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PedroC

Posts:0

12/20/2006 7:25 AM
Would posting delinquent homeowners on a private (username and password require) section of our website present any legal issues?

WilliamT
(Arizona)

Posts:489

12/20/2006 7:32 AM
Yes ---- you should never disclose any financial information about a homeowner. Only discuss financial information about a homeowner in executive session, never in an open meeting.

BradP
(Kansas)

Posts:1742

12/20/2006 7:40 AM
Pedro: I personally think that is counterproductive and only serves the purpose to embarrass, humilate and cause bad feelings. You also have to think that if you make a mistake and post someone who really isn't delinquent what that does. I don't see this as a positive solution.

CharlesW1
(Georgia)

Posts:821

12/20/2006 7:55 AM
PedroC, It appears you have already gotten the advice that I once got on this same subject. I didn’t know what else to do, I figured (as someone else had mentioned) I figured it would embarrass them. Yes, it probably would but………. Really that isn’t your job as a board member and you should devote all that energy into collecting the delinquent assessments. This discussion forum is full of previously written posts, suggestions and advice pertaining too delinquent HOA assessment. Use the search box in the right hand corner of the page for help in finding them. I will continue looking myself and will post what I find for you. Best of luck Chuck W.

Charles E. Wafer Jr.

CharlesW1
(Georgia)

Posts:821

12/20/2006 8:00 AM
Read this one it's rather long, but the advice I had been given was very good. (I need your suggestion and advice) copy and paste this into the search box above. Chuck W.

Charles E. Wafer Jr.

CharlesW1
(Georgia)

Posts:821

12/20/2006 8:07 AM
PedroC, Here is another previously discussion that will help you as it has helped me. (What are all of the steps to take to collect dues?) Copy and paste this into the search box above. Good luck Chuck W.

Charles E. Wafer Jr.

HaroldS
(Arizona)

Posts:904

12/20/2006 8:31 AM
It always amazes me that some HOAs even think they have the right to post financial information about their members, especially to the rest of the neighbors. You have plenty of legal methods to collect your delinquent assessments. Forget shaming them. It behooves board members to get some training for the job they volunteered for. Our city has classes every year, but very few bother to take them. Harold

PedroC

Posts:0

12/20/2006 9:51 AM
Harold, The Idea is not that they will necessarily be embarrassed; it's more a way to put a little more peer pressure. Additionally, the actual amounts would not be posted, just the homeowner's name and property. This information will only be available to homeowners through the password protected section of our site. We already go through the legal remedies and they are expensive and have not yielded much success in the sense that they are a long term action as far as liens are concerned. We have also try going through small claims and we often do not get the legal fees in the judgment. As BOD members we owe it to the rest of the community to do as much as possible to collect all the money which is due to the association. It is also unfair to those who follow the rules, that violators are not carrying their fair share. Pedro.

PedroC

Posts:0

12/20/2006 9:52 AM
Chuck, Thanks for the search tips. Pedro.

WilliamT
(Arizona)

Posts:489

12/20/2006 10:11 AM
Pedro, You are going about this the wrong way. When a homeowner is delinquent in assessment, it is between the Board and the Homeowner. It is not the business of the other homeowners, and "peer" pressure should not be even considered. If you post the name of a delinquent homewner for the rest of the homeowners to see, you are probably violating the law in your state, and inviting legal action. My suggestions: 1. Follow your state laws, your CC&R's, and Rules regarding assessment collection. 2. Contact an HOA attorney if you're unsure. 3. Do not disclose any names of delinquent people or their amounts due. 4. Only discuss delinquencies in executive "closed" session. 5. Don't keep looking for the answer you want to hear. Heed the advice of others on this forum. 6. Re-read 1 through 5.

PedroC

Posts:0

12/20/2006 11:33 AM
William, Thank you for your advice. However, I'm not looking for any particular answer. I'm looking for the rationale in the opinions more than anything. Comments on your comments: 1. There are no state laws that prohibit such an activity; CC&Rs do not provide specific course of actions that can be taken for collection of arrears 2. We have contacted our HOA attorney and they have advice that we can in fact post the names of delinquent homeowners, although they did not recommend it. They have had other communities which have taken such an action. If we choose to take this action, they recommended that we create a threshold, above which the action would be taken, so that it is not arbitrary. 3. Opinion stated as law. 4. Delinquencies impact the entire community and are thereby relevant to all. 5. Seeking people's opinions does not constitute an action and opinions are just opinions. Judge Not Lest Ye Be Judged! and Let He Who is Without Sin Cast the First Stone ... 6. Re-read 5 No offense, I just don't need the lecture. I'm trying to be fair and just to all and I'm looking for the opinions of peers on the subject so that we can make the best decision. Thanks, Pedro.

GlenL
(Ohio)

Posts:1468

12/20/2006 12:14 PM
Pedro, I understand your frustration with delinquent homeowners, the threshold to post the names I would use - I would only do it after a lien is filed (that's public information anyway). Looking at old newsletters our Association used to print the names of delinquent homeowners when the developer was in charge. We do not, however I remind everyone that the information is available on the county court's web site. I do not know if the "public humiliation" will provide the results you are looking for. Some people get in trouble and do their best to do the right thing; these people would be hurt by the posting. Others are dead beats who IMHO would look at it as a badge of distinction. If you decide to post; have the BOD set the policy in writing and have your attorney make sure it's not in violation of the Fair Debt Collection Act. Then I would publicize what you intend to do a couple of months before you implement it to give people a chance to get caught up and allow feedback from the community, then: 1. Apply it evenly and fairly, every time & for every one. (If a homeowner gets in a bind, medical problems, lost job etc. we will work out a repayment plan and as long as they stick to it, we put a hold on the collection process. If you post I wouldn't make any exceptions as it may leave you open for a law suit.) 2. Make D*** sure you have the right information before you post someone's name. (i.e R. Meijer may owe the assessment and you post R. Meyer by mistake. If I were R. Meyer I'd come after you in a heartbeat.)

WilliamT
(Arizona)

Posts:489

12/20/2006 12:42 PM
Posted By PedroC on 12/20/2006 11:33 AM 5. Seeking people's opinions does not constitute an action and opinions are just opinions. Judge Not Lest Ye Be Judged! and Let He Who is Without Sin Cast the First Stone ... 6. Re-read 5 No offense, I just don't need the lecture. I'm trying to be fair and just to all and I'm looking for the opinions of peers on the subject so that we can make the best decision. Thanks, Pedro. Pedro, You stated that you received a recommendation from the attorney to NOT post anyones name. That should have been sufficient, but you appear to want to ignore the recommendation of the attorney. When a board goes against the recommendation of an attorney, then they are setting themselves up for some potential legal problems. If the board gets sued, it will have to defend the suit, and that attorney will be on record as having advised you that he recommended against printing someone's name. All the suggestions from posters here have been to NOT post anyones name. But you continue to challenge everything they say and seem to keep looking for the answer you want to hear. You appear to just want to embarass the person for being delinquent. That's probably one of the reasons that AZ and other state laws require that any discussion of delinquent accounts using names be held only in closed session. Even if it's in the public domain with a lein, I would never try to embarass anyone in my community like that. One thing to consider is that people generally do not like to see someone being picked on. And I would consider that if a board publicized my neighbors name because he was delinquent,that he was being unfairly picked on, and I would have a very bad feeling towards the board of directors for taking that course of action. Another feeling I would have is, if this board is so unprofessional that it wants to print everyone's name who is delinquent, even with a threshold, they would do the same to me, so I would fight the board to protect my neighbors and my privacy. I personally consider it a very unprofessional type action to "tell everyone in the community" that Joe Blow is behind in his dues, and is not in the best interest of the community. The board should rise above that and take all the legal action through the attorney that has already provided good advice. You would be well advised to heed the recommendation of the attorney. If you don't want to hear what I have to say, and don't want to follow the suggestions you've been given by other posters, and your attorney, then I wish you lots of luck.

HaroldS
(Arizona)

Posts:904

12/20/2006 12:46 PM
Folks, Pedro isn't looking for advice. He doesn't even follow paid attorney advice. He wants rationale and approval for what he wants to do. Good luck to him. Harold

hoatalk

Posts:490

12/20/2006 12:49 PM
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KennyD1
(Texas)

Posts:51

12/20/2006 1:14 PM
I would put a # of delinquent account, but don't point fingers. Some people have bad money management. Just be polite and don't point fingers. My wife and I had the money for our dues but just forgot to send it in on time. I would be mad if someone had pointed us out that we were not responable to make payment. Their might also be reason why these homeowners are delinquent and the board members and the homeowners need to work the issue out. The only thing that you could possibly do is when you file in court to collect, then this is public information but I warned that you don't post this on your website, cause it will just cause bad blood between the board members and the homeowners.

BradP
(Kansas)

Posts:1742

12/20/2006 1:58 PM
I think as a board member you have a duty to the people in your community to protect their privacy. Look at the big picture, you post their name and collect, now what? They are going to mad and upset that their name was posted, they will not volunteer to help in any way, shape or form, and will look for nitpicky things to waste the time of the board. Yes you got the money, and yes you have created a mess. You don't know the reason they have not paid, maybe they lost a job, maybe they are on hard times, maybe an illness. I think it is irresponsible to disregard the advice of an attorney unless you are an expert. But..we all have to lay in the bed we make, all we can do is offer advice.

DJ1
(Ontario)

Posts:460

12/20/2006 5:09 PM
Let's say you do post the name and addresses or other info of the homeowner and another owner decides to do something stupid (reprisal/vandalism)...guess who I would name in a lawsuit for damages...the HOA for giving out the info without which the vigilante would not have been able to act! hmmmmmm. This issue is between the HOA and the owner NOT the other owners. Yes the other owners are impacted short term HOWEVER the HOA gets interest/penalties to cover those additional costs and isn't out of pocket anything once the account has been paid back in full, even if that is when the home is sold the HOA gets all its money.

PedroC

Posts:0

12/20/2006 7:44 PM
We have not decided to do or not do the postings. We are evaluating this method in addition to what we already do to collect arrears. If you read what I said, our attorney does not recommend the action, but has provided guidelines for implementing such actions and has other clients who very successfully have done just this. We are not talking about people who have missed a couple of months of dues, we are talking about some individuals who have not paid in years and some have never paid but use the common elements. Again, I don't need justifications or validations, just opinions that are on point, not personal characterizations. Several of the points are valid and have been discussed. Remember that there is nothing wrong with making educated decisions and seeking opinions. Now; how is this different from the very public notices towns, villages and cities print in the local newspapers for tax arrears. They have legal recourse; so why do they do it if not that it works.

RogerB
(Colorado)

Posts:3725

12/20/2006 8:18 PM
Pedro, do not publically post delinquent homeowners anywhere. Instead develop policies and procedures for collections. Following is an example: Rules and Regulations on Delinquent Assessments Assessments are delinquent when payment has not been received by the due date. A 10 day grace period is provided for receipt of payment after which the property is assessed a late charge of $10.00 per month. Assessments may include, but are not limited to, the annual (regular) assessment, special assessments, late charges, interest, fees, fines, attorney fees, collection costs and court costs. All costs related to a delinquent account shall be assessed to the property and paid by the owner. The Declaration (Covenants) establishes that an assessment is a continuing lien upon the property and a personal obligation of the owner. The annual assessment is determined by the Board of Directors as part of the annual budget. The annual budget is ratified, or vetoed, by homeowners at the annual meeting. If the members veto the budget, then the prior budget, including the annual assessment, remains in effect until a new budget is approved. The annual assessment may be paid on a quarterly basis with payments due on the first day of each quarter beginning January 1st, April 1st, July 1st, and October 1st. Assessment payments shall be applied to the oldest assessment first and progress toward the most recent assessment. Statements may be provided by mail, e-mail, or coupons as a reminder to homeowners of the amount and due date of a quarterly assessment. Nevertheless, it is the responsibility of the homeowner to remember to pay by the due date even if a statement is not received. An owner may request consideration by the Board of Directors to defer payment due to extenuating circumstances. An account delinquent over 10 days will be charged $10.00 each month it maintains a balance over $10.00. If a check is returned the account becomes delinquent plus there is a charge of $35.00 for the returned check. An account delinquent over 70 days shall be provided a warning that a lien will be recorded on the property if payment is not received within 30 days. An account delinquent over 100 days will have a lien filed with the Douglas County Clerk. The lien amount will include a filing charge of $100. An account delinquent over 130 days shall be provided a warning that the account will be referred to an attorney for collection if not paid within 30 days. The Association shall make a good faith effort to resolve disputes first with the Owner. If resolution is not reached the Association stands ready to go to binding Arbitration under the Uniform Arbitration Act. The parties are herein forewarned that if court proceedings are necessary to resolve a dispute, the court shall award to the prevailing party reasonable collection costs, attorney fees, and other costs.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

BrianB
(California)

Posts:1748

12/20/2006 8:36 PM
I think it's been said many times and better, but i have two cents here with nothing else to do... Can you post them? Yes, you can... as your lawyer said, legally you can. It really isn't all that much different than posting a bad check in plain view at the local grocery store or liquor store. Should you? Well, everyone here AND your attorny say it's a bad idea... majority doesn't make fact, but when you ask opinion, it weighs... so, no, you probably should resist the tempation.

GlenL
(Ohio)

Posts:1468

12/20/2006 11:05 PM
The State of Ohio gave us a little present two years ago and we were able to amend the CC&R's WITHOUT a homeowner vote with a lot of things that gave homeowner's and the BOD more power. Among them was this little gem: Suspend the voting privileges and use of recreational facilities of an Owner or Occupant who is delinquent in the payment of assessments for more than thirty (30) days; You should see what happens when you approach someone at the pool on a hot summer day and pull them aside to explain (Quietly-They also get a letter from the MC when they become delinquent) that they will have to leave the pool area because of non-payment. Especially if they have a couple of kids with them; demanding (in loud voices) to know why they have to leave.

hoatalk

Posts:490

12/21/2006 4:04 AM
Posted By PedroC on 12/20/2006 7:44 PM Now; how is this different from the very public notices towns, villages and cities print in the local newspapers for tax arrears. They have legal recourse; so why do they do it if not that it works. ---------- Cities use the papers as a method of required 'Public Notice' for many legal issues. I don't think it's so much a collection tool as a simple requirement to notify the public of various items. Take a look at all the other kinds of public notices they list there. Don't assume it's an effective collection tool just because the city does it. The city doesn't need the newspaper to collect. They will foreclose and sell the home quite easily.

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MikeS1

Posts:0

12/21/2006 7:18 AM
Pedro, You obviously received a lot of good advice here; but I'll mention one other item and expand on another. Since we had 4 properties seriously in arrears, we had our attorney lien the properties. This still didn't get their attention. Since our CCR's give us the right to suspend parking and pool privileges, we incorporated this into our final lien notice letter. Once the lien is filed, we place one physical tow warning notice on the residents vehicle which is parked in a reserved or visitor space. (Parking spaces are not deeded). Believe me, this works! You also you have to make sure that you're not dealing with any disabled individuals even though we're not subject to ADA or HUD/reasonable accomodation rules. Also, suspend their pool privileges. 2nd item - Use a collection agency after it goes past 60 or 90 days. The collection agency gets their fee on top of the monies due the HOA. Good luck.

KennyD1
(Texas)

Posts:51

12/21/2006 8:22 AM
PedroC from your last posting, I took it that you felt that you were being attack but some of the posting, and you stated that you just want some opions about this issue. The tone of your posting seem to me to be rude and uncalled for. Do not attack those that are posting message to your questions. We are trying our best to read and understand what you are asking for. If someone here post something that does not meet your standards in a answer, then move on. Don't attack those that try to help.

HaroldS
(Arizona)

Posts:904

12/21/2006 8:26 AM
Oh Glen - we can just read the glee in your post as you pull the member and children from the pool. Harold

GlenL
(Ohio)

Posts:1468

12/21/2006 10:38 AM
Do I enjoy it? No I don't. But the fact of the matter is that if they would have paid their assessment in a timely manor, it wouldn't happen. Or do you think it's all right for a deadbeat to mooch off of everyone else?

PedroC

Posts:0

12/21/2006 3:18 PM
KennyD1; Asking people to stay on point in their opinions and not personalize the issue is neither rude, nor uncalled for. I appreciate the opinions and points raised when they are on point. To rebuttal on an opinion or rebuff characterizations does not constitute an attack. People must learn to understand that a conversation is nothing more than a sparring of words and an interchange of opinions, statements and/or questions. I’m merely asking people to understand that their opinions are valuable when on the topic. The act of judging a person based on an opinion is at best childish, as human beings are more complex than that. If I was not interested in the opinions, I would not have posted the questions. However, I will not allow people to personalize the issue or characterize me based on a situation of which there is little knowledge on this forum. But to clarify thing, this was a suggestion by another board member several meetings ago. I'm looking for opinions and rebuttals to cover all bases, as we are close to deciding to proceed with this policy. At our next meeting, I will transcript this thread and distribute for further discussion. All, We issue pool passes to members in good standing but find it prohibitive to have the lifeguard check the passes, as the county requires the use of a second lifeguard or dedicated person to validate that the member has a valid pass if any. Our roads are public so parking privileges cannot be suspended, as the roads are not owned by the HOA. I do like the idea of using a collection agency to go after the arrears. The reason this is such a hot topic is that we have had to raise our dues because we cannot account for 100% collection in our budget and in the past have had to use some of the reserves to pay for expenses because of the situation with homeowners not paying their dues. Thanks.

WilliamT
(Arizona)

Posts:489

12/21/2006 5:01 PM
My opinion on the topic is that it is unprofessional for a BOD to publicize to the membership, the names of members who are delinquent. In many states it is also against the law. Because states have adopted that law, it should be a message to you that exposing delinquents is not a popular option. Many of these new laws are being adopted to protect homeowners from inept BOD's. Notwithstanding the fact that the attorney gave a guideline of how to proceed with exposing the delinquents, he still recommended against it. The fact that he recommended against it should be a very strong message to you and the board. If people are behind in their dues for a year or more, then the board, or past boards have not done their job properly in collecting them. If you have an MC then they should be advising you and doing their job of getting the dues collected. Otherwise, have the attorney do the collecting, and/or place leins on the homes. My opinion is that by taking the exposing delinquents route, you will just make everyone in the community upset. This is not going to make the people pay their dues. It may cause others to say, why should I pay if the board hasn't collected from these other people. The may also become very angry with the board for using that tactic. You've asked for rational behind an opinion and mine is this. 1. It is an unprofessional way to run the business of an HOA 2. The attorney has advised against it. 3. Laws have been and are still being passed to protect peoples privacy, and although it has not been passed in your state, yet, you would be well advised to take the message from the other states. 4. There are lein laws in place to collect these dues. Use them. 5. The majority of advice you've received on this board is to not expose the names.

PedroC

Posts:0

12/21/2006 10:24 PM
WilliamT; please reread my posts. I have already stated the procedures we use to collect arrears and the reasons why they are ineffective. If you are looking for money right now, liens won't do you much good, unless the judgment debtor is likely to sell or refinance his property soon. A lien is essentially passive; placing a lien doesn't get you your money right away. Instead, it gives you standing as a creditor to be paid from proceeds if the property is sold or refinanced. The hope is the property to which liens are attached change hands or are refinanced, at which time usually a lien will produce enough cash to pay off a judgment, along with post-judgment costs and interest. Also, as is the case with most dead beats, there is a long line of people waiting to collect and you might be some where near the end of that list. But understand that a property can be transferred several times over without removing all the liens. If you do some searching on the web, you will find that other communities are doing just what I described but accessible to all on the world wide web. I challenge you to cite the laws of which you based your opinions. Last time I checked being a dead beat is not a privacy issue. Towns and cities post the names of dead beat dads in the papers at least once a year. Please cite a state with a law that protects people's right to remain secret dead beats. Again, I understand the opinions on the subject and appreciate them all. I guess I was hoping to get some creative thoughts, legitimate reasons why or why not out of this posting. I post the question beacuse I believe this will not work, but was not sure if it had for others and at the very least I would have gotten some good input (I have from some). But instead I have in fact got is the moral compass of this group. I understand the moral and ethical dilemma of the issue. Is it ethical or moral to lie, cheat and steal from your neighbors? Once and for all, the real question is; how do you curtail the behavior? I don't want to get into the psychology of human behavior of which I'm well verse, just fresh ideas and thoughts. Try these: Has anyone had success through collection agencies? Has anyone had success through mortgage companies? Has anyone had success through municipalities? ...etc. etc. That is what I'm looking for. By the way; this is call frustration. As this is all becoming noise! Stating the previously stated or restating or regurgitating what I already said is not helpful. It is just pompous. Let it pour (this is call antagonizing).

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