Homeowner Request of Delinquent/Legal Status Members

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!

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.

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.

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.

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.

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.

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.

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.

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

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!

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.

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.

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.

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.

Just curious, but how can you provide a "source reference" for something that doesn't exist?

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...

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

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!

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.

Thanks so much Joe, I am going to send your suggestions to the rest of the BOD.

Keep it coming folks!

Pat

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

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.

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?

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.

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.