KF
(Kansas)
Posts:8
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| 01/11/2008 6:57 PM |
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I have lived in my house for 4 years and paid my dues every year. First two years, HOA was in control of the developer. After living in house for the first year, I had to search out how much my dues were and where to pay. At end of year one I then paid dues for year one. I have paid each years dues at the end of the same year. I now realize that I was supposed to pay them quarterly in advance. I found this out because my HOA sued me In december. I promptly paid the dues the next day. Had my HOA simply asked me about it, I would have corrected my payment method and payment time. The HOA indicates that they sent me letters telling me I was overdue. I have not seen these letters. None were sent certified. The HOA attorney is also a BOD member for the HOA. After recieving my dues, I was sent a letter demanding I pay the attorney fee and court filing fee in order for them to drop the lawsuit.
Is this legit? |
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MikeS6
(North Carolina)
Posts:7
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| 01/12/2008 12:01 AM |
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| It depends on the state that you reside in, in NC if the HOA sent you a letter and told you that your dues were overdue and they told you in the letter that if the HOA had to seek legal action against you and in the letter they told you that you would be responcible for the attorney fees than yes it is legit. |
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EdieL
(Virginia)
Posts:70
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| 01/12/2008 5:08 AM |
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Just my take!! If the HOA Attorney is also a BOD member, most States
would see this as a conflict of interest.
When you purchased your property the CCR's should state the time frame
for collecting dues, ie. monthly or yearly or anything in between and if
not paid how the HOA should proceed for notification to the owner and if
notification is ignored the legal action the HOA can take.
Edie
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PaulM
(Pennsylvania)
Posts:1347
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| 01/12/2008 5:17 AM |
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KF: I do not understand what the attorney fee and court filing fee is for if you paid dues, though late. Were you sent a letter noting the HOA was filing against you in court? You could probably request official court info to back up filing fees against you (check w/County). If not, they have not proven that they indeed incured these charges.
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KF
(Kansas)
Posts:8
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| 01/12/2008 8:19 AM |
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In reply to the comments.
The Bylaws clearly state that dues are to be paid quarterly. I now know that I was not paying them in a timely fasion. (although I was paying them the same way I had since my house was built and I moved in).
The demand to pay the years dues came by the county sherrif leaving a summons on my doorstep. The summons requires that I provide a written response to the claims of the HOA by a certain date later this month. When I recieved this, I promptly paid the dues. I then received a letter listing the court costs and legal fees. It demanded payment for them before the reply deadline in order for them to drop suit against me. |
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KF
(Kansas)
Posts:8
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| 01/12/2008 8:22 AM |
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Additional comments
I have talked to the BOD. I was told that they sent me letters. (none certified). I have been told that I have been sent letter relating to other neigborhood issues as well. I do not recall recieving anything from the HOA except the newsletters which were left on my porch. |
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WayneB3
(NV)
Posts:51
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| 01/12/2008 8:39 AM |
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| How much money are we talking about? |
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KF
(Kansas)
Posts:8
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| 01/12/2008 9:30 AM |
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| about $350 total |
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SusanW1
(Michigan)
Posts:2117
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| 01/12/2008 9:48 AM |
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Their mistake was not sending Certified Letters for such an important issue.
Ignorance of the law is no excuse. If you go to court, you will have to prove you did not know that it had come to this point (legal fees, etc.) but, then again, you knew you were not in compliance with the payment schedule all along.
It will cost you more than $350 to defend yourself on this one, for sure.
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PaulM
(Pennsylvania)
Posts:1347
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| 01/12/2008 1:49 PM |
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KF: Based on your text..."The summons requires that I provide a written response to the claims of the HOA by a certain date later this month." Did you follow up with the county sheriff based on their request? Did you provide proof to the county sheriff of your paid dues?
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MikeS1
Posts:0
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| 01/12/2008 1:58 PM |
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| Most states hold attorneys to a higher ethical standard than the general public, (don't laugh now). Get on line and read their ethics code! Although, the attorney may have failed to avoid an apparent conflict of interest, may not have broken any laws technically, and may have failed to at least disclose the relationship, I would get right out your state's website, then look for information on the State Bar and send them a complaint. Based on the informaton presented, this just doesn't smell right. |
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MikeS1
Posts:0
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| 01/12/2008 2:02 PM |
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Q. How can I get a copy of the ethics rules that apply to Kansas attorneys?
A. The best source is the Rules Adopted by the Supreme Court of Kansas Annotated, available from the Kansas Law Librarian, Kansas Judicial Center, 301 West 10th St., Topeka, Kansas 66612-1598. The Rules book costs $12.00 and is published annually. The Kansas Rules of Professional Conduct are found at Supreme Court Rule 226. This is the only source to locate the court decisions that refer to each rule.
Full text of the rules without annotations can also be found at /rules/default.asp.
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KF
(Kansas)
Posts:8
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| 01/12/2008 2:10 PM |
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Posted By PaulM on 01/12/2008 1:49 PM
KF: Based on your text..."The summons requires that I provide a written response to the claims of the HOA by a certain date later this month." Did you follow up with the county sheriff based on their request? Did you provide proof to the county sheriff of your paid dues?
The sheriff is acting as the process server. The lawsuit was left at my door by the sheriff. The sheriff Dept. sent me a post card in the mail indicating I had been served on the date the documents were left at my doorstep.
The paper work indicated that I neede to reply to the county court and send a copy of my reply to the HOA attorney. That date has not come up yet. |
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KF
(Kansas)
Posts:8
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| 01/12/2008 2:16 PM |
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Posted By MikeS1 on 01/12/2008 1:58 PM
Most states hold attorneys to a higher ethical standard than the general public, (don't laugh now). Get on line and read their ethics code! Although, the attorney may have failed to avoid an apparent conflict of interest, may not have broken any laws technically, and may have failed to at least disclose the relationship, I would get right out your state's website, then look for information on the State Bar and send them a complaint. Based on the informaton presented, this just doesn't smell right.
assuming that this is conflict of interest, I am not sure it is a conflict against me. It is only a conflict that effects me.
This sets up a situation where the BOD has reason to pursue a course of action (lawsuit) which personally enriches one of the BOD.
Since the BOD did not say anything to me before hand to resolve the dues and quickly jumped to a lawsuit, it seems that a decision was made which is in the best interest of the attorney, not in the interest of a friendly and harmonious neighborhood, and of course definitly not in my interest.
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PaulM
(Pennsylvania)
Posts:1347
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| 01/12/2008 2:41 PM |
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KF: I personally would do everything in my power to make this problem with the county sheriff right! If they want you to send a reply to county court, I would send it ASAP (why wait until the appointed court date???), state your position and apologize for not paying on time and in quarterly payments as your official docs dictate you must do, and send copy of your current paid dues.
The issue with the attorney on the Board is a kettle of another fish...and IMO you do not need to be involved with that at this time. You were wrong in your payment process, and now you need to own up to that. Try to smooth things out with your apology and serious intent to follow the payment process in the future.
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SusanW1
(Michigan)
Posts:2117
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| 01/12/2008 4:05 PM |
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And . . . do you know for a FACT that the attorney who is also a Board member is personally handling this case, is the attorney on record, and will be benefitting financially from this $350 lawsuit?
Sounds like a small claims issue to me, which does not allow lawyers.
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BradP
(Kansas)
Posts:1742
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| 01/14/2008 7:19 AM |
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KF:
I think Kansas is about as far behind HOA oversight as any state in the nation. Having lived here I have found very little useful information about HOA's.
A couple of things strike me on this...one you bought the house and should have read the documents so only you are to blame for not paying. Now to the argument of whether they notified you or not...you can contest it and ask for proof that they contacted you. However, I am not sure that they need to tell you they are going to sue you, especially since your documents tell you when to pay. On the other hand, they have accepted your payment at the end of the previous three years without penalty so in effect they are okaying the behavior.
If you are still reading this the question is whether it is worth it over $350. I am not so sure, I guess if I were in your position I would ask for a free consult with an attorney to get an opinion and go from there.
As for the BOD member who is serving as the HOA attorney...to me it is a conflict of interest. If you also feel that way and think there is misconduct you can contact the Kansas Bar Association and ask what to do. I would ask this question in my consult with an attorney if they felt this way also. |
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DonnaS
(Tennessee)
Posts:2792
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| 01/14/2008 7:54 AM |
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Yes ignorance of the law or rules is no excuse for not paying or whatever other infraction you may or may not be aware of. That is why when you buy into a HOA, you sign for recieveng your Documents. I also would just pay the $350.00 and call it a learning experience. It isn't like you were trying to "dupe" the association but the money oulay to prove that you were right all along, will cost more than just getting it over with. Call it a LESSON LEARND.
Many associations have Board members as hired employees but your State or individual documents will tell you if it is legal to do so. Personally, I see nothing wrong with it as long as they know what their responsibilities are as Board members. Don't forget, they have their own licenses to protect so they usually will be careful in statements and judgements. In the case of an attorney being on the Board, that can be a huge valuable assett for saving the Board and association some cash. Check with your State first. Our Master Association has 2 attorneys sitting on our Board. One is an Assistant D.A. and the other is a Financial Attorney. Needless to say, they are an awesome assett to us. |
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RobertR1
(South Carolina)
Posts:2072
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| 01/14/2008 8:38 AM |
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I certainly think the lawyer that acts a the association attorney and serves on the Board is a Conflict of interest and You have to question his motivation for putting himself in this position. But that is a different story.
I appears to me our poster has got his foot caught in the trap he himself set. It seems obvious he knew what he was supposed to do, he should have just went along with what he knew and paid the bill. I think he will just get in deeper (cost more) to go to court and rely on the fact he didn't receive some notice, therefore. he don't have to pay. Just as the Poster, and others, question the fact the lawyer is on the board, I question the Posters motivation. All this energy he is expending to resolve something that didn't have happen would be better spent doing something for the association. IMHO |
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DonnaS
(Tennessee)
Posts:2792
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| 01/14/2008 8:53 AM |
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Robert,
I am in total agreement with your second paragraph. The owner in the very end is solely responsible for whatever dilemia he has gotten himself into. He needss to pay up and move on because by dragging this out, everyone looses, Board and himself.
Now the attorney/Board member issue. Yes, I agree to a point that this could be something of a conflict. Our type of developement as many others are similar in South Florida, are full of lawyers and if we took a really good survey to find out how many Boards have lawyers on them, I think that we would all be suprised. Remember, we have all that we can do to get any members to serve on Boards, yet alone to seperate them by occupations. My experience is that lawyers seem to be interested in documents and laws and that sort of thing so many associations do take advantage of their volunteering and expertise. Still Friends? |
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BradP
(Kansas)
Posts:1742
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| 01/14/2008 9:28 AM |
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Donna:
I don't think there is anythng wrong with an attorney being on the board. I do think it gets into a gray area when he/she is the associations attorney and is on the board. |
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DonnaS
(Tennessee)
Posts:2792
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| 01/14/2008 9:43 AM |
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Exactly right Brad,
I would hope that any association hiring a Board member as their attorney has a class act membership to monitor what is going on in regards to their "Legal Dept" |
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RobertR1
(South Carolina)
Posts:2072
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| 01/14/2008 9:50 AM |
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Dear friend Donna,
I must not have explained myself very well. I welcome lawyers in our Regime, the more, the better. But I do not expect them to offer any legal advice, that is purely up to them. My problem is having one on the Board and retain him as the assosication Lawyer, paying him a retainer or any other kind of bill. I really don't think a lawyer being on the board insures all your legal problems will go away any more than having an electricn on the Board insures you are not going to have electrical problems. On this site I think I have heard about Judges being on Boards more than Lawyers. What would really be nice, if possible, would be to have a legal advisory board made of of all or some legal type homeowners.
They could make recommendations to the board about legal questions. Also the more members involved in the association, the better.
How about this idea? |
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DonnaS
(Tennessee)
Posts:2792
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| 01/14/2008 9:52 AM |
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WORKS FOR ME, BUDDY |
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KF
(Kansas)
Posts:8
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| 01/14/2008 10:58 AM |
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I thank everyone for their advice.
I have decided to pay the legal fees before the deadline.
While I think that my BOD has gone about this collections all wrong, I want to solve this in a way that allows all of us to have the ability to be neighborly.
I am now looking at this a bit differently. A BOD can make decisions which are mistakes and cost the homeowners money. This is just one of those mistakes. If they continue to make mistakes, we as homeowners can elect others to take their places.
I am not concerned about a lawyer being on the BOD. This seems like an asset to the BOD.
I am concerned about a lawyer on the BOD who is also the association attorney. This allows for the possibility that legal actions are made for the purpose of personal gain by the attorney.
I will be addressing my concerns with the BOD after the current issue is resolved. |
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BradP
(Kansas)
Posts:1742
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| 01/14/2008 11:10 AM |
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KF:
I think that is the right decision. I hope it encourages you to get involved and ask questions, hopefully you get the answers you are looking for. |
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PaulM
(Pennsylvania)
Posts:1347
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| 01/14/2008 2:59 PM |
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Kf: I am glad for you that you made a decision to 'take the high road' in
this situation.
With that being said, your concern about a lawyer on the Board who is also the association attorney is well taken. Once the bill is paid, use your energy to ask questions, to be informed, and to be an asset to your community overall.
If the attorney is doing something for personal gain, it will come out and be apparent in the not too distant future. Keep your eyes and ears open! |
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GlenL
(Ohio)
Posts:1362
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| 01/15/2008 2:45 PM |
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Posted By SusanW1 on 01/12/2008 4:05 PM
And . . . do you know for a FACT that the attorney who is also a Board member is personally handling this case, is the attorney on record, and will be benefitting financially from this $350 lawsuit?
Sounds like a small claims issue to me, which does not allow lawyers.
Susan when one of the parties is a corporation such as an HOA it does require an attorney to represent the corporation even in small claims court; at least in Ohio. We found this out the hard way when we took a homeowner to SC to get payment for damages her son had caused. |
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GlenL
(Ohio)
Posts:1362
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| 01/15/2008 3:11 PM |
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Posted By KF on 01/14/2008 10:58 AM
I thank everyone for their advice.
I have decided to pay the legal fees before the deadline.
While I think that my BOD has gone about this collections all wrong, I want to solve this in a way that allows all of us to have the ability to be neighborly.
I am now looking at this a bit differently. A BOD can make decisions which are mistakes and cost the homeowners money. This is just one of those mistakes. If they continue to make mistakes, we as homeowners can elect others to take their places.
I am not concerned about a lawyer being on the BOD. This seems like an asset to the BOD.
I am concerned about a lawyer on the BOD who is also the association attorney. This allows for the possibility that legal actions are made for the purpose of personal gain by the attorney.
I will be addressing my concerns with the BOD after the current issue is resolved.
Board mistake????? Seems to me like you're the one who made the mistake here; do you know what the Associations collection policy is? They only made a mistake if they didn't follow it. I know this seems unfair to you but when the BOD makes a budget they are expecting the money to arrive when it's scheduled and when you're late they still have to pay their obligations.
BTW. Even if you settle with the Association like you said; answer the complaint with your copy of the paid receipt and make sure you get a release of the suit from the Association and put the document in a file that you keep forever.
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KF
(Kansas)
Posts:8
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| 01/15/2008 4:11 PM |
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Posted By GlenL on 01/15/2008 3:11 PM Posted By KF on 01/14/2008 10:58 AM
. Board mistake????? Seems to me like you're the one who made the mistake here; do you know what the Associations collection policy is? They only made a mistake if they didn't follow it. I know this seems unfair to you but when the BOD makes a budget they are expecting the money to arrive when it's scheduled and when you're late they still have to pay their obligations. BTW. Even if you settle with the Association like you said; answer the complaint with your copy of the paid receipt and make sure you get a release of the suit from the Association and put the document in a file that you keep forever.
While I am partially to fault, I do fault my HOA BOD. My payment has been accepted in a similar time frame for 5 years. (Ok, now the first 4 of the 5). I fault the BOD for not notifying me properly within there own policy. I fault them for having a policy when used which does not make sure notification is made (certified letter). I fault them for not simply asking or calling me and clearing this up with minimal hastle to both them and myself. I have an expectation that my small HOA acts neighborly in an effort to build community. When it fails to do so, it makes the neighborhood a place less desireable to live. If property apreciation is the goal, this doesn't do it.
Your last suggestion I do take to heart and is in line with my intentions. |
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