim be offset by counterclaim or third-party action?
(6) Is there a viable path to settlement?
(7) Has debt collection on the lien resulted in violation of state or federal law?
(8) Is the HOA evidence legally sufficient to win?
This is my list. At least the part I’m willing to publish.
Validity of the Lien
The first item on the list looks at whether the HOA claim is properly framed and filed. For example, and apart from whether or not the complaint stated a claim for relief, Fla. Stat. § 720.3085(1)(a) describes what a lien must state “to be valid”, which includes, among other things, the association’s address. The statute governing condominium associations has similar language. Fla. Stat. § 718.121(5)(b). A quick look at the lien attached as an exhibit to the complaint must show the HOA’s address. If the HOA’s address is not there, or if an address of some other entity is there (like the address of the law firm prosecuting the claim) the lien would fail to meet the statutory requirement and would be invalid. This kind of defect is easy to spot and presents an early opportunity to attack the legal sufficiency of the claim long before counsel reach for other types of defenses.
This particular “address” type of defect is not a minor technicality and has been examined by Florida district courts in statutes requiring a specific address. See Robinson v. Sterling Door & Window Co., 698 So.2d 570 (Fla. 1st DCA 1997)(interpreting Fla. Stat. § 55.10(1) requiring a judgment creditor’s address, not that of its attorney); see also Hott Interiors, Inc. v. Fostock, 721 So.2d 1236 (Fla. 4th DCA 1998)( liens did not attach to their real property because the judgment contained the address of only the judgment creditor’s attorney and not of the judgment creditor). Appearing on the face of the complaint, this type of defect may open the door to a disposition of the claim by judgment on the pleadings.
Initial examination of an HOA claim must not overlook whether or not the HOA fulfilled conditions precedent to bringing the claim, including service of all required notices pursuant to Fla. Stat. § 720.3085, or whether the homeowner contested the lien pursuant to subsection (1)(b) which limits the time for filing a lien action. The point is that early examination presents opportunities to defend the claim by exploiting the HOA’s failure to bring a valid claim in the first place.
A win at this stage, via motion to dismiss, for judgment on the pleadings or for summary judgment, can change the economics of the dispute enough to settle the claim without having to engage in more substantive litigation. But we’re just getting started.
Substantive and Equitable Defenses
The second through fifth items on my list explore facts that may present defenses, offsets or counterclaims. Interviewing the homeowner, for example, may reveal the HOA has made one or more accounting errors or misapplied funds; the amounts claimed may be wrong; the underlying assessment, fine or other amount may not be authorized under the association’s governing documents or state law; or, the association has some legal impediment to impose the claim at all.
Alternatively, the association’s conduct may open the door to viable defenses, such as the failure to follow its own dispute resolution procedures allowing property owners to notice and opportunity to be heard. Or, as occurred in one case, the HOA operated way outside the bounds of its own governing documents without the statutorily-required duly elected board of directors, which had a detrimental impacted on all its claim. In that case the HOA walked away from a six-figure claim and paid the homeowner a large sum of money. My work has revealed this is a common problem with Florida homeowner associations.
Every HOA lien foreclosure worth defending requires examination of the association’s governing documents, including declaration of restrictive covenants, bylaws, articles of incorporation and any amending documents filed into county records. To ascertain whether or not the HOA is operating according to its own governing documents I examine the association’s official records by document inspection, as authorized by Fla. Stat. § 720.303(5).
In examining governing documents, counsel must be mindful to determine what law governs a particular homeowners association. For example, the homeowners association statute, Chapter 720, was only enacted in 1992. Before Chapter 720, associations were governed by Chapter 617, the statute for non-profit corporations. What law applies may turn on when the association was first formed, what date it filed governing documents and whether, among other things, the HOA amended its declaration to be bound by only Chapter 720.
In every case where I have conducted a document inspection we found something substantive and useful for defending the lien claim. This has included accounting errors, internal procedural defects which made the lien invalid, inconsistencies or gross errors applying interest charges and other fees. In one instance the association produced internal formal correspondence admitting there was insufficient evidence to win the case against our client. Bottom line: document inspection is key. And, the statutory provision authorizing this type of review makes it way easier than trying to gain access to the same materials through formal discovery.
When taken together, homeowner interview, examination of governing documents and official records, counsel may find viable defenses such as payment, waiver, legal lack of capacity to sue, laches, statutory defenses, misrepresentation, equitable estoppel, fraud and illegality. Counsel will have to determine whether or not any specific defense will be advanced. This part of the workflow is focused on finding facts that may unlock one or more defenses.
The sixth item on the list, seeking a path to settlement, can also benefit from fact-finding. The document inspection, for example, may expose information helpful to settling the case. For example, association records may reveal HOA claim settlement patterns, possibly answering why and how these decisions are made. This information may come from reviewing board meeting minutes, correspondence, accounting ledgers, email records or similar documents. Enough insight may be gleaned to help counsel extend or respond to an olive branch opportunity aimed at settling the case. This would have strategic value that can counterbalance brazen and scorched earth tactics many HOA lawyers employ prosecuting these lien claims. It happens all the time: HOA lawyers take a hard line at every turn even though the HOA board wants to settle and avoid costly litigation. Intelligent document inspection may help triangulate this problem.
Abusive Debt Collection: Leverage
The seventh item on my list, which should be a separate post altogether, focuses on whether violations of federal or state debt collection laws occurred in strong-arming the homeowner into paying up. Numerous stories are told where the HOA and their attorneys engaged in egregious conduct to shame, humiliate and embarrass the homeowner into paying past due assessments or fines.
This is an important part of defending HOA lien actions because abusive debt collection can lead to severe consequences for the homeowner and the family. Collection of a $200 assessment can escalate quickly into the thousands of dollars when HOA counsel purposely ratchet up fees and costs knowing their law firm will get paid first when the house is sold at public auction. For some families, the difference between the original amount of a relatively small claim and size of the ultimate judgment often determines whether or not lives of family members will be disrupted and displaced from their home by force of law. It can have devastating consequences that HOA counsel neither appreciates nor considers as they bully their way in closing another foreclosure case.
When lawyers are forceful and aggressive in collection of these consumer debts they can violate federal and state law. This includes possible violations of the Fair Debt Collection Practices Act (“FDCPA”) 15. U.S.C. § 1692; Florida law under the Florida Consumer Collection Practices Act, Fla. Stat. § 559; or the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501. Finding violations under these statutes can change dynamics of settlement negotiations or supply a path to bring claims that may offset the amount of the original claim. In some cases these counterclaims (directed at the HOA under state law) or third-party claims (directed at the prosecuting attorneys or other debt collectors) have resulted in wiping out the original obligation altogether.
Counsel can help clients “shout back” against debt collection abuse by flexing statutory authority when violations are found.
Attacking the Evidence
Item eight on the list focuses on examining the viability of HOA’s evidence presented in support of a motion for summary judgment or evidence at trial. Assisting counsel with this part of the defense includes, among other things, finding defects that may keep evidence from the court’s consideration. For example, HOA affidavits offered in support of summary judgment may be legally defective and subject to being stricken for an affiant’s lack of personal knowledge, failure to attach referenced documents, or attaching documents not sworn-to or certified, as required by Fla.R.Civ.P. 1.510.
In some cases the association’s records may conflict with the amounts of the lien claim, or may be in conflict with the source of the alleged obligation where the amount claimed originates from an assessment but HOA records show it as a fine, interest or some other charge. These examinations can expose factual issues that cannot be resolved by motion for summary judgment. It can also open the door to better deposition examination or even keep evidence from coming in at trial.
In closing . . .
So, how does one defend HOA claims? Every attorney will answer this question differently and do it his or her own way: examining documents, interviewing the client, fact finding, advising the client and ultimately advocating for the homeowner in court. Steps one through eight above have worked for me in assisting attorneys who have asked for help defending against HOA claims. Hopefully this list helps identify the range and context of sources to find defenses for homeowner clients facing HOA lien foreclosure. The list also suggests a possible workflow counsel can adopt to make this part of the firm’s practice predictable, manageable and efficient. It is by no means an exhaustive list. To be sure, other parts will remain unpublished.
This post was inspired by a recent win by Weidner Law on a longstanding HOA case I was asked to support. I hope this information inspires other attorneys to expand their view of the sources, methods and workflows that can be used to find and advance defenses on behalf of homeowners facing HOA lien foreclosure.
P.S. Matt Weidner invited me to blog about this work on his website. If you found this post helpful and would like to like this, please comment below. If there is enough interest, in a future post I will explore 12 different types of foreclosure plaintiffs and point to vulnerability of their respective types of claims.
Author: David Acosta, CASECLARITY