mcb0sse

Issue with HOA and Collections Agency

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Hi Everyone, 

 This is my first post. I've done some research on the site, but wanted to get some feedback on my specific situation. I purchased a home with my wife in Palm Beach county, FL, in October 2015. We have two HOA's that manage our community. We found out in March of 2016, that there were back due HOA fees from the prior owner (this hadn't been revealed to us in closing), and in contacting the title company, found that they had been communicating with the collections agency that was managing the accounts. The title company sent us their correspondence, as well as the estoppels and signed checks. However, we discovered that the collections agency stated that the checks for the estoppels were never mailed, and that the accounts remained in collections. We also discovered that we were never given our account information or a way to make HOA payments. Having never received a bill or request for payment from anyone until a quarterly HOA fee came up with no way to make payment, we were surprised. We have been contacted by two collections agencies representing the HOA's, stating that we are owing roughly $18k on the accounts, dating back to 2013. Subsequently, the collections agencies I believe failed to follow the FDCPA. On one letter they state that we have 45 days to dispute or request validation before they place a lien on our home, although my understanding is that I have 30 days to send out a DV letter. As for a timeline, we were first given an itemized listing of the accounts in April, and sent a DV letter shortly after. They have not responded. For the second collections agency, we received that letter on the 7th of July, and responded with a DV letter on the 8th. We sent duplicate letters to the Title Company and the HOA regarding this situation, but have not received anything back. We are working with an attorney, who is taking the approach of let's ask questions first and do surgery later, if needed. However, my concern is that this has been going on for nearly half a year and we would like this over and done with. 

 

I would appreciate your feedback on our situation and your thoughts on how to move forward with this!

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1 hour ago, mcb0sse said:

Subsequently, the collections agencies I believe failed to follow the FDCPA. On one letter they state that we have 45 days to dispute or request validation before they place a lien on our home, although my understanding is that I have 30 days to send out a DV letter.

I'm assuming the back fees passed to you when you purchased the house?   If not, you're not the consumer and the HOA's argument is with the former owners.  What is stated in your contract?

The FDCPA does include a 30-day validation period.  If the collection agency attempted to reduce that time period, it would be in violation.  A court is not going to penalize a collection agency for allowing you more than that period of time to dispute.

I understand that you're frustrated.   If you feel your attorney is not doing his job, contact other attorneys.  Just as you would with a doctor, get a second opinion.   However, I'd want an attorney who is cautious and gets information before he starts filing lawsuits and unnecessary motions that could end up costing me in the long run.

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Thank tou for the feedback, it is certainly a frustrating situation. This was our first time buying a house. 

From what we were told by our realtor and what we found in the HOA bylaws is that there is no application for homeowners to the HOA. I do not have the bylaws in front of me, but from what I recall once you have the deed you are a member of the HOA. The bylaws for the larger HOA do have the "jointly and severally liable" statement but on the bylaws for the smaller HOA it does say that you are only liable for assessments that come forth when you've owned the home, unless you agree to them. Our HUD-1 statement shows that there were two estoppels that were paid by the sellers as part of closing to cover past due however at the time of closing we were not provided with the actual estoppels or the estoppel certificates from the HOA. I have it from the title company that the checks were sent twice, but the first time they claim they never received them, and the second they acknowledge having but will not cash. 

This is may not directly answer your question, but I hope helps to build an understanding of what is going on. 

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22 minutes ago, mcb0sse said:

Thank tou for the feedback, it is certainly a frustrating situation. This was our first time buying a house. 

From what we were told by our realtor and what we found in the HOA bylaws is that there is no application for homeowners to the HOA. I do not have the bylaws in front of me, but from what I recall once you have the deed you are a member of the HOA. The bylaws for the larger HOA do have the "jointly and severally liable" statement but on the bylaws for the smaller HOA it does say that you are only liable for assessments that come forth when you've owned the home, unless you agree to them. Our HUD-1 statement shows that there were two estoppels that were paid by the sellers as part of closing to cover past due however at the time of closing we were not provided with the actual estoppels or the estoppel certificates from the HOA. I have it from the title company that the checks were sent twice, but the first time they claim they never received them, and the second they acknowledge having but will not cash. 

This is may not directly answer your question, but I hope helps to build an understanding of what is going on. 

Wow!  What an introduction into home ownership.

Unless one is versed in contract law, what you have stated shows the need for an attorney.   For instance, what does your contract state about full disclosure?  

When a friend of mine put her house up for sale, she was behind in HOA fees.  She was informed that she either had to pay the fees or disclose that those fees were still owed.

Have you asked your attorney about full disclosure?

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We haven't yet, but we definitely will on Monday. Regarding disclosure, would there be any information in the closing documents? To add more detail as I think about it, we did go to the title insurance company who said this was not a covered issue after they reviewed the situation. Our attorney specializes in real estate litigation, so hopefully he will be in tune with these issues. 

I will also look into disclosure laws in Florida, for my own knowledge. 

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6 minutes ago, mcb0sse said:

We haven't yet, but we definitely will on Monday.

Good.  In real estate transactions, full disclosure is usually required.   Ask any and every question you can think of and get details. 

Give me a few minutes.  I'm contacting a friend who is in real estate.

 

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Awesome! After we got all of the information in March from the title company we realized there were documents in there that we had never seen...

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27 minutes ago, mcb0sse said:

Awesome! After we got all of the information in March from the title company we realized there were documents in there that we had never seen...

I contacted my friend from another state.   She could not say that basic contract law requires full disclosure in regard to HOA fees and suggested that it could be a state by state issue.

As was told to my friend here in SC that delinquent HOA fees had to be disclosed, she agreed that she or a contract would disclose such information.  But again, she could not say that it's required in every state.

So, ask your attorney if FL law requires that disclosure.  If not, does he believe that basic contract law requires it?

BTW, do you have a contract with your attorney?

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I researched a bit regarding contract law, apparently in FL you have three days from the time that you find an error in the contract to dispute or void the contract if issues weren't disclosed. At least this is my understanding, so I could be wrong. However, looking into the seller's contract, I did find statements that seller would pay all HOA estoppel fees prior to the transfer of title, which did happen, but then in my closing documents have an affidavit signed by the seller that details, as far as the seller knows, there are no assessments, liens, etc. for the seller that could attach to the property. In one of the, albeit few, communications from the HOA management company details that the home was in collections in July of 2015, which would suggest that the seller had some awareness to this. 

I have a verbal contract :rolleyes:. The attorney is the partner of the attorney for the company I work for, so at least we feel a little more comfortable knowing they have an interest in us having as few stressors in life as possible. We should probably get something signed...

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@mcb0sse

Now you have some good questions for your attorney.   I'd write them down so I wouldn't forget them (but that's just my lack of memory). 

I still wonder why those checks weren't cashed.   In any case, I don't see how you could be held responsible for those fees when it appears the previous owner knew about them, and they weren't disclosed to you.  I wonder if the real estate agent knew?

 

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That is the $16,000 question. It is befuddling, but everyone seems to have tossed the responsibility down to us to get this all sorted out. It took the first debt collection agency 15 days to get me an actual amount they claim was owed. Before that, they simply claimed I have an account but they could tell me what the amount was. The management company said that they could not tell me anything until I settled the accounts with the debt collection agency. I'm sure I will have more information this week!  

I've got a laundry list of questions and ideas. I've been scouring the by laws and FL state laws. It definitely seems that they have violated some statutes and bylaws, namely the ones surrounding communication of violations, fines, assessments, etc as well as the enforcement of estoppels. 

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