Foreclosure due to fines loophole in TX property code? (Texas)
darin Ginther
has removed all of the "general" meetings.. You know, the ones that
they are required to provide notice to the home owners of when & where
the meetings take place.
Currently, the only meeting I can attend is the board meeting. I'm
allowed in only due to my HOA's non-profit status. I am not allowed
to speak or ask questions during the meeting.
My HOA is preparing to signficantly up enforcement of the "minor" CC&R
- issues like leaving trash cans on the street. A 2nd violation
results in a $25/day fine for the home owners.
The board indicated that they knew they couldn't foreclose for
non-payment of fines. The management company (which really runs the
enforcement, lien, and forclosure show) let the board know that such
was true, but what they would do to get around that little prohibition
was apply any future assessment to the unpaid fine, leaving a portion
of the assessment unpaid. They would then proceed with forclosure in
regard to the "unpaid" assessment.
Q: Clearly this isn't ethical, but is it legal? Has this sort of
thing been sucessfully challenged in Texas? It looks to be quite a
large loophole to me.
Stephen P. Cerruti
familiarity with laws in VA and CA.
darin Ginther wrote:
> I've just returned from a "closed" board meeting. Recently my board
> has removed all of the "general" meetings.. You know, the ones that
> they are required to provide notice to the home owners of when & where
> the meetings take place.
Both Virginia and California allow executive sessions during board
meetings which are closed to the membership, however these sessions can
only cover certain topics as specified by law.
In general these are, employment or contract issues, legal matters and
discussions with homeowners about violations.
>
> Currently, the only meeting I can attend is the board meeting. I'm
> allowed in only due to my HOA's non-profit status. I am not allowed
> to speak or ask questions during the meeting.
This is common. Typically there is a homeowner forum that occurs prior
to the meeting being convened for homeowners to bring topics to the
boards attention. However, homeowners as members typically can request
to be put on the agenda to address the board on a predetermined subject
if the request is made in advance of the meeting.
It is not uncommon for boards and management companies to be unaware of
how to run meetings.
>
> My HOA is preparing to signficantly up enforcement of the "minor" CC&R
> - issues like leaving trash cans on the street. A 2nd violation
> results in a $25/day fine for the home owners.
Virginia law caps fines at $10/day for 90 days.
I have been on boards that have received repeated complaints about trash
cans so I can understand why they would want to do this. It is a common
procedure.
>
> The board indicated that they knew they couldn't foreclose for
> non-payment of fines. The management company (which really runs the
> enforcement, lien, and forclosure show) let the board know that such
> was true, but what they would do to get around that little prohibition
> was apply any future assessment to the unpaid fine, leaving a portion
> of the assessment unpaid. They would then proceed with forclosure in
> regard to the "unpaid" assessment.
>
> Q: Clearly this isn't ethical, but is it legal? Has this sort of
> thing been sucessfully challenged in Texas? It looks to be quite a
> large loophole to me.
This is done quite frequently. Homeowners should clearly state that
money paid is to be put towards assessments. Then the board should not
be able to apply it to fines. However, the general advice that should be
given to anyone in that situation is to pay the fines first and then
challenge them. You may be held responsible for interest or late fees on
fines that were unpaid, even if the fines are later overturned.
darin Ginther
> >
> > The board indicated that they knew they couldn't foreclose for
> > non-payment of fines. The management company (which really runs the
> > enforcement, lien, and forclosure show) let the board know that such
> > was true, but what they would do to get around that little prohibition
> > was apply any future assessment to the unpaid fine, leaving a portion
> > of the assessment unpaid. They would then proceed with forclosure in
> > regard to the "unpaid" assessment.
> >
> > Q: Clearly this isn't ethical, but is it legal? Has this sort of
> > thing been sucessfully challenged in Texas? It looks to be quite a
> > large loophole to me.
>
> This is done quite frequently. Homeowners should clearly state that
> money paid is to be put towards assessments. Then the board should not
> be able to apply it to fines. However, the general advice that should be
> given to anyone in that situation is to pay the fines first and then
> challenge them. You may be held responsible for interest or late fees on
> fines that were unpaid, even if the fines are later overturned.
Has this been sucessfully challenged in court?
The board, to the best of my knowledge does not handle the accounting.
This is managed by the mangement company, as are the collections,
turn over for lien, and turn over for the foreclosure process. The
board recently signed over permission to automate this process.
The defense I've heard in regard to this policy is that it is a common
accounting practice to apply any payment towards the oldest most
outstanding debt. IE - if I have an outstanding water bill, I can't
send a check in for the "current" portion of the bill only.
Clearly, this violates the intention of the Texas Property code. The
mangement company can testify - or provide records that indicate that
only partial payment was made in regard to assessments (dues). The
management company could be considered a quasi-netural 3rd party.
Robert Bonomi
darin Ginther <d_gi...@hotmail.com> wrote:
>
[[.. munch ..]]
>
>My HOA is preparing to signficantly up enforcement of the "minor" CC&R
>- issues like leaving trash cans on the street. A 2nd violation
>results in a $25/day fine for the home owners.
>
>The board indicated that they knew they couldn't foreclose for
>non-payment of fines. The management company (which really runs the
>enforcement, lien, and forclosure show) let the board know that such
>was true, but what they would do to get around that little prohibition
>was apply any future assessment to the unpaid fine, leaving a portion
>of the assessment unpaid. They would then proceed with forclosure in
>regard to the "unpaid" assessment.
>
>Q: Clearly this isn't ethical, but is it legal?
Yes, it is legal. And, yes, it *IS* ethical. The fine is accrued
_before_ the due date of the next assessment. Monies recieved are
applied to the 'oldest' debt _first_.
> Has this sort of
>thing been sucessfully challenged in Texas?
Nope.
It looks to be quite a
>large loophole to me.
I'll simply suggest that you need new glasses, or an education in accounting.
ACP
This is a common practice in TX. I've experienced the dreaded
HOA behavior first hand. ;-)
I'm told that it is perfectly legal for the HOA to foreclose for
fines, as well as non-payment of dues, now. It seems this is
another of these things our wonderful politicians slipped thru
the legislature when we weren't looking (kind of like the recent
insurance issues, etc.).
Basically, the HOA can do about anything they want, when and
where they want and the homeowner has NO recourse. Typically,
the majority of homeowners in any one area are not affected and so
will not rock the boat. Don't expect them to band together to
fight the wanna-be politicians who run the HOA. ;-)
I belong to an HOA which interfeared in a dispute between
myself and another property owner, who planted a tree next
to my house. The tree was cracking the foundation. I hired
a lawyer to get the tree removed and almost had it done, when
the HOA president went out campaigning and told the offending
homeowner he didn't need to do anything about the tree.
I finally got the tree removed, but it cost me twice as much as
it would have if the politician had kept his nose out of it. ;-)
I was advised to not pay my HOA fees until they implemented
a mediation program to help me and other owners with inter-owner
issues, such as mine. I stopped paying, owed them a little over $100
and the nasty woman, who ran the association, did start foreclosure
proceedings. She told me she was doing it just because she could and
I needed to be taught a lesson. ;-)
I keep watching the paper for the demise of the crook who runs the
association, as well as the interfearing wanna-be politician. ;-)
I have a feeling justice will be done some day and I don't want to
miss it. ;-)
You might also note that the company contracted to handle the HOA
monies and take care of the association and common areas, CAN
legally use the monies any way they want. For instance, if the
addition sign must be torn down and moved and funds have been
set aside by the owners, for the new sign, the assn. manager can have
her brother in law put up a cheap, new sign and do what she wants
with the monies earmarked for the new sign. Yes. It is legal. I
checked. :-(
I'm told other states regulate HOAs MUCH better than TX does.
Unfortunately, I haven't had much opportunity to experience a good
HOA.
One thing the HOAs in TX have taught me, though, is that
next time, I should avoid properties who make membership mandatory.
That is difficult to do in urban TX, but I'd consider it as a last
resort only.
--------------------------------------
Subcomandante
Yes!
It is easily challengeable in the court if you can show that there was a
commingling of an assessments. The each assessment has legally different
payment priority based on their value not on their age. See Texas
Commercial Code.
a)You must always insist on separate billing with every payment. They
will not do it so you must do it for them.
b) Keep your balances separately and submit them with your payments.
c) Make sure that you indicate on the check that you are paying for
regular assessments only and that the association is not authorized to
apply any payment against any fines or penalty. And if they will violate
this warning the Bord Members will be personally liable for any damages
as result of said violation.
d) I am sure that somewhere there is a law in Texas showing a priority
of payments (try Commercial Code) but it is old common law same as in
mortgage or bankruptcy who get paid first. Taxes, first, second and
third mortgage, other creditors. Any court will always apply any money
paid to association to regular assessments first and rest to penalties.
e) The wild card is a lien and non judicial foreclosure because the
board members will try to do anything to brutalize you. You must stand
your grounds and be ready to show your paper trail of warnings and
paiment assignments.
When you dealing wit these idiots their only power is that they are
lying and intimidating by confusion. You must make sure to keep
assessment separately!!!!!!!! Judge will believe you.
Now my usual discharge of my anger: You are dealing with stupid American
Socialists and Bolsheviks a.k.a moron mongoloids! You, yourself are an
American idiot all your life complaining about Russian Communists an
Muslim Terrorists, claiming that you are best of the best, only to allow
your domestic terrorists take your home. You are no hero. You are
American coward. Now you are exporting this fucking HOA fascism to Arabs
and they are cutting off your heads. I hope that there is a learning
experience for you there. You American coward who sold his
constitutional rights for fear of the fear itself.
-Subcomandante
www.pulido4sale.com
Darin Ginther
"Robert Bonomi" <bon...@host122.r-bonomi.com> wrote in message
news:djbnp0ts3kfi68r0c...@4ax.com...
<RE: Appling payments of assessments (dues) toward unpaid fines in regard to
an HOA>
>>Q: Clearly this isn't ethical, but is it legal?
>
> Yes, it is legal. And, yes, it *IS* ethical. The fine is accrued
> _before_ the due date of the next assessment. Monies recieved are
> applied to the 'oldest' debt _first_.
>
>> Has this sort of
>>thing been sucessfully challenged in Texas?
>
> Nope.
> It looks to be quite a
>>large loophole to me.
>
> I'll simply suggest that you need new glasses, or an education in
> accounting.
>
>
So I queried my CPA in regard to this issue.
If there is no written policy in the HOA or management company in regard to
how payments are applied, it can be done any way the account manager sees
fit.
You assert that it is 100% legal to do the accounting like this and 100%
legal to foreclose based on that accounting. Could you explain what
protections section 209.09 of the Texas Property Code (ie - Texas Residental
Property Owners Protection act) gives the home owner in Texas? I still fail
to see how this is legal or ethical, but I'm willing to consider alternate
opinions. If you are correct, the references statue does not protect the
home owner.
Clearly, I am not a lawyer - but I still assert that this is a direct
violation of the Texas Residental Property Owners Protection act.
Ref:
http://www.capitol.state.tx.us/statutes/docs/PR/content/htm/pr.011.00.000209.00.htm
Subcomandante
regulated by Fair Debt Collection Practices Act "FDCPA" in contrast
fines and penalties are not consumers DEBT and are collected by
conversion into a judgment. So by a definition they have different
priority and cannot be commingled. Your instinct is right! The
association cannot do that.
For example in California Civil Code section 1367.(a) provides: "A
regular or special assessment and any late charges, reasonable costs of
collection, and interest, as assessed in accordance with Section 1366,
shall be a "DEBT" ............... IN ADDITION, ANY PAYMENTS TOWARD THAT
DEBT SHALL FIRST BE APPLIED TO THE ASSESSMENTS OWED, AND ONLY AFTER THE
PRINCIPAL OWED IS PAID IN FULL SHALL THE PAYMENTS BE APPLIED TO INTEREST
OR COLLECTION EXPENSES."
"SHALL FIRST BE APPLIED TO THE ASSESSMENTS OWED"
See
http://caselaw.lp.findlaw.com/cacodes/civ/1366-1367.1.html
There are zillions case laws which are applicable cross nation.
However, do not talk to morons like your CPA he is total idiot.
-Sub
David S Chesler
news:<djbnp0ts3kfi68r0c...@4ax.com>...
> >Q: Clearly this isn't ethical, but is it legal?
>
> Yes, it is legal. And, yes, it *IS* ethical. The fine is accrued
> _before_ the due date of the next assessment. Monies recieved are
> applied to the 'oldest' debt _first_.
Even across classes (here the class of debts which can give rise
to foreclosure versus debts which cannot give rise to foreclosure)?
Suppose I have a checking account at the same bank that holds my
mortgage. A series of events leaves the bank showing a negative
balance (eg -$45.00) in my checking account, which figuring I dispute
with some reasonable argument ("the fee should not have been assessed
because..."). The account stays negative, nobody does much.
It's not the type of thing to take action on, maybe I'm impoverished
and generally judgement-proof, maybe it's too small. But I keep
making my mortgage payments, since I don't want to get foreclosed
and loose the house.
Would it be OK for the bank to take my monthly mortgage payment,
and apply the first $45 of it to the checking account, and then
say that I'm deficient by $45 in my mortgage, and begin to take
action towards foreclosure because of the deficiency?
They've thereby converted an unsecured debt into a debt with
which they've got a security interest. Good for them! It sure
gets my attention! Is that right?
(Expand it further: I've got some $1000 unsecured debt to
some third party. The bank buys that debt, because they are
in the unique position of being able to put the screws to me
that the original creditor is not, and applies that same
accounting methodology. Still no problem?)
--
- David Chesler <che...@post.harvard.edu>
Iacta alea est
Subcomandante
are not paying any attention!
Therefore, as a typical American moron mongoloid you deserve to be
screwed by the association
-Sub.
Subcomandante
>
>
> The relevant 'non-foreclosure' statute does not specify 'classes' of debt, nor
> that 'fines' must be accounted separately from 'non-fines'. Where things are
> _not_ specified, the parties =are= free to 'do as the d*mn* well please', with-
> out risking violation of the 'law of the land'.
>
You such idiot!
For example in California Civil Code section 1367.(a) provides: "A
regular or special assessment and any late charges, reasonable costs of
collection, and interest, as assessed in accordance with Section 1366,
shall be a "DEBT" ............... IN ADDITION, ANY PAYMENTS TOWARD THAT
DEBT SHALL FIRST BE APPLIED TO THE ASSESSMENTS OWED, AND ONLY AFTER THE
PRINCIPAL OWED IS PAID IN FULL SHALL THE PAYMENTS BE APPLIED TO INTEREST
OR COLLECTION EXPENSES."
"SHALL FIRST BE APPLIED TO THE ASSESSMENTS OWED"
See
http://caselaw.lp.findlaw.com/cacodes/civ/1366-1367.1.html
-Sub
Robert Bonomi
David S Chesler <che...@post.harvard.edu> wrote:
>bon...@host122.r-bonomi.com (Robert Bonomi) wrote in message
>news:<djbnp0ts3kfi68r0c...@4ax.com>...
>> >Q: Clearly this isn't ethical, but is it legal?
>>
>> Yes, it is legal. And, yes, it *IS* ethical. The fine is accrued
>> _before_ the due date of the next assessment. Monies recieved are
>> applied to the 'oldest' debt _first_.
>
> Even across classes (here the class of debts which can give rise
>to foreclosure versus debts which cannot give rise to foreclosure)?
The relevant 'non-foreclosure' statute does not specify 'classes' of debt, nor
that 'fines' must be accounted separately from 'non-fines'. Where things are
_not_ specified, the parties =are= free to 'do as the d*mn* well please', with-
out risking violation of the 'law of the land'.
The original poster checked with his CPA, who confirmed that the HOA
_could_ do the accounting in such manner. Given that they _can_ do it
that way, *IF* they =do= do it that way, then the lien is *not* 'solely
based on fines' (thus the cited Texas statute restriction does _not_ come
into play), and, therefore, the lien *is* foreclosable.
*Don't* take my word for it, or even that of the OP's CPA -- look up the
"Generally Accepted Accounting Principles (GAAP)", and see for yourself. :)
"FIFO" queueing of charges and payments is the standard methodology used
by almost all business operations.
> Suppose I have a checking account at the same bank that holds my
>mortgage. A series of events leaves the bank showing a negative
>balance (eg -$45.00) in my checking account, which figuring I dispute
>with some reasonable argument ("the fee should not have been assessed
>because..."). The account stays negative, nobody does much.
>It's not the type of thing to take action on, maybe I'm impoverished
>and generally judgement-proof, maybe it's too small. But I keep
>making my mortgage payments, since I don't want to get foreclosed
>and loose the house.
>
> Would it be OK for the bank to take my monthly mortgage payment,
>and apply the first $45 of it to the checking account, and then
>say that I'm deficient by $45 in my mortgage, and begin to take
>action towards foreclosure because of the deficiency?
Authoritative answer: "Maybe." <grin>
*Read* the documents associated with the accounts.
It is _very_ common for banks to include 'rules' that they *can* seize
'assets' in other accounts, to offset delinquencies in one account.
For _many_ years, financial types have recommended, for *that*very*reason*,
that one _not_ keep any other 'significant' financial assets with the
institution that holds your mortgage. Because they _are_ subject to seizure
to satisfy mortgage delinquencies.
Sometimes, it gets _really_ messy. I know of one case where a delinquent
mortgage was 'remedied' by the bank 'involuntarily' cashing in a CD. From
an IRA account of the customer. And applying the 'early surrender' penalties
against the CD amount. AND triggering the IRS early withdrawal' penalties,
_and_ the income-tax liability. It was *not* a pretty picture.
In theory, they could do the same for an unremedied overdrawn checking acct.
> They've thereby converted an unsecured debt into a debt with
>which they've got a security interest. Good for them! It sure
>gets my attention! Is that right?
A 'fact specific' issue. Actual "facts", like the contractual agreements
between customer and bank, not to mention the matter of 'jurisdiction',
are totally absent. Ergo, no meaningful answer possible.
> (Expand it further: I've got some $1000 unsecured debt to
>some third party. The bank buys that debt, because they are
>in the unique position of being able to put the screws to me
>that the original creditor is not, and applies that same
>accounting methodology. Still no problem?)
*READ* _your_ bank paperwork. I haven't seen it, I can't speculate. I will,
however, go so far as to say "it's _not_ impossible". <grin>
Note, however, that the original poster's situation arose from a _single_
contractual agreement -- albeit that different parts of the indebtedness
were incurred under different clauses of the contract. As such, things
that apply to his situation may, or may not, apply to your hypothetical
which postulate independent origins.
Subcomandante
WRONGFUL LIEN
Q.
The management company for our homeowner association recently hired a
lien service to collect delinquent assessments from a member of our
association. The lien company sent the debtor a written notice stating
that he had 30 days to dispute the debt and that a lien would be
recorded if the debt was not paid within ten days. The debtor did not
pay within the ten days and the lien service has recently started a
foreclosure. The debtor claims that our lien service has violated the
law and demands that we stop all collection action. The lien service is
owned and operated by an attorney. Who is correct?
A.
The debtor is correct. The federal Fair Debt Collections Practices Act
requires that a debt collector provide the debtor with a 30-day notice
before taking any collection action. Your association should immediately
consult with another attorney that specializes in collection law. Your
association may be liable for substantial damages, however, it appears
that your association may have an excellent malpractice claim against
the lien service. Top
WRONGFUL LIEN
Q.
I live in a townhouse development with an association. The management
company recently fined me for an alleged parking violation and then
liened my property for non-payment. The fine was only $25. The lien
fee is $350. What can I do?
A.
A monetary penalty imposed by an association as a disciplinary measure
for failure of a member to comply with the governing documents, except
for late payments, may not be treated as an assessment which may become
a lien against the member's separate interest. In short, the lien must
be removed because it is not permitted by law. In addition, your
management company is in violation of the Federal Fair Debt Collections
Practices Act. They have created a legal liability for your association
as well as themselves. Top
http://www.hoaqanda.com/LegalLiability.htm
It is the federal Fair Debt Collections Practices Act moron!
-Sub
darin Ginther
>
> Q.
> The management company for our homeowner association recently hired a
> lien service to collect delinquent assessments from a member of our
> association. The lien company sent the debtor a written notice stating
> that he had 30 days to dispute the debt and that a lien would be
> recorded if the debt was not paid within ten days. The debtor did not
> pay within the ten days and the lien service has recently started a
> foreclosure. The debtor claims that our lien service has violated the
> law and demands that we stop all collection action. The lien service is
> owned and operated by an attorney. Who is correct?
>
> A.
> The debtor is correct. The federal Fair Debt Collections Practices Act
> requires that a debt collector provide the debtor with a 30-day notice
> before taking any collection action. Your association should immediately
> consult with another attorney that specializes in collection law. Your
> association may be liable for substantial damages, however, it appears
> that your association may have an excellent malpractice claim against
> the lien service. Top
>
Sub, I'm normally with you on these issues - but in this regard all
the HOA has to do is follow the "30-day" rule.
Actually, I the above reason is why a foreclosure due to non-payment
was thrown out - one of the few home owner wins. The citation is:
Brooks vs Northglen
Although cited as a case which was a "victory" for home owners - this
case does nothing to protect us. The foreclosure was overturned due
to the Inwood ruling - the same ruling which yanked our homestead
rights.
>
>
> WRONGFUL LIEN
>
> Q.
> I live in a townhouse development with an association. The management
> company recently fined me for an alleged parking violation and then
> liened my property for non-payment. The fine was only $25. The lien
> fee is $350. What can I do?
>
> A.
> A monetary penalty imposed by an association as a disciplinary measure
> for failure of a member to comply with the governing documents, except
> for late payments, may not be treated as an assessment which may become
> a lien against the member's separate interest. In short, the lien must
> be removed because it is not permitted by law. In addition, your
> management company is in violation of the Federal Fair Debt Collections
> Practices Act. They have created a legal liability for your association
> as well as themselves. Top
>
Again, I agree - this was the point of my post! What my managment
company is doing is against the law. Other companies are doing this
as well. Despite the above lawyers opinion, this has yet to be
sucessfully challenged in court by any home owner. Until then, guess
what - the powers that be will continue to do it.
darin Ginther
> > Again, I agree - this was the point of my post! What my managment
> > company is doing is against the law. Other companies are doing this
> > as well. Despite the above lawyers opinion, this has yet to be
> > sucessfully challenged in court by any home owner. Until then, guess
> > what - the powers that be will continue to do it.
> Again!
> Even though you recognize that the practice is against the law the
> association will not abide!
> As long as there will be American Bolsheviks like you such tyranny will
> exist.
> -Sub
Sub, did you actually READ my post? I think you're hardly justified
in calling me an "American Bolshevik". I point out the illegality of
what the HOA is currently doing. You'll note that I do not support it
and I am actively working to stop it. You'll find that your posts
might be received a bit better if you call the right people names.
Subcomandante
only respond to them. Remember, I am the loon here all others are sane.
As to your post, you have stated: "Despite the above lawyers opinion,
this has yet to be successfully challenged in court by any home owner."
WRONG!
The law is clear! The problem is that there is no single statute in
Texas to combine all of them together. There is no need for any
challenge in the court, only properly conveying it to your stupid board
of directors which probably consists of uneducated Americans and at
least one fat lesbian loud bitch.
1) You must send letter to these idiots and show them that under the
federal Fair Debt Collections Practices Act the HOA regular assessments
are consumer debt and the other assessments like Fines or Penalties are
not consumer debt.
2) So pursuant to federal Fair Debt Collections Practices Act they must
apply all money which you send them and which are identified as money
for consumer debt applied to the consumer debt or they are in the
violation of the federal statute. It is clear and there are no bones
about it.
3) You do not have to pay fines or penalties because they are not
collectible as debt and the association must convert them into a
judgment first by Small Clams or other judicial means.
To insure that they will not screw with you you must endorse paying
instrument your or cashier's check as I do:
--------------------------
For Month ................................. 1, 2004 REGULAR Association
Assessments ONLY + "special assesments if any"
The Association is NOT authorized to apply any portion of this payment
against any FINES or CITATIONS levied against the unit #.......
Pursuant to California Commercial Code section 3311 (Modify for Texas
statute or use federal one) -- crossing out any language herein may
invalidate this instrument.
ANY FOUL PLAY BY A PERSON HANDLING THIS INSTRUMENT WILL BE PROSECUTED TO
FULL EXTEND OF THE LAW.
--------------------------
You do that on every payment for rest of your HOA membership. Now they
are ESTOPPED from any mischief as you described in your original post.
If they fail to apply such payment against the consumer debt and instead
will apply it against any other liability based on first come firs paid,
they will be in deep shit pursuant to federal Fair Debt Collections
Practices Act and TORT of "conversion", similar as theft, and other
actionable violations.
After you do as I told you, they will no more screw with you because now
they know that you are smart American and not typical uneducated Cowboy
without guns from Texas.
-Sub
dcg
Subcomandante wrote:
> Firstly, I do not reed anybodys posts, because no one reeds mine. I
do
> only respond to them. Remember, I am the loon here all others are
sane.
>
You should read mine before labeling me as a "socialist". I don't
support HOAs. Save your name calling for people who disagree with your
opinion(s).
(regard to no one sucessfully challenging an HOA based on the
protections of the property code)
> WRONG!
> The law is clear! The problem is that there is no single statute in
> Texas to combine all of them together. There is no need for any
> challenge in the court, only properly conveying it to your stupid
board
> of directors which probably consists of uneducated Americans and at
> least one fat lesbian loud bitch.
I was speaking SPECIFICALLY of the Texas Property Code - which, as of
1/2002, directly and specifically prohibits the HOA from foreclosing
due to fines or associated fees.
http://www.capitol.state.tx.us/statutes/docs/PR/content/htm/pr.011.00.000209.00.htm
- See sec 209.009.
You seem to have a good grasp on the issues here. I'm sure you
understand our 3 branches of governement.
Just because the legislative branch makes a law it doesn't mean that
the law is worth a @#$@ until the judical branch (court) intreprets
it... To the best of my knowledge, this particular law has not been
used to protect a home owner in court. It directly applies to an HOA.
Until then, the HOAs and management companies will continue to dance
around this issue.
As much as I appreciate your comments on the fair debt collections act
- that may or may not apply in the case of an HOA. Some HOAs are self
managed - the contract is between "private parties". It does not
apply.
> 1) You must send letter to these idiots and show them that under the
> federal Fair Debt Collections Practices Act the HOA regular
assessments
> are consumer debt and the other assessments like Fines or Penalties
are
> not consumer debt.
I haven't tried this.. It might work - assuming you've got a management
company.
I'd suggest that the home owner(s) also LABEL ALL payments going to the
HOA as "ASSESSMENT ONLY".
The protections provided are not concrete or tested, but they might
provide a more substantial basis when the HOA forecloses.
> 2) So pursuant to federal Fair Debt Collections Practices Act they
must
> apply all money which you send them and which are identified as money
> for consumer debt applied to the consumer debt or they are in the
> violation of the federal statute. It is clear and there are no bones
> about it.
The act that you reference ONLY applies to "debt collectors".
Management companies may or may not be subject to the regulatory powers
of this act. Is an attorney a "debt collector"? Probably not.
An HOA (self-managed) is NOT a debt collector as defined by this act -
they don't collect debts for a 3rd party on a regular basis.
I appreciate the suggestion that you're making however - that the
management company that collects for an HOA must apply the payments
appropriately, if labeled as such. I will certainly begin to educated
consumers on this issue.
> 3) You do not have to pay fines or penalties because they are not
> collectible as debt and the association must convert them into a
> judgment first by Small Clams or other judicial means.
I wonder if the filing of a lein qualifies as "judicial means"?
> To insure that they will not screw with you you must endorse paying
> instrument your or cashier's check as I do:
> --------------------------
> For Month ................................. 1, 2004 REGULAR
Association
> Assessments ONLY + "special assesments if any"
> The Association is NOT authorized to apply any portion of this
payment
> against any FINES or CITATIONS levied against the unit #.......
ABSOLUTELY AGREE! CONSUMERS PAY ATTENTION.
>
> Pursuant to California Commercial Code section 3311 (Modify for Texas
> statute or use federal one) -- crossing out any language herein may
> invalidate this instrument.
>
> ANY FOUL PLAY BY A PERSON HANDLING THIS INSTRUMENT WILL BE PROSECUTED
TO
> FULL EXTEND OF THE LAW.
> --------------------------
>
> You do that on every payment for rest of your HOA membership. Now
they
> are ESTOPPED from any mischief as you described in your original
post.
> If they fail to apply such payment against the consumer debt and
instead
> will apply it against any other liability based on first come firs
paid,
> they will be in deep shit pursuant to federal Fair Debt Collections
> Practices Act and TORT of "conversion", similar as theft, and other
> actionable violations.
>
> After you do as I told you, they will no more screw with you because
now
> they know that you are smart American and not typical uneducated
Cowboy
> without guns from Texas.
Thanks for the post, Sub.
Subcomandante
making wrong assumptions about the Texas Property Code.
History: The reason why the Texas amended its code was based on Fair
Debt Collections Practices Act wherein a definition of consumer debt
fits description of the association assessments. Several cords used this
definition to rule against the HOA as to wrongful collection and based
on that, I believe California was first, states had to amend their
statutes to reflect on what is actually "consumer debt" and who is dept
collector. Since the fines do not fit into the consumer dept description
as defined in Fair Debt Collections Practices Act states had to legally
separate fines from the regular assessments which are consumer dept
based on which you can foreclose.
That is all you need! Fair Debt Collections Practices Act and Texas
Property Code. They go together as enforcement against the association's
believe that it can use money send for dues against the fines.
This is purposely left complicated because the CAI industry does not
want the homeowners to know how to fight against HOA and to maintain
fraudulent environment enforced by the tyranny.
Now if you want to take advantage of the Texas Property Code in your
association you must submit to them what I already told you to do. That
would be sufficient.
Reiterating, the beef is in the fact that Texas Property Code recognize
difference between fines and dues and therefore if you send payment
marked for dues only the association cannot apply such payment against
fines. Sane as in California, under the Texas Property Code the fines
are virtually non-collectible by the HOA and the HOA must take you to
small claims court to collect the fines. Judges will usually rule
against the HOA.
You would enforce any wrong doing by use of both Texas Property Code and
Fair Debt Collections Practices Act.
-Sub
Subcomandante
"consumer debt" collector as described § 803.6 so it must collect the
debt (assessments) described § 803.5 within the guidelines of the Fair
Debt Collections Practices Act (FDCPA), regardless what is written in
the CC&Rs or other HOA governing documents.
(See http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm)
Anytime the HOA violates the collection procedures as described in the
ACT it is in deep shit. (See § 813. Civil liability)
The FDCPA is federal law and is applicable in all states.
Pursuant to "§ 809. Validation of debts" the association must identify
the debt.
Since the fines as described in the Texas Property Code do not qualify
as debt described § 803.5, the association cannot even attempt to
collect fines nor it can attempt to convert your assessment payment to
fines. (See § 808. "Unfair practices")
I hope that you are clear now!
-Sub
Scott Hedrick
>
> Yes, it is legal. And, yes, it *IS* ethical. The fine is accrued
> _before_ the due date of the next assessment. Monies recieved are
> applied to the 'oldest' debt _first_.
When I was an apartment manager, the lease was written so that it spelled
this out; thus, if a tenant was responsible for damage, the next payment
received from that tenant was applied to that damage *first*, barring
specific written statement to the contrary by the management. This prevented
the tenants from avoiding paying late fees and other costs, because the
money went to the oldest debt first. If the damage was extensive, we usually
allowed payments to be made.
If someone refused to pay late fees, and there were some (who also insisted
on being perpetually late), they eventually moved out when they were on the
verge of being evicted for non-payment.
The only real problem is if the late fees are compounded- that is, if there
is a $10 late fee, is it applied every month the rent is late? If a person
is late several months, it quickly becomes almost impossible to keep up.
Subcomandante
didnt know about the Fair Debt Collections Practices Act (FDCPA),
(See http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm)
If I would be your tenant I would sue you and the owner of the apartment
complex into a poorhouse.
However, riping of the Americans is as easy as taking candy from children.
-Sub
Karen in MN
"Scott Hedrick" <din...@yahoo.com> wrote in message
news:4uqcr0dll7dombdel...@4ax.com...
My former apartment did that, it was actually spelled out in the lease -- if
you had anything owing at the due date, even if it was the late fee from the
prior month, it was another late fee, because what you paid went to pay off
the previous late fees before it was applied to rent. As I recall, our
association bylaws state that as well -- a payment is applied to the oldest
debt first. But I don't remember when we've ever compounded it like that.
In fact, if the homeowner lets us know ahead of time they're going to be
late, and they're working with us and not just blowing it off, they don't
usually even get a late fee. For homeowners that are working through a
payment plan of several months, because of a major setback like a job loss
or catastrophe of some kind, we will usually waive late fees for the
duration of the plan.
Subcomandante
debt" pursuant to FDCPA section § 803.5, with fines and penalties, which
are not.
The "consumer debt" collection is regulated by FDCPA regardless of what
contract says and fines and penalties are not.
(See http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm)
-Sub
dcg
Sub - Great post.
I don't think you're right about why Texas amended the Property Code as
it applies to the section that we've been discussing (209). This
particular bill was introduced by a member of the Texas Senate - John
Carona. It was titled "Texas Residential Property Owners Protection
Act" - SB507. It also added a a period of redemption in the case of
foreclosure as well as dictating open an "open" HOA requirement
(meetings/records). A few other minor things. I don't think this
change came from or originated from the Fair Debt Collections act in
any way.
Texas is well behind many of the other states on consumer protections
in the property code.
Also - I think we should be specific - the protections you site apply
to 3rd parties acting on behalf of an HOA (debt collectors) - the HOA
itself is a "debt collector".
An HOA is not a debt collector as defined by the federal statute you
mentioned (§ 803.6). Debt collectors go after debts owed a 3rd party:
"....directly or indirectly, debts owed or due or asserted to be owed
or due another". Lets be clear - for consumers - dealing with a
self-managed HOA is another beast and you're not protected! The FDCPA
does not apply to a primary creditor collecting for itself. A
mangement company - or HOA attorney, I would think would be considered
a "debt collector" - but this isn't 100% clear.
I'll back this up by citing:
Davis Lake Community Association, Inc. v. Feldmann, 530 S.E.2d 865
(N.C. Ct. App. 2000):
Creditors engaged in collecting their own debts are exempt from the
federal statute.
There are seems to be a distinct lack of judicial determination on the
fact that HOA managment companies are debt collectors. Seems plain to
me, but a few judges (minority) have disagreeed:
http://www.ccfj.net/faircollres.html
Seems to vary from state to state. I found one citation (ILL) that
what you've stated has been upheld:
http://www.ccfj.net/faircollres.html
Again, I appreciate and believe there is a strong basis for the
protections that you suggest. I'd just note to consumers that this
isn't a "done deal" - you're going to have to prove that the managment
company / attorney IS operating as a debt collector. If you can get
your management company labeled as such, I think there is a strong
basis of legal defense here.
dcg
Sub - Just caught your previous post which may fill the holes for me:
However, a New Jersey court ruled in 1999 that a condominium
association recorded a lien in violation of the act. And, in 1998, a
federal trial court in Maryland ruled that although a homeowner
association wasn't subject to the FDCPA, it might be liable for
breach
of good faith and fair dealing if it knew, or should have known, that
its attorney's collection practices violated the FDCPA.
Any HOA that leins or forecloses acts through an attorney, that
attorney is *usually* considered a debt collector...
Subcomandante
I am not saying that the FDCPA will fully protect you against the
foreclosure based on non-payments of the regular assessments. Anytime
you have the beef with HOA relating to HOA dues you "PAY UNDER PROTEST"
You must write these words on an instrument with which you pay. Then sue
for the amount of the instrument!
However, what the FDCPA will do for you is that the HOA cannot take
money send to them for regular assessments and apply it against the
fines and penalties based on aging! This is important to understand.
You must, in your mid distinguish against "consumer debt" and "alleged
liability" which fines actually are. Same as traffic ticket. You can pay
it or refuse and go to court and if found guilty, then pay it. The HOA
cannot directly collect fines as defined in the Texas Property Code as
non-lienable?.
-Sub
Subcomandante
83 years old lady.
This matter is fairly well settled here in California among the
judges and lawyers. There was initial confusion about 5 years ago but
now the spirit of FDCPA is even embedded directly into the COMMON
INTEREST DEVELOPMENTS
http://caselaw.lp.findlaw.com/cacodes/civ/1350-1350.7.html
California's FAIR DEBT COLLECTION PRACTICES:
"1788.1.(c) The term "debt collector" means any person who, in the
ordinary course of business, regularly, on behalf of himself or
herself or others, engages in debt collection. The term includes any
person who composes and sells, or offers to compose and sell, forms,
letters, and other collection media used or intended to be used for
debt collection, but does not include an attorney or counselor at
law."
That clearly includes HOA as corporation because a corporation is
legally person and definitely it includes management management.
(See http://caselaw.lp.findlaw.com/cacodes/civ/1788-1788.3.html)
Please notice that the attorneys are excluded only if the collect during
a legal action. Many attorneys are actually collectors of the Assessments.
EVERY STATE USUALLY HAS HIS OWN VERSION OF FAIR DEBT COLLECTION
PRACTICES ACT. SEE WHAT IS TEXAS one.
I assume that you have read my post titled YOUR ASSESSMENTS
(See http://www.schildlaw.com/your-assessments.htm)
It was written in 2001 and since then at least in the California things
are fairly clear here
-Sub
Subcomandante
> Subcomandante wrote:
>
>
>
>>Firstly, I do not reed anybodys posts, because no one reeds mine. I
>
> do
>
>>only respond to them. Remember, I am the loon here all others are
>
> sane.
>
> You should read mine before labeling me as a "socialist". I don't
> support HOAs. Save your name calling for people who disagree with your
> opinion(s).
>
>
>
> (regard to no one sucessfully challenging an HOA based on the
> protections of the property code)
>
>>WRONG!
>>The law is clear! The problem is that there is no single statute in
>>Texas to combine all of them together. There is no need for any
>>challenge in the court, only properly conveying it to your stupid
>
> board
>
>>of directors which probably consists of uneducated Americans and at
>>least one fat lesbian loud bitch.
>
>
> I was speaking SPECIFICALLY of the Texas Property Code - which, as of
> 1/2002, directly and specifically prohibits the HOA from foreclosing
> due to fines or associated fees.
>
> http://www.capitol.state.tx.us/statutes/docs/PR/content/htm/pr.011.00.000209.00.htm
> - See sec 209.009.
>
In Texas section 209.009. provides:
FORECLOSURE SALE PROHIBITED IN CERTAIN CIRCUMSTANCES.
A property owners' association may not foreclose a property owners'
association's assessment lien if the debt securing the lien consists
solely of:
(1) fines assessed by the association; or
(2) attorney's fees incurred by the association solely
associated with fines assessed by the association.
It means that in Texas the association can attach a lien however it
cannot foreclosure on it. In California the HOA cannot attach a lien in
first place. So that may require a different strategy of defense than in
California. One should look at civil penalties against the HOA for
filing wrongful lien providing that the above fines were assessed
frivolously.
Scott Hedrick
before. (Also, technology exacerbates the effects of crowding because
it puts increased disruptive powers in people's hands. For example, a
variety of noise-making devices: power mowers, radios, motorcycles,
etc. If the use of these devices is unrestricted, people who want
peace and quiet are frustrated by the noise. If their use is
restricted, people who use the devices are frustrated by the
regulations... But if these machines had never been invented there
would have been no conflict and no frustration generated by them.)
49. For primitive societies the natural world (which usually changes
only slowly) provided a stable framework and therefore a sense of
security. In the modern world it is human society that dominates
nature rather than the other way around, and modern society changes
very rapidly owing to technological change. Thus there is no stable
framework.
50. The conservatives are fools: They whine about the decay of
traditional values, yet they enthusiastically support technological
progress and economic growth. Apparently it never occurs to them that
you can't make rapid, drastic changes in the technology and the
economy of a society with out causing rapid changes in all other
aspects of the society as well, and that such rapid changes inevitably
break down traditional values.
51.Th