LornaR
(Ohio)
Posts:28
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| 05/27/2007 8:28 PM |
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| Our HoA has a web-site that anyone can go to and it has a list of the members that are past due on their dues and the amount they owe, needless to say many home owners feel this is in violation of their privacy. Is this legal? We are incorporated. |
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JohnC10
(Arizona)
Posts:106
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| 05/28/2007 1:01 AM |
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| I've been told by homeowners in some newer hoas that they have it as a condition in their original CC&Rs that the names of delinquent owners be published. Supposedly humilitation is an effective collection tool. |
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KevinK5
Posts:0
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| 05/28/2007 3:34 AM |
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I believe most states have anti-harassment laws concerning debt collection. I recommend strongly against doing this. I know the county does this with taxes, but from what I have been told, an HOA should not do it.
Also make sure you have good legal advice before you post any information that could be considered personal on the Internet.
Kevin
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MelissaP1
(Alabama)
Posts:2207
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| 05/28/2007 8:29 AM |
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I would highly recommend NOT posting this information. The collections information is for BOARD MEMBERS ONLY. The individual person may request information about their account but no one elses. The board members should also NEVER refer to the people who owe money by their names. It should be lot number or address.
There are many reasons why people are behind in their dues. Some are very personal and sensitive. This information should be treated as such. Plus, letting people know how much someone is behind can cause some kind of "vigilantism". Especially if the 2 neighbors don't like eachother. Collecting dues has to be done as a group effort and not as an individual. Hence, why HOA's are allowed to lien/foreclose. |
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Former HOA President |
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HaroldS1
(Arizona)
Posts:314
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| 05/28/2007 8:41 AM |
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Even if your CC&Rs allow this, Federal law over rides it. Section 804 (2) of the Fair Debt Collection Act states that telling a third party that you owe a debt is illegal.
Actually, you can write anything in CC&Rs, but if it conflicts with city, county, state or federal law, it cannot be enforced. Harold |
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JohnC10
(Arizona)
Posts:106
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| 05/28/2007 12:10 PM |
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Posted By HaroldS1 on 05/28/2007 8:41 AM
Even if your CC&Rs allow this, Federal law over rides it. Section 804 (2) of the Fair Debt Collection Act states that telling a third party that you owe a debt is illegal.
Actually, you can write anything in CC&Rs, but if it conflicts with city, county, state or federal law, it cannot be enforced. Harold
From my experience CC&Rs are written by attorneys for developers. That leads me to believe a strong possibility exists that there is some exclusion in the law that allows HOAs to report outstanding dept to the membership. Could that exclusion at least begin with USC §1681a.(2)(ii) & (iii)?
http://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00001681---a000-.html
I would check with an attorney before publishing a list but as an equal share holder I believe I have a right to know who is and isn't paying. |
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HaroldS1
(Arizona)
Posts:314
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| 05/28/2007 2:27 PM |
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John - there are even exclusions there too:
(2) Exclusions.— Except as provided in paragraph (3), the term “consumer report” does not include—
(A) subject to section 1681s–3 of this title, any—
(i) report containing information solely as to transactions or experiences between the consumer and the person making the report;
(ii) communication of that information among persons related by common ownership or affiliated by corporate control; or
(iii) communication of other information among persons related by common ownership or affiliated by corporate control, if it is clearly and conspicuously disclosed to the consumer that the information may be communicated among such persons and the consumer is given the opportunity, before the time that the information is initially communicated, to direct that such information not be communicated among such persons;
Notice 2 A. iii requires giving the individual the opportunity to refuse information be given out.
I don't believe even by signing and accepting the CC&Rs as written makes them infallible or superior to city, county, state or federal law. Just because an attorney wrote the CC&Rs, doesn't mean they are God or legally correct. Harold |
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BradD2
(Florida)
Posts:418
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| 05/28/2007 6:20 PM |
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This matter was decided by one of the state supreme courts already. The case revolved around someone who did not pay their assessments and was going to be sent to collections. As it required a board vote the address and name were in the meeting minutes. The meeting minutes were posted on the members only portion of the website.
The court found that members of an association are permitted to know the business of the association. As payment details are part of that it was acceptable. However, if it had been posted in the public portion of the website or any area that did not require a login then it would have been illegal. The legal reviews that I read of this court case are the basis for our not reporting the name or address of members in collections. |
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BradP
(Kansas)
Posts:2491
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| 05/29/2007 7:17 AM |
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Up until there is a lien on the home I would highly recommend not doing it. My question is why would you? To speed collections? This will have the reverse effect as it will tick off the person and create more animosity between them and the HOA. Plus, why are they delinquent? Did the breadwinner in the family die and now they are having trouble making ends meat? The news media would love that if your published it and the homeowner went to them. Be careful, you may end up digging your own grave.
IMO collections are private matters and are of no concern to the whole neighborhood. All my association needs to know is our policy and we are doing everything we can to enforce it. |
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JM2
(Oregon)
Posts:439
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| 05/29/2007 8:54 AM |
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Hi Lorna:
I would think that this might qualify for the list of the 10 worst things an association could do. Federal debt collection laws aside, the HOA is setting itself up for a lawsuit. I don't think this qualifies for the board fulfilling their "fiduciary duty."
In Oregon, with our open meeting laws, one of the reasons an HOA board can go into executive session is to discuss the issue of owners with past due assessments. The board can discuss things there - privately - and then vote in open meeting - but I would advise the board to do so anonymously.
J. Patrick Moore, CMCA |
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JohnC10
(Arizona)
Posts:106
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| 05/29/2007 8:55 AM |
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| I never much cared for the big brother mentality. Full transparency is the way to go, the HOA belongs to all members not just the board. Once the information is out what's to prevent a good samaritan(s) from stepping forward and helping out? I certainly wouldn't be expecting the board to be the moral compass for the community. |
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HaroldS1
(Arizona)
Posts:314
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| 05/29/2007 10:51 AM |
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| Very interesting Brady. Can you cite the state and court that made that ruling? Was it appealed? I am very interested in this. Harold |
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BradD2
(Florida)
Posts:418
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| 05/29/2007 11:02 AM |
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| I think it was Missouri. I found it while doing web searchs on the Fair Debt Collection Act. It has been about 4 months since I read the legal review and comments about it. |
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BradP
(Kansas)
Posts:2491
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| 05/29/2007 4:02 PM |
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John:
Just a school for thought, what if I am delinquent on my dues and it is posted by the association on a website or newsletter. Lets say good samaritan John Q. Public decides he doesn't like that I am late and now decides to harass me to get me paid, making me feel uncomfortable in my home. Lets say this escalates into an altercation and someone gets hurt?
It is the boards job to collect, good samaritans are nice to have if you have a flat tire in the middle of nowhere or having a heart attack in an airport, but not to collect dues. Too many things can go wrong. |
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JohnC10
(Arizona)
Posts:106
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| 05/29/2007 8:13 PM |
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| Of course the other school of thought is that some neighborly financial assistance from good samaritan JQ Public wouldn't be likely had he not known about your predicament. |
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BradP
(Kansas)
Posts:2491
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| 05/29/2007 8:35 PM |
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| good point, but how many of us are going to give money to our neighbor to pay dues beacuse they were too lazy? Unless you know the reason it is hard to help and most of us are too proud to ask for help. |
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JohnC10
(Arizona)
Posts:106
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| 05/29/2007 8:51 PM |
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Well if one is too lazy maybe they need a kick in the rump by having their name published. If I knew one of my neighbors was having a legitamite financial hardship and could lose their home I'd help out. I suppose people are often too proud to ask for help but at least if they are offered they have an opportunity to set pride aside.
There are good and bad points on both sides of the arguement by I side with maximum transparency. |
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Jadedone4
(Virginia)
Posts:495
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| 05/30/2007 4:31 AM |
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I can understand both "sides of the coin" here. However, it is my belief that delinquent owner's personal information should NEVER be published, and should be "eyes only" between the MC and the Board. This is not an issue of "transperancy" as the membership ELECTS the Board to act on its behalf in matters which involve the HOA. Linking deliquent accounts to the requirements of "open meeting" laws and "transperancy" is wrought for abuse. There is no useful purpose achieved by posting deliquent owner's information in a public domain. If the HOA has in place the proper systems to address delinquent accounts (enforcement, collection legal staff, lien, etc) then there is no need to place information like this in the public domain, until it is there by virtue of the legal actions undertaken.
We do "assign" some personal rights away by agreeing to live in a "managed community" but I think that any member of any HOA, would be hard pressed to find a "clause" drafted into governing documents which would allow the posting of delinquent accouts in a public forum. |
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BradP
(Kansas)
Posts:2491
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| 05/30/2007 6:13 AM |
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John:
I can see both sides too, however, as Jadedone said I don't see any good that can come out of it. The way I look at it is there are too many bad things that can happen compared to the good, it isn't worth it.
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RogerB
(Colorado)
Posts:4686
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| 05/30/2007 6:51 AM |
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| Making public names of owners of properites which are delinquent is a NO NO. And while some may think shamming will get them to pay, it usually produces just the opposite effect. There are much more effective methods of collecting delinquent accounts. This subject has been discussed before on this board in case you want to view other opinions. |
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JohnC10
(Arizona)
Posts:106
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| 05/30/2007 8:38 AM |
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| I see no need to post in public as its none of the public's concern. Although it is a concern of the membership and taking the board's word that they are doing everything they can is simply not good enough. Especially when they don't make headway. There needs to be checks and balances and reporting delinquencies where permitted by the documents and law of the land is a good one. |
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HaroldS1
(Arizona)
Posts:314
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| 05/30/2007 9:21 AM |
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| Roger, I am still tring to find the Missouri case Brady cited allowing MEMBERS (not the general public) the right to know which members are delinquent. If this has not been overturned on appeal, it would be important case law that would affect every HOA. Harold |
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GloriaM
(North Carolina)
Posts:829
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| 05/30/2007 10:15 PM |
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| Of course state law and governing documents would apply, however the public does not have the right to know, but membership could view the delinquencies. I agree with Roger there are better ways of collecting the monies. But legally this question has been raised here in NC and our attorney did advise that membership did have the right to know who is delinquent. |
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BradD2
(Florida)
Posts:418
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| 05/31/2007 8:25 AM |
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| Harold, I think it was Missouri but it has been a few months. A few nieghboring Associations post the names at the community mailboxes. I found a bunch of court cases that judged the Association Dues as a debt and therefore subject to the Fair Debt Collections Act. I was suprised when I came across the legal review of the case on the website for an Association law firm. |
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HaroldS1
(Arizona)
Posts:314
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| 05/31/2007 10:01 AM |
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| That's interesting too that there is case law afirming that HOA assessment dues are debt and subject to the Fair Debt Collection Practices Act. Harold |
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BradD2
(Florida)
Posts:418
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| 05/31/2007 11:28 AM |
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| I found 10 or more stating that. Do a google search for "homeowner association fair debt collection court case" and you will find plenty. |
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LornaR
(Ohio)
Posts:28
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| 05/31/2007 2:06 PM |
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| the problem here is it is posted on a public web-site for the whole world to see and I have spoken to the Trustee that posted this information I see it as wrong. The people's name address and how much they owe, and it is not in the deed restrictions, The home owner's are angry and said they will will be filing a complaint, the list was also mailed out to every HO in the neighborhood, So can the Ho's file suit against the Association or can they file a complaint against the Trustee? This is a mess |
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HaroldS1
(Arizona)
Posts:314
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| 05/31/2007 4:29 PM |
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I would say talk to an attorney. Or contact the Federal Trade Commission who oversees the Federal Fair Debt Collections practices act to find out how to lodge a complaint. I would imagine it would have to be done by someone who was affected by this disclosure.
It would seem the trustee violated his fiduciary duty, not to mention the Federal Debt collection act by disclosing this information to the general public. I doubt even his HOA board insurance would cover him for doing this, so you would not be suing the HOA (yourself) but the person. I know these boards are volunteers, but there has to be responsibility for actions taken. Harold |
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BradD2
(Florida)
Posts:418
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| 06/01/2007 6:33 AM |
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| Lorna, being posted on a public website is against the Fair Debt Collection Act. Perform a search as I have previously posted the location of it and the wording. I believe the Association can be sued for doing that. |
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JackT1
Posts:0
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| 06/02/2007 1:49 PM |
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| Does a "personal" reason for being behind release them from the debt? I owned some houses I rented and they all had "reasons" to not pay. I had to serve eviction notices to get them out, during this time I was making house payments on the house they were in. The bank would have foreclosed on me and I doubt that a "personal" reason would have prevented a foreclosure. Where did these people all come from? When you ask the President what is being done to collect past due fees (if there is any), and get a snide answer, what then? |
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