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Subject: Is it legal for the HOA to post members that are delinquent on their dues on a public web-site

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SidneyP
(Florida)

Posts:292

06/27/2007 12:11 PM
I for one feel that the delinquent accounts should be posted for "HO's to see" or perhaps a reversal...post all HO addresses and beside each post a paid notice, leaving the unpaid blank....We have six in our community who have NOT paid in over two years (we pay semi-annually @$372. now $409. ($818. a year), that's alot of money). All of these homes/units are rentals and have been rented all this time. They have the money to pay but choose not to. They all have liens on them but the investors don't seem to care. They seem to know that it's unreasonable for us to foreclose (one has already been foreclosed by the bank). What would our neighborhood look like and where would we come up w/the money to file? Don't know much about real estate investing but maybe they feel it's ok to hang onto these properties a few years then sell, make a good profit and then pay the dues. I have no idea their reasoning but they just won't pay. So, in our case it's not HO's who have run into financial trouble. We even changed MC's, this one saying they would be aggressive in collecting but still nothing has happened.

MelissaP1
(Alabama)

Posts:650

06/27/2007 3:32 PM
So Sydney, your okay if I post and make available your personal information? If it's okay to post others, then it should be okay to print yours. Are you okay with that? What if you were sick that month and simply forgot to pay on time? What if it was a mistake? I think if it was YOUR information available the shoe would be on the other foot and fast. A lien means the person can NOT sell their home until they pay off the lien. So it doesn't matter how long they stay owner's of that house, the money should still be accumulating. By the time they get around to selling, this will be a hurdle for them to overcome. That's may be why they are keeping it rental. They can rent the house out as long as they want, they just can't sell it. Renting atleast allows them to keep their mortgage payments. Banks don't notify HOA's they are foreclosing on the property. A property can be up to date on it's dues and still be foreclosed on by a bank. It costs a few thousand dollars for a HOA to foreclose on a house. Then if they do foreclose, the bank is given the money FIRST, then the HOA if there is any money owed to the bank. So the HOA can get rid of a non-paying member but not gain a penny in return. They'd be lucky to even break even. Your HOA should be placing liens on non-payers. Liens are subject to public record. Our liens are printed in the newspaper after being placed. No secret there. Liens aren't "instant" money. They take time to collect. They are more reliable than lawsuits. A lawsuit just grants a "judgement" which means the homeowner can sale their property without paying the judgement for years. Atleast with a lien, the owner can't sell without paying. I think you should read more posts on this website. You will find more relevant information on the cons of posting information. You may also be more informed of the rights of the HOA, Owners, and Renters. Please review.

Former HOA President

JohnC10
(Arizona)

Posts:106

06/27/2007 3:39 PM
Posted By SidneyP on 06/27/2007 12:11 PM I for one feel that the delinquent accounts should be posted for "HO's to see" or perhaps a reversal...post all HO addresses and beside each post a paid notice, leaving the unpaid blank.... That's very creative, I like it. Perhaps a community map with "paid" listed next to the lot numbers.

JudithC
(Virginia)

Posts:252

06/27/2007 4:02 PM
A lawsuit just grants a "judgement" which means the homeowner can sale their property without paying the judgement for years. Atleast with a lien, the owner can't sell without paying. Actually, in Virginia you can file the judgment in circuit court for a few bucks and it works just like a lien; the person will not be able to sell the house without that popping up against them. I would think that all associations would want to collect the money, rather than waiting until the person goes to sell their house. The lien/filed judgemnt protects the association while they go about the business of collecting the money. You can attach bank accounts normally and it works like a champ. There are other things that can be done also, far short of foreclosure. Again, all this might differ state to state so one would have to find out the options in their state.

BradD2
(Florida)

Posts:418

06/27/2007 4:09 PM
It works that way in most states.

MicheleD
(Kentucky)

Posts:1867

06/27/2007 4:22 PM
I'm not sure how the small claims thing works if the person would just be refinancing, for example. I know that if the homeowner has a lien, that the refinancing stops until the lien is paid, and, in some places, it also affects their credit score. Not sure if the small claims venue does that. In our HOA, we pay on an annual basis one flat amount. The due date is January 1 of the year in which the dues apply. On January 7 we send a "status report" to all homeowners with each lot listed by address in address order. The report indicates only "paid" or "not paid" for the current year. The letter that goes along with it thanks those who have paid, and reminds those who haven't that they have 15 more days to pay before late fees are added. At the end of January we send a second status report with the same indication, on this time it says "paid" or "not paid - late fees applied." We also then remind the residents that if the dues + late fees not paid by XXXx date, a lien will be filed, which will incur an additional $XX. On the date the liens are filed, a status report goes to everyone with the addresses listed as either "paid" or "lien." We still have people who don't give a rat's patootey, but out of 275 homes we have about 12 liens, on average, each year. Then we also get about 3 to 5 on average "pay off" as one or another either refinances or sells their home.

RobertR1
(South Carolina)

Posts:2525

06/27/2007 4:44 PM
Michelle, When I read a post like yours I realize again how inadequate our management over the years has been. It is not the subject or if it is right or wrong it is just the fact that a Board can sit down and come up with something that is proactive, clear, and sounds like a rule you should follow if you want to be a part of the community. My experience has been that the Boards seem incapable of taking a business necessity and putting out something that makes sense. And once this starts in the life of the Regime it is almost like a requirement to react in a defensive manner, run around the bush, don't read what they publish, refuse to communicate and worest of all insist on expounding how wonderful they are doing their job at annual meeting. You don't even need a calander to know the date. Couple weeks before annual meeting people start popping out of woodwork, planting flowers all blooming, trimming, cleaning up the complex, painting, and just having a grand time rushing here and there. I am not saying our place is ill kept but we sure know how to put on a good face when the time comes down to sit across from the membership.

BradP
(Kansas)

Posts:1742

06/28/2007 6:32 AM
"Banks don't notify HOA's they are foreclosing on the property." Melissa: Actually that is not accurate, as I stated before we just got a summons to go to court over a foreclosure in our neighborhood.

SidneyP
(Florida)

Posts:292

06/28/2007 11:32 AM
MellissaP1- Post 353....."So Sydney, your okay if I post and make available your personal information? If it's okay to post others, then it should be okay to print yours. Are you okay with that? What if you were sick that month and simply forgot to pay on time? What if it was a mistake? I think if it was YOUR information available the shoe would be on the other foot and fast." Yes, it is ok to print my personal information, (this is not the world business but it is the business of the HOA's since we share in this corportation and it's responsibilities). Is it ok to print the names of dead beat dad's, child sex offenders? You darn right it is. When HO's don't fulfill their responsibilities to the community, they must realize they are hurting others..In my case,these are investors, they have the money to pay. I know several of these owners and they live in million dollar homes on the water here in Flordia. Yes, this subject has been discussed many times on this forum and true people may be sick or have personal financial problems but it is up to them to come forward and explain to the BOD's of their accociation about their problem. Each giving the other a chance to work things out and figure out, not just ignoring the problem. What about the HO's that are paying, they may be struggling too to make these payments but are doing the right thing by keeping their responsibility to the community. We are a very small community (77 units) and were left w/inadequate funds and a low ball budget by the developer. If fact we ran out of money last year (mainly because of no pays), why our dues were raised. When HO's don't pay they cause a hardship on all the other HO's. Suppose a "special assessment" was needed, again a burden on the paying HO's and as I said before, they may very well be having a hard time paying these dues themselves. I feel sorry for people who fall into hard times (I've been there) but I don't feel sorry for people who feel they owe no responsibility to the community. I for one am tired of paying to mow their lawn week after week, tired of pressure washing their home and most especially having all the violations being broken by their tentants. It is these tentants, that don't pick up after their dogs, that park their cars in the grass, running over the sprinklers that the paying HO's have to pay to get fixed....OH!yes, we do send letters but like the delinquent notices, we never get a reply or a fix to the problem....Collecting on a lien many years down the road doesn't help the situation now, doesn't pay the bills now. So, I say post that HO's "paid" list.

JeanneK3
(Maryland)

Posts:134

06/28/2007 12:36 PM
I took the CAI course "The Essentials of Community Association Volunteer Leadership" in Columbia, Maryland a few weeks ago and an attorney who was giving the course said a Board may not close meetings to talk about deliquencies since every member of the "corporation" has a right to know what is going on and further you can publish the names of deliquent owners but you must never publish a dollar amount (you could be sued if that amount is wrong) and it must always be deliquent as of a certain date. I guess if you were not incorporated this would not apply.

JudithC
(Virginia)

Posts:252

06/28/2007 1:20 PM
I wonder what the logic is that if the dollar amount is wrong you might get sued, but if the actual fact of the delinquency is wrong you wouldn't. It doesn't make a lot of sense to me. My CAI seminars were long ago and then they were saying don't post as if you are wrong you could be sued (dollar amount or fact being wrong).

JeanneK3
(Maryland)

Posts:134

06/28/2007 2:19 PM
Judith C: I think the point is that members of the association have the right to any information about the association. You would not post these names on any site that was available to the public. But a password protected web site or a mailed newsletter would be appropriate. I must admit I don't think posting names is a good idea but it seems to be legal.

RobertR1
(South Carolina)

Posts:2525

06/28/2007 5:42 PM
To all, Lots of different viewpoints here and good cases pro and con. But, push comes to shove, if you happen to be the one that makes the decision, you are probably going to do the safest thing. If the board decides not to post names of those that have liens, I can't see where the council can make them other than through the courts or recall the Board and really, that will not solve the problem. I think we are lumping this specific item by tying it to a Board that has lost the skill of communicating. That's a bad thing and if this lien business was an isolated instance, I doubt much would be made of it if the Board would communicate their reasons and work out a compromise, and in this case that could be a regular report by the board that details how much money is owed by how many people, efforts that have been make to collect and some data that would show how the Regime is doing historically. Isn't that what we are concerned with? Is our monmey being used prudently? At least that is how I see it, I am much more concerned that the Board does their job well and is responsive and capable. Most folks never had aa job like the Board of a HOA and some are just not up to the task for a lot of reasons. There are good boards and bad boards, and the essential criteria is not do they post names of your neighbors, but much more how does the Board get this herd of cats going in the same direction.

DuaneW1
(Georgia)

Posts:29

07/01/2007 8:26 PM
'I for one am tired of paying to mow their lawn week after week, tired of pressure washing their home and most especially having all the violations being broken by their tentants. It is these tentants, that don't pick up after their dogs, that park their cars in the grass, running over the sprinklers that the paying HO's have to pay to get fixed....OH!yes, we do send letters but like the delinquent notices, we never get a reply or a fix to the problem....Collecting on a lien many years down the road doesn't help the situation now, doesn't pay the bills now. So, I say post that HO's "paid" list.' Boy, do I feel your pain! We just had a HOA meeting and one of the noisiest neighbors there complaining was one who hasn't paid, and yet only a handful of us know that, protecting them, so that they CAN gripe and have no consequences for their actions. Sure, they can't vote, or it's thrown out, but again, only a few people know that. The assessments are sure to go up, since we've had so much vandalism to fix, adding that to the fees from attorneys/MC letters and fines which all go unanswered, meanwhile the faithful pay, and pay, and PAY. It is extremely frustrating, and yet, there doesn't seem to be an adequate answer. Other than the answer that has been given already, yes, it's probably legal to publish on a limited site open only by password. I sure hope if anyone does this and it actually GETS THEM TO PAY, please come back on the site and tell us!

CharlesW1
(Georgia)

Posts:821

07/02/2007 12:17 AM
DuaneW1, I feel I can speak on behalf of the majority of the members that post to this discussion forum, by saying you are “beating a dead horse” concerning delinquent homeowners. Basically saying it’s not fair This is my first year as a board member, and thinking of course I, (like many) felt that the previous board members were mismanaging what funds that were collected. I felt "I" could do a better job managing the funds collected to better me and my community, in the best way possible. Legally I can’t tell you what you can or can not do, but I too (like many have suggested) would recommend not posting that particular information, password restricted or otherwise. I just feel it would cause more harm than good for you, your neighbors, (community) all to whom you are representing. Neither I nor any one else is disagreeing with you (it’s an up hill battle) I think you would certainly feel better knowing you collected from those delinquent lot owners, without posting personal information. I personally feel you will be "digging your own grave”, which will ultimately affect every homeowner residing in your community. I’ve re-read all the previously written posts and in the long run do what’s best for you and your community. One post in particular, written on 05/28/2007 by MelissaP1 states “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.” Please help us help you we are all aware of those exact same HOA problems, “IF” you gather any productive ways to collect these assessments, please don’t hesitate to inform us. Many, (like you) get a little tired of paying for the “dead beets” living in our HOA today as well. Best of luck. Chuck W.

Charles E. Wafer Jr.

MikeF2
(Ohio)

Posts:5

07/02/2007 5:24 AM
We explored the idea of posting the homeowners with delinquent association fees during a meeting of the Board of Managers in our newsletters to the membership. I felt it was best to keep this quiet due to friction from other people who do pay their fees on the first of each month. Suppose a comment was said bya current dues home owner to a delinquent and a fight escalated over it. Well we then have another problem to deal with.

RobertR1
(South Carolina)

Posts:2525

07/02/2007 5:33 AM
Deliquent Homeowners, When I read these posts about this subject I keep thinking of puting a round peg in a square hole. Something out of kilter. If the Membeers are not supposed to know who is deliquent, why should the board know? The Board should be focused on collecting any bad debts. So being a board member in this instance does not give them privy to knowledge the membership don't have. Maybe this is a job for the treasuer. We are a funny lot, we don't rebel against our Board going into executive session, discussing something, taking action, and we don't have a clue what they are talking about. The Board should not stand above the membership, in fact the Board stands (in many ways) below the membership. I'm not advocating anything, I'm just thinking about different ways to look at a problem. I am not bothered by who is deliquent, but I am concerned that all should pay their share, and I am also very concerned that I be provided with the information by the board that reflects on the health of the association, especially now with this subprime lending disaster. If the Board elects not to publish names then the Board members as a whole do not need to know names, let the Treasuer or the manager handle the problem and report to the Board and Membership the fiscal information. Just a thought.

DonN
(Michigan)

Posts:242

07/03/2007 3:47 PM
Please read the Fair Debt Collection Practices Act. A summary is available on Wikipedia at http://en.wikipedia.org/wiki/Fair_Debt_Collection_Practices_Act. Wikipedia provides bullets for prohibited and required conduct. The prohibited conduct includes, "publishing the consumers name or address on a "bad debt" list".

Don Nordeen Governance of Property Owners Associations

JudithC
(Virginia)

Posts:252

07/04/2007 6:29 AM
Although I am solidly against posting the names of people who owe the association, it is my understanding that normally the Fair Debt Collection Act would not apply. In the same Wikipedia article it says "While the FDCPA generally only applies to third party debt collectors--not internal collectors for an "original creditor" " -- I think this is what the attorney probably was referring to. The association itself does not have to follow the FDCA, if we send it to him, he does. So, although I would like to see posting of debtors outlawed, I don't think it is unless it is done by a third party, of which I would suspect the managing agent is one. I am not sure about the murkiness of if the managing agent is doing the homeowner accounts, and the board takes their data and posts it. Where it seems to be clear is if the association itself is doing the homeowner accounts and sends the tough cases to a third party to handle. In that circumstance, the association could in fact post the data if they believed in the scarlet letter approach to governance.

RobertR1
(South Carolina)

Posts:2525

07/04/2007 9:36 AM
Judith, Man, am I relieved, I thought you were referring to the big "A", Adultry, the Scarlet Letter. I'm glad HOA's don't have to sort that out.

JudithC
(Virginia)

Posts:252

07/04/2007 10:35 AM
Posted By RobertR1 on 07/04/2007 9:36 AM Judith, Man, am I relieved, I thought you were referring to the big "A", Adultry, the Scarlet Letter. I'm glad HOA's don't have to sort that out. Ho, my laugh of the day. It was just the concept. We could always bring back the stocks too for public humiliation. That didn't seem quite right so I googled for methods of public chastisement -- see http://tinyurl.com/346akv The finger pillory -- people sure have imaginations when it comes to others' transgressions.

BradD2
(Florida)

Posts:418

07/04/2007 4:50 PM
Judith, from what I have read it does apply. Do a web search for "Association Fair Debt Collection Case". Within the first 40 - 50 hits you will probably find 10 lawsuits where Associations were sued and lost because of violations to the Fair Debt Collections Act.

JudithC
(Virginia)

Posts:252

07/04/2007 8:32 PM
It being late, I did a "quickie" search and what I was finding were a bunch of cases where the attorney firm collecting money for the association messed up and then tried to say that somehow association fees were not covered under the FDCA. On the AHRC website I found an explanation which seemed to agree with what I was told: "The FDCPA does not apply to a primary creditor collecting for itself. What this means to homeowners is that anyone who attempts to collect a debt from them on behalf of their association, who is not a title holding member, that regularly collects debts, is bound by the FDCPA and can be held accountable for violating this set of laws." Onthecommons.us has a number of Fair Debt Cases listed. I downloaded about half of them, and again, it was usually attorneys trying to get out of following the act when collecting for an association -- I am not sure whether they deliberately ignore it or whether they mess up and then argue this theory about association debts not being covered. It was fun, though, as one law firm was an "ex" of ours who got us in near riot status through advice to a hot-headed president. Now, one could easily argue that associations should follow the spirit of the act even if it doesn't apply to them in what they do personally to collect -- I would agree with that, but then I am against posting that information! I am for as much privacy as possible for the homeowner, and still maintain from an association point of view, that the very real possibility of an error would result in unnecessary embarrassment for the homeowner and possibly worse for the association. I had a bank tell me once that they never made mistakes. I certainly can't say that of myself nor the post office.

JosephW
(Michigan)

Posts:789

07/05/2007 8:58 AM
Try this article for a more detailed look (even though its an older article) http://dicklerlaw.lawoffice.com/news_fair.htm 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

JohnC10
(Arizona)

Posts:106

07/05/2007 10:07 AM
In my HOA the MC tends to file a lien for as little as a hundred dollars. In the county I live a person can view all recorded documents on the county recorder's website, a public domain. That means I can view all liens the HOA has filed. According to the CC&Rs the lien must have the owner's name, legal address and street address. If the county can legally post this info to the public it seems reasonable that the HOA can publish the same info for the members.

JudithC
(Virginia)

Posts:252

07/05/2007 10:32 AM
Joe, sorry, this article says the same thing: "The law does have an exception. Any entity that is owed money, may communicate directly with the debtor without complying with the Act. Thus, the association can write directly to the unit owner and demand payment or threaten eviction without complying with the requirements of the FDCPA. However, if there is any third party that is involved even if the third party writes the letter for the association to sign, then there must be compliance with the FDCPA in all respects or there is a potential for serious liability, penalties and attorneys fees." Attorneys, managers, etc. must obey the act but not the association if they act directly. It applies to third party collectors. However, the beginning of the next paragraph does say it would be good for associations to apply it to themselves. This was an interesting article, though, as it explains why there are so many FDC cases where the attorney is arguing that the dues debt does not apply. I thought they were just being inventive!

JosephW
(Michigan)

Posts:789

07/05/2007 1:26 PM
Judith, Wasn't disagreeing - just deferring to someone with a more direct knowledge. 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

BradD2
(Florida)

Posts:418

07/05/2007 3:39 PM
Juidth the part of that law that we are discussing is notifying a third party of a debt.

JudithC
(Virginia)

Posts:252

07/05/2007 4:09 PM
Whatever, that wasn't what I was discussing. The person who owes is not a third party, and the association per se is not a third party. It is only when the association hires someone (their attorney, property manager, etc.) to collect the debt that a third party gets involved and that person must obey the FDCPA. The association, acting solely on their own does not, that is all I was saying and so far all the references agree. I got involved in this distinction because our docs strangely give a 30 day period in which the homeowner can pay. The way they are worded, the homeowner is not overdue until after that 30 days is up. I was sending out three notices on my own and then would send the case to the attorney at the end of it. I talked to the attorney whether we could shorten the time line which ended up being about 90 days, and it turned out not much within the parameters that the board wanted to do as he had to obey the FDCPA meaning if we he took over the third letter he had to wait a prescribed number of days. So, we had the association send all the letters and then when it went to the attorney he went directly to court.

BradD2
(Florida)

Posts:418

07/06/2007 11:34 PM
Wrong; that isn't how the courts have ruled in the past. They view public disclosure as the public being the third party. If you post the information on a board in the community then everyone who comes into the community sees it. If you post the information on a website then everyone who visits can views it; search engines will find your obscure page in time. If you send it out in a letter then you are telling all the neighbors about it. Be sure to come back here and let us know what happened when you are sued.

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