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BillG6 (Florida)
Posts: 41
Posted:
Can a Homeowner residing in a HOA request from their office a complete list of members/homeowners who are delinquent as well those members/homeowners who are in current legal status??? In addition, where in FLA 720 can I find this information. Thank you!
DonnaS (Tennessee)
Posts: 5,671
Posted:

Bill,

Below is from Fl Statute 720;303, which is how you must request that information and how the association is to provide you with it. I myself do have issues with providing what you are requesting because some of this may go to litigation. Your association may feel the same way and in that case, YOU MAY NOT GET ALL OF WHAT YOU WANT TO REVIEW. The new HOA bill that Gov Crist has signed and goes into effect on July 1st, will require any document inspection by a member, be sent written by certified mail.

(5) INSPECTION AND COPYING OF RECORDS.--The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community. If the association has a photocopy machine available where the records are maintained, it must provide parcel owners with copies on request during the inspection if the entire request is limited to no more than 25 pages.

(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this subsection.

(b) A member who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request.

(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not impose a requirement that a parcel owner demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner's right to inspect records to less than one 8-hour business day per month. The association may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association may charge up to 50 cents per page for copies made on the association's photocopier. If the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside vendor and may charge the actual cost of copying. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members. Notwithstanding the provisions of this paragraph, the following records shall not be accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including, but not limited to, any record prepared by an association attorney or prepared at the attorney's express direction which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association and was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings until the conclusion of the litigation or adversarial administrative proceedings.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Disciplinary, health, insurance, and personnel records of the association's employees.

4. Medical records of parcel owners or community residents.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
I would say no, that is privileged information. I see nothing wrong in making available the number of homeowners who are delinquent or the mangnitude of the delinquencies. However, knowing who the individuals are is no one's business except for those whose responsibility it is to collect the delinquent accounts. There may even be, in some jurisdictions, privacy laws that prohibit the dissemination of such information.
ClaudiaH (Kentucky)
Posts: 27
Posted:
I disagree. We post that information on our website for all our homeowners to view if they choose. Dues go towards a collective pot to pay for services which benefit every single homeowner in the neighborhood. People who don't pay are putting a financial burden on the rest of the homeowners. They absolutely have the right to know who these folks are.

Besides that, who said delinquent payers are owed some sort of confidentiality? If anything, exposure can be used to help motivate them to pay.... as all the rest of the neighborhood has already done. If the government can report who hasn't paid their taxes, I don't see why private organizations should be any different.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Claudia,

Maybe some homeowner just hasn't yet sued your association for disclosing private information.

There are federal privacy laws and many states have even more stringent ones. It doesn't matter that your HOA believes that delinquent homeowners do not deserve any confidentiality, what matters is what the government says its citizens have a right to expect. Your HOA is not a government agency and their delinquencies are not necessarily a matter of public record.

Once you have formally filed a lien against a property, it then becomes a matter of public record and you could probably then publish those delinquencies.
GlenL (Ohio)
Posts: 5,491
Posted:
Bill our county seat has a newspaper whose primary purpose is to publish legal notices and I know there is a similar paper in the next county perhaps there is one in your county. The county website also lists everyone who has filed a lien or foreclosure and is keyword searchable, type in the name of the HOA and you can find every legal action we've taken. Or type in a street and you can find out what your neighbors are up to if you so desire.

Studies show that 5 out of 4 people have problems with fractions
SusanW1 (Michigan)
Posts: 5,202
Posted:

These delinquent funds are legally owed to the HOA - however the names of the persons owing are, IMHO, not to be released to other residents.

The homeowner DOES have the right to know what the Board is doing to collect on these outstandings. If the Board has a written policy or other guidelines to follow, then that should be given to the person inquiring.

So you may say: $10,000 is total outstanding; $5,000 in in foreclosure or lein status; $2500 is in written by attorney notice, and $2500 is in registered mail - 3rd-notice-to-the-resident stage.

I think that most folks just want to know WHAT the Board is doing about outstandings. But you can always ask this fellow why he wants the NAMES of people.

GlenL (Ohio)
Posts: 5,491
Posted:
Claudia I agree with Bruce and if you list the names I wouldn't until the lien or foreclosure was filed. As you yourself admitted in another posting mistakes can happen and I wouldn't want to paint someone who was the victim of a treasurer posting a payment to the wrong account or a simple oversight with same brush as a deadbeat.

Studies show that 5 out of 4 people have problems with fractions
ClaudiaH (Kentucky)
Posts: 27
Posted:
Interesting to note. I'll do some research and bring this up at our next meeting. Fortunately, the only one we have listed at the moment, is the same guy who I filed a lien against, so we're covered.
ClaudiaH (Kentucky)
Posts: 27
Posted:
Bruce,

I'll have to save the task of googling the heck out of privacy laws to figure out where the homeowners are protected for some other day. As it stands, our only dues outstanding are from the same person who a lien is currently filed against. But this is good information to research for future non-payers.
JohnK3 (Pennsylvania)
Posts: 967
Posted:
Our Board (including me) adopted the following informal guidelines: Any issues regarding delinquencies are handled between the Prez and the Owner. The contents of communications between the Prez and Owner are not shared with the rest of the Board, except as to status. The Board NEVER discusses these matters with other Owners, nor would we disclose any information about delinquencies unless ordered to by a court of competent jurisdiction. Membership appreciates this confidentiality, even when queries from Curious Minds are brushed off as inappropriate. The result? We currently have zero delinquencies and our most recent 2nd Q dues were virtually all paid at least a few weeks before the 30 day penalty window opened.

Treat folks with respect and sometimes they return the gesture.
PatR (Florida)
Posts: 139
Posted:
So...I am in Florida, and our next newsletter is going to list the names of those members who are in arrears, and how much they owe, and that's legal? I, for one, think that people play the game for 60 days, cause there is only the late fee charge from the association.....If everyone plays that game, we'll be broke in no time.

Pat
ClaudiaH (Kentucky)
Posts: 27
Posted:
John,

That sounds great, if it works. I don't think it would in my subdivision. What has not worked in the past, are treasurers who have allowed home owners to repeatedly bend the rules regarding paying. The board has made it clear that if anyone needs extra time, to please let one of us know and we'll be flexible. We absolutely would. But never in the almost 10 year history of this board, has one homeowner ever come forward.

In the past, numerous warnings have been given for many months, including phone calls, emails, home visits, etc. Anything to get the homeowner to comply before filing a lien.

I made it clear when I became treasurer, that late payments would be liened, no exceptions.

This year we have 1 late payment out of 100, the least this board has ever had this close to the due date.

I believe automating the process works better than holding their hands. I really don't think the chronic late payer would care if we put his name in lights. He's just not going to pay on time.

BrianB (California)
Posts: 2,820
Posted:
Quote:
Posted By ClaudiaH on 05/15/2008 10:35 AM
Bruce,

I'll have to save the task of googling the heck out of privacy laws to figure out where the homeowners are protected for some other day. As it stands, our only dues outstanding are from the same person who a lien is currently filed against. But this is good information to research for future non-payers.

I can save you some time Claudia... there are no federal laws that provide such privacy, and most states don't have laws that cover it either. While it may or may not be wise to publish such a list of names, it is generally legal to do so.
JohnK3 (Pennsylvania)
Posts: 967
Posted:
Claudia,

Yes. We have also told membership that if an Owner has a pressing issue (loss of job, family illness, reasonable mistake, whatever) that we'll do our best to accomodate them re: delinquencies and late fees, and though waivers are tough calls, we try to avoid fines to keep the natives in line. Late last year, an Owner mistakenly sent his $228 dues to the DMV, and his car registration fee of $36 to our previous MC. Nobody caught the mistake until recently. Rather than pile on fines, our Prez, to whom we gave discretion to waive late fees, simply asked Owner to submit the $192 difference and we'd forget the fines. Owner did, and happiness abounds. To paraphrase Forrest Gump: "Kindness is as kindness does."

Perfect business sense? No. Rules are rules.

Good HOA sense? I'd say yes.
MaryA1 (Arizona)
Posts: 7,043
Posted:
It should be realized that delinquencies are not public information until a lien or foreclosure is filed by the assn. But, even then, one must research this info, it isn't posted in the newspaper for everyone to read about. IMO, this information should always be regarded as priviledged by the assn. What, exactly, is the point in posting the names of delinquent members in the assn's newsletter? IMO, trying to embarrass someone into paying their delinquencies is really petty. Talk about neighborliness!
PatR (Florida)
Posts: 139
Posted:
I am not saying I would post them, just asking the legalities of the stuation. We are now $120,000 in HOA arrears.... Talk about being a good neighbor, I am paying for you to live here and enjoy all the anemities.....and all you need to do is work the system....

We will start with turning off the gate/clubhouse cards, and see how that goes.

We can't exist much longer like this. Desperate times and all that...

Pat
BrianB (California)
Posts: 2,820
Posted:
while i agree with Mary's advice about the matter, i will say that I see delinquincies posted publicly by many companies. hardly a day goes by that i can't find a publically posted list of deadbeats, thieves, etc. from some corporation or another. i am not advocating it, because like mary, i don't think it's effective and not how I want to do business, but there are no laws that state a company is forbidden from releasing information on it's own accounts to the public, let alone to its own shareholders.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Pat,

I don't how large your assn is, but with $120,000 in delinquencies it would appear to me the board needs to really take a hard look at their collection policy. How long do you wait b/4 sending a late notice; how long b/4 legal action is taken? The board may want to make some adjustments - pronto!
DonnaS (Tennessee)
Posts: 5,671
Posted:

Pat,

If you have followed all of the Statute requirements for handling delinquencies, which is the letters and then certified letters and the appropriate time has past, then you can classify these delinquent owners as "members not in good standing" therefore you have the right to close the clubhouse, pool or other amenities to them. You cannot lock them out with removing their gate ingress or egress. That could be really a bad move on your Board's part.The Statutes cover ingress and egress very clear.
ClaudiaH (Kentucky)
Posts: 27
Posted:
Mary,

Our board places an emphasis on financial transparency. We view our small neighborhood as a family of sorts, and go out of our way to keep everyone educated and informed. Honestly, most people could care less. And we don't outright publish the names of the delinquent payers. It's on our website and you'd have to look for it. It's not in our newsletter.

And I don't see the big deal. If chronic late payers don't want their names on the website, they can simply write a check. And as soon as they are current, their name will come off. Talk about neighborly, I think some homeowners often forget that their neighbors are volunteering their time and have other things to do than visit attorney or courthouses to try to get them to write one stinking check for a few hundred bucks each year.

ClaudiaH (Kentucky)
Posts: 27
Posted:
Pat,

Ya'll got some problemos!!! What does your attorney advise? I'm assuming part of your debt is due to foreclosures? Seems to be a nationwide problem. You'd better do something soon. That's a lotta money!
PatR (Florida)
Posts: 139
Posted:
Some of the debt is due to forclosures, but some members (including one BOD member), in my opinion, are playing the system, until it will go "legal".... after all, it's a $25.00 late fee, and no reporting to any collection bureaus. There really is no incentive to pay this "bill" first.

We have been not taken amenities away, but are thinking about it now.
ClaudiaH (Kentucky)
Posts: 27
Posted:
Pat,

I think I'd be asking for a vote to change your bylaws to state that Board members be removed from their position if they are not in good standing, meaning current on their dues, at all times. Our bylaws state that we can't be nominated to run for the board if we're not in good standing. What a terrible example to set. If I was a homeowner and knew someone on the Board wasn't paying their dues, I can imagine being quite upset over it.
GlenL (Ohio)
Posts: 5,491
Posted:
Pat we doubled the late fee for habitual late payers which has cut down on it tremendously. Our CC&R's also allow us to: In any case of flagrant or repeated violation by a Unit Owner, he may be required by the Association to give sufficient surety or sureties for his future compliance with said covenants, conditions, restrictions, By-Laws, Rules and Regulations.

Studies show that 5 out of 4 people have problems with fractions
PatR (Florida)
Posts: 139
Posted:
Thanks to both Claudia and Glen

I am going to look into it ...

Pat
MicheleD (Kentucky)
Posts: 4,491
Posted:
This isn't "public information" it is HOA information, including the "names" of the homeowners, available to all members of the organization. Every member has a right to know the status of all accounts.

We do not publish in a newsletter, because we don't have one anymore. Nor do we publish online because it is not restricted to members-only.

We do, however, print a list of all delinquent accounts after our second late notice has gone out (we are on an annual billing cycle), and the list includes the entire account information, the address and the name of the owner/member, and the status of the account, including balance due.

We aren't the same type of company or organization as say, the phone company, or AMEX, where the account holder is simply that to the organization, an account holder/debtor.

All our "account holders" are also MEMBERS. They are entitled to all the information of the organization.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By BrianB on 05/15/2008 11:16 AM
Posted By ClaudiaH on 05/15/2008 10:35 AM
Bruce,

I'll have to save the task of googling the heck out of privacy laws to figure out where the homeowners are protected for some other day. As it stands, our only dues outstanding are from the same person who a lien is currently filed against. But this is good information to research for future non-payers.


I can save you some time Claudia... there are no federal laws that provide such privacy, and most states don't have laws that cover it either. While it may or may not be wise to publish such a list of names, it is generally legal to do so.

Your opinion? Or fact?

Please supply a source reference. I always like to check things out to see for myself. That's how I learn.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Just curious, but how can you provide a "source reference" for something that doesn't exist?

JosephW (Michigan)
Posts: 882
Posted:
First, you can publish delinquencies to the owners - you would be publishing corporate information to the shareholders and this is accounts receivable. However, EVERY attorney I have ever talked to or has written about it strongly recommends that you do not publish the names of the delinquent owners because of the potential liability. This means not publishing their names in the newsletter, on the internet (even if you have a "member-only" area with secure log-in), or even in the minutes. They don't even want you to even use the address if you can avoid it. They would prefer only the unit ID number as indicated in the documents.

The main reasons, from the lawyer's standpoint, are timing and accuracy. Too many mistakes are made and by the time the item is actually published or posted on the internet, it may no longer be accurate, which opens the association up to a defamation charge.

The other main reason is that for every homeowner it might "shame" into paying, there will be twice as many who are now mad at you and will carry the grudge for a long time. It's not worth it.

Owners have a right to see the information, but I think they should be required to sign a document stating that information is private to the association, the owner and his or her legal counsel, power of attorney or agent. Any dissemination of the information is prohibited unless approved by the board. I would also stamp every document as "Confidential" before they were allowed to obtain a copy. I think I'm going to start another topic on this issue to see what people think.

Joe

Joseph West
Official HOATalk.com Sponsor
Community Associations Network, LLC
www.CommunityAssociations.net

*See legal notice below (end of page) or go to www.hoatalk.com/legal
BrianB (California)
Posts: 2,820
Posted:
thanks michele...

basically, my "source" is the Code of Federal Regulations... peruse it and you will find that there are no federal privacy laws pertaining to the release of information of this type to shareholders within a corporation...
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By MicheleD on 05/15/2008 1:24 PM
Just curious, but how can you provide a "source reference" for something that doesn't exist?


You can provide a source reference by a recognized authority that states that someting doesn't exist. Otherwise, if I claim that something does not exist, that is only my opinion. It may still exist, I just may not be aware of it.
PatR (Florida)
Posts: 139
Posted:
So Joe...

See are thinking of sending out a newsletter letting people know that since the economy is so bad, the BOD is taking the following measures to save money, short of cutting services:

Turning off the pool heater
Putting timers on lights
Using energy efficiant bulbs
whatever

We can also let members know that the organization is currently in arrears for XX amount of dollors due to foreclosures and nonpayment of dues. If they are members of this organization, and therefore privy to the info, they can ask to see the list of names and amounts due.

We do give a financial report at the monthly meetings, but we will reach about 180 more people with email.

Please give me any ideas and suggestions or corrections you all might have...

Thanks

Pat
BrianB (California)
Posts: 2,820
Posted:
well, let's see bruce..
The Federal privacy act of 1974 doesn't cover this. Nor do any subsequent acts or regulations built upon it.
The credit reporting act doesn't apply, nor does the CHild protection/privacy act (online privacy act). Neither does the Gramm-Leach-Bliley Act. US Code 552a doesn't apply either. Neither does the Family Educational RIghts and privacy act. Nor does the Compilation of State and Federal Privacy Laws mention anything about HOAs or business/corporation privacy. HIPPA doesn't apply either.

However, if you know of a law that does apply, please let me know so i can add that to my database/research on the subject.

MaryA1 (Arizona)
Posts: 7,043
Posted:
IAW the AZ HOA Open Meeting Law, discussion of ". . . personal, health or financial information about an individual member of the association. . ." is one of the causes for a closed session. As I stated b/4, it's my personal opinion this information should not be publicized by the assn. If and when a lien is filed or a foreclosure is entered into, only then does it become public information. As another poster noted, the assn's info may not even be accurate. I've heard of many cases where the assn said a member was delinquent when in fact they were not. When I was Treas. I had sent a late notice to a member and it turned out that the check had been lost in the mail so the member wasn't delinquent after all. IMO, it's just not a good idea!
PatR (Florida)
Posts: 139
Posted:
oh boy.... If the check is "lost in the mail", it was not paid...If it's the first time, then, you waive the fees and move on. We are seeing new names on the list, which is a sign that more and more people are in finincial trouble.
But... we have those who are telling us if they sell that house, then they will pay. Well tell the electric and water co. that. We can't pay the bills on couda shouds whouda...

We need to find a way to tell people that this is not a frivolous bill...We can't run the association, unless you pay your dues.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By BrianB on 05/15/2008 6:11 PM
well, let's see bruce..
The Federal privacy act of 1974 doesn't cover this. Nor do any subsequent acts or regulations built upon it.
The credit reporting act doesn't apply, nor does the CHild protection/privacy act (online privacy act). Neither does the Gramm-Leach-Bliley Act. US Code 552a doesn't apply either. Neither does the Family Educational RIghts and privacy act. Nor does the Compilation of State and Federal Privacy Laws mention anything about HOAs or business/corporation privacy. HIPPA doesn't apply either.

However, if you know of a law that does apply, please let me know so i can add that to my database/research on the subject.


Brian,

First I must complement you on the thoroughness of your research. As I said, I feel I learn more with a healthy discussion that includes references.

Although you present some very compelling arguments, I am still not entirely convinced that some of the laws you mentioned do not apply. The Fair Debt Collection Practices Act does prohibit certain acts:

[Section 806(3) prohibits the "publication of a list of consumers who allegedly refuse to pay debts," except to report the items to a "consumer reporting agency," as defined in the Fair Credit Reporting Act or to a party otherwise authorized to receive it under that Act.
Section 806(4) prohibits the "advertisement for sale of any debt to coerce payment of the debt."
1. Shaming prohibited. These provisions are designed to prohibit debt collectors from "shaming" a customer into payment, by publicizing the debt.]

The above taken from: http://www.ftc.gov/os/statutes/fdcpa/commentary.shtm#806

I also do not necessarily agree that the Gramm-Leach-Bliley Act does not apply.

With respect to the FDCPA, HOAs are not specifically mentioned in the definitions as being regarded as either a creditor or a debt collector. Thus, I can accept as an understandable argument that the FDCPA doesn't apply. However, neither are they excluded. In my opinion, the fact that an entity is not mentioned in the definition is not always a sufficient basis to say that the law doesn't apply. I find it hard to believe that lawmakers can think of every conceivable entity or possible application when laws are drafted. I believe those are matters that remain for the courts to decide.

As you know, our legal system is based on English common law, and lawyers cite prior case decisions when presenting their arguments to the court. I am not aware of any court cases involving alleged violations of the FDCPA (specifically, Section 806 (3))by HOAs. Perhaps you have heard of some. I can only say that a law prohibiting the publication of debt information and the shaming of debtors exits; whether or not it applys to HOAs is a matter yet to be decided, but I hold that, until it is, the possibility is there.

As for the publication of a list of delinquent accounts by some corporations, I would need to know more about the circumstances. The lists could include the names of corporations, which do not have the same protections as individuals, and they could include the names of individuals where the delinquent status of the account is already a matter of public record. The lists could include other individuals as well, but I don't believe the two instances I just mentioned would be a violation of any law. There may be others.

JosephW (Michigan)
Posts: 882
Posted:
I've periodically done a seminar on "Communications for Associations" and one of the things I tend to get worked up about is that among the many poor messages sent to owners from the board, the budget package is usually among the worst. In the current economic problems, the budget is probably the single most important communication that will be sent this year. (Pat, the items below would apply to what you want to do also).

Standard budget package consists of a cover letter that basically says we did our best to keep the assessments from going up too much….please don’t hurt us, we have to pay them too. Attached is a spreadsheet that has only one number that everyone looks at and that’s the total. Most owners can’t divide that by the number of units, months and then apply their unit’s percentage value, so their first reaction is to feel like they have to pay the lion’s share of that outrageous number. Stop doing this.

Your budget should tell a story. A story about why the owner made a great decision in choosing to live in your community. And it was a great decision.

Tell them about the volume savings on items like lawn care, snow removal, roofs, roads, etc. Show them how cheap it is to have the grass cut (don't say you're spending $20,000 for a lawn contract, but that they're only paying $8 per cutting). Tell them how wonderful it is that someone else takes care of checking things out, then finding contractors, then watching them, then checking their work…..all things they would have to do themselves if they lived in a single family home. But they didn’t want to do those things anymore so you’ve arranged to take care of them. What a bunch of great people you are (and the manager too, of course).

Put the numbers in the middle of paragraphs that explain them and explain in a way that means something to them. Don’t say you’re going to spend $200,000 on roofs, tell them you’re putting a new roof on their home, without them having to do anything, for about $X,000, a fantastic savings over the normal roofing price.

You have a problem in your budget this year that caused a major increase. Go after it right up front. Tell them the problem, what you’re going to do to resolve it and why it’s a good thing. This year, with unit's not paying their assessments and others having to make it up, point out what would happen if nobody did anything. Their house value would probably fall further with no one keeping things up. Tell them what you're doing to protect their interest and invite them to meet with you to discuss ways the association as a group can work to cut costs in trying economic times.

Use photographs to make your points. A picture is worth a thousand words so use that digital camera that you’ve been trying to figure out.

Do you send out payment coupons or monthly/quarterly statements? Why not include some coupons from local stores, restaurants or services. "We're trying to help save you a little money". (Also, the companies may help pay for the mailing)

Use "We" when writing to remind them that board members are also owners, not some disembodied group elected to make their lives harder. You're all in it together.

Again, reinforce their decision to live there as a good decision. Keep the message positive, even if the news isn't.

Joe

Joseph West
Official HOATalk.com Sponsor
Community Associations Network, LLC
www.CommunityAssociations.net

*See legal notice below (end of page) or go to www.hoatalk.com/legal
PatR (Florida)
Posts: 139
Posted:
Thanks so much Joe, I am going to send your suggestions to the rest of the BOD.

Keep it coming folks!

Pat
BrianB (California)
Posts: 2,820
Posted:
Bruce: you raise some points, here's my rebuttal/reasonings:

The fair credit reporting act exempts communication of ...information among persons related by common
ownership or affiliated by corporate control; or 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... So even if the law might apply (which i do not believe it does), there is an exemption automatically granted for intercompany information.

The fair debt collection act has a scope limited to third party collectors of debts. So unless your HOA is running a sideline business of collecting unpaid debts for other parties, these laws don't apply either.

Gramm-Leach-Bliley applies to financial institutions. Again, unless your HOA is selling financial services, making mortgages or loans, offering finacial advice for money, etc., these provisions do not apply.

In general, most privacy laws cover information sharing between companies, not inside a company, the HOA's first line of defense. Even if the HOA publishes the information in a public venue (which i have repeatedly said may not be a wise choice), in general there is little to prevent the publication of TRUTH by a company about criminals/thieves/deadbeats who have stolen from them. Granted, the practice can bite the HOA in the butt (truth can be a hard line to follow, and there are legal risks if the HOA makes even a tiny mistake), but it can be done. Libel/Slander laws are probably more applicable to these cases.

I agree with you Bruce that courts can interpret as they wish: I once had a judge tell me ON RECORD "I don't care what the law says, in my court, I decide". However, for this argument, i am playing "strict constitutionalist", and argueing from the side that when the legislators write the laws, they do so with knowledge and expertise (i know, a false hope). If they had INTENDED to make something illegal, they would have when writing it. Thus, the law stands as written, until we have exact intent of the lawmakers to prove different.

And for Mary, you are correct: AZ law says that homeowners financial discussions can be reason for a closed session. However, the law does not REQUIRE that the session be closed for such discussions, just that it can be. HOA's are legally allowed by that law to discuss HO's personal financial matters in open session, should they wish. If the legislature wanted otherwise, they could have written "must be" rather than "can" into the legislation.

JosephW (Michigan)
Posts: 882
Posted:
Bruce, Brian

From a Q&A regarding assessment collections:

"FDCPA provides a specific exemption for any creditor attempting to collect its own debts. This exemption would apply to any association collecting on assessments due by its members, and would permit the association to publish the names of delinquent members in its newsletter.

Take extreme care in doing this, however. Make sure the information you publish is limited to members against whom liens or lawsuits have been filed that are a matter of public record. Do not specify the amount owed by any delinquent member. And, indicate clearly that the member was delinquent as of the date of publication, or on some set date prior to publication.

As a final note, it is important to point out that there are conflicting court decisions from jurisdictions around the country regarding the role of association attorneys and managers in the debt-collection process. Some decisions have found that, although an association could be exempted, its attorney or manager might be included in the definition of debt collector"

Here are some of the cases contributing to the mess:

Minnesota: Cohen v. Beachside Two - I Homeowners Association The article can be found here:
http://www.hjlawfirm.com/newsroom/viewarticle.php?id=306&topicid=24&packageid=7

The Cohen case involved a community association Board that printed in its Board minutes information related to unpaid assessments by an unidentified unit owner. Based partly on the actions of the Board, a unit owner commenced a lawsuit alleging various tort claims against the association. In the court action, the unit owner alleged that the Board's distribution of Board minutes gave rise to defamation, negligent infliction of emotional distress, and invasion of privacy, among various other claims. The Court ultimately ruled in favor of the association and dismissed the claims, but only after the case spent a substantial amount of time in litigation. The Court's decision provides an opportunity for associations to review the law in this area, as well as their own collection policies and procedures.

Davis Lake Community Association, Inc. v. Feldmann, No. COA99-639, N.C. App. Ct., June 6, 2000.
A North Carolina appeals court determined that a community association's attempt to collect delinquent assessments constitutes unfair debt collection.

but:
Reid v. Ayers, No. COA99-790, North Carolina App. Ct, No. COA99-790, June 6, 2000
Although the provisions of the North Carolina Debt Collection Act appear to apply to an attorney's efforts to collect past due assessments, attorneys are exempt from the application of the Act.

Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361 (M.D. Fla. 2002)
Maintenance assessments constitute a debt because they create a payment obligation. Furthermore, the use of false representation and deceptive measures to collect debts violates the Fair Debt Collection Practices Act.

Dikun v. Streich, 369 F. Supp. 2d 781, E. Dist. Va. 2005
A law firm potentially violated the Fair Debt Collection Practices Act by not verifying a debt, failing to cease collection when notified that the owner was disputing the debt, communicating directly with the owner instead of with her counsel, and falsely representing the compensation it could be paid.

Edstrom v. All Services and Processing, No. CO4-1514 BZ, U.S. Dist. Ct., N. Dist. Cal., Feb. 22, 2005
A notice sent on behalf of a California homeowner association to collect past-due assessments, interest, and collection fees violated state and federal fair debt collection practices acts.

Meisner v. Alexander, No. 91DA5078-AV, Oakland County Circuit Court, Dec. 20,1991
Court rules that Fair Debt Collection Practices Act does not apply to collection of a condominium association's special assessment. In an appeal from a lawsuit alleging that the attorney for Wabeek Oaks Association ("association") violated the Fair Debt Collection Practices Act ("Act") in attempting to collect a disputed special assessment, a Michigan circuit court, acting as an appellate court, ruled that the act did not apply because the assessment was not a debt within the meaning of the Act.

Vosatka v. Wolin-Levin, Inc., Case No.94-C-4129, U.S.D.C., N.D. Ill., July 29, 1995
Letters notifying a condominium unit owner that he had failed to pay assessments and related fines and fees are not required to comply with the disclosure and validation notice requirements of the Fair Debt Collection Practices Act.

and so on -

Joe

Joseph West
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Community Associations Network, LLC
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BruceF1 (Connecticut)
Posts: 2,535
Posted:
Joe,

Thank you for your very enlightening post. It's not surprising to read that there are conflicting court decisions. I think this shows how easily there can be differing opinions when it comes to the applicability of some laws.

When it comes to matters such as this, I tend to be cautious and tread on the more likely safe side. Otherwise, one runs the risk of costly litigation with an uncertain outcome; probably not worth the amount to be collected.
BrianB (California)
Posts: 2,820
Posted:
Good points Joe, and wise advice Bruce: the risk of litigation is always present (see my comments on libel/slander).

Joe, you are very correct in that an association made of volunteer board members can do things that a professional (lawyer/property manager) cannot. The laws change dramatically once you bring in a third party. For example, as a president, i could call a member at home after 9 pm and ask abotu his debt to the HOA. my management company could not. Once you start collecting debt for someone ELSE (a PM, Lawyer, etc.), you fall into many of the laws we just discussed.
BradP (Kansas)
Posts: 2,640
Posted:
Interesting discussion, I don't have the time and not the desire right now to do any research. However, back to the original question if I as a member of my association wanted to see names of those people who are deliquent and presented my records request am I legally entitled to that information? I believe the answer is yes, as a shareholder in my community I believe I am entitled to that if I ask.

I am one of the staunchest supporters of never posting or printing delinquent dues information even in just community owned newsletters or websites.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Brad,

Interesting question.

From the discussion I would say that the board could legally disclose that information to you. However, the board might feel that, although such disclosure is legal, it may not be advisable to do so because of possible liability issues that could arise. So, I guess the question remains, if they refuse to provide you with that information, would you have a legal right to demand it? Perhaps you would, but, I think it's anybody's guess, in light of some of the court decisions posted, how it would ultimately turn out.

One question I would ask is, what do you intend to do if the board supplied you with that information?
DonnaS (Tennessee)
Posts: 5,671
Posted:

Brad, Bruce and every other poster.

This really is a quandry. The Florida Statutes say that any member has the right to inspect ANY AND ALL association records EXCEPT pending or any ongoing litigation.(there is more to this) Now here is where it cannot be a simple yes or no answer as to the inspection of these records. Would or are any of the delinquencies or forclosures going to be acted legally upon? Probably yes, therfore they would not be open to inspection by the membership.I have issue with members who want to know some of this information anyhow. Why do they feel the need to know this and when they find out, what will they do with the names of delinquencies? I think that the membership has the right to know what amount is not being paid as a whole but to have individual members names and amounts, still has me worried.
BradP (Kansas)
Posts: 2,640
Posted:
Bruce:

that would be my question to, what is the intended use of that information. I think a waiver would need to be supplied to the person stating this is confidential information to the HOA and any dissemination is strictly prohibited. I can't see anyone ever suing to get those records, but I guess anything is possible.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Donna,

In answer to another thread, I happened to review a bill that was before the Connecticut legislature regarding HOAs this year. The bill did not pass.

However, an interesting point. The bill did contain a prohibition on releasing the administrative and financial details regarding any unit to anyone other than the unit owner. So, had the bill passed, the board would have been prohibited from providing a unit owner with a list of delinquent accounts.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Bruce,
Too bad that did not pass because I still have concerns about privacy issues to some degree. The big deal to me is what are the intentions of the person making the request. Yes, to a point, every member should know that there are arrears in dues and assessments but until it does become public record, I feel that my neighbors should not know that I am having a financial problem. Now if this is just a slacker who continuelly just ignores their financial responsibilities to the association, then I might feel different.

So what really are his intentions to know all of the delinquencies? Unless he is a Board member or the Treasurer, I see no genuine need for this information other than noseiness.
MaryA1 (Arizona)
Posts: 7,043
Posted:
I'm with Donna on this one. AZ has a similar law but it goes one step further in covering financial records of members. However the AZ law says this info "may" be withheld. So, if the board wants to provide it to a member they can, but I doubt any board would, that is if they listen to the advice of their attorney.

But, as Donna said, why would a member want this info? Some people are just nosy by nature and think they should know everything. I say they don't have a need to know. The number of delinquencies and the amount is all the members need to know. There is absolutely no reason they have to know the names of the members who are delinquent. Someone, please, prove me wrong!!!

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