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Monday, December 06, 2021











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Subject: Who is responsible: Manager or HOA?
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JenniferB14
(Colorado)

Posts:130


05/06/2021 9:49 AM  
I have discussed this elsewhere before to some extent. We were charged a $4500 assessment for fiberoptic internet to be brought in to our rural community (which there is a lawsuit currently). The management company has a contract with the HOA (the HOA would love to see me burn in hell I'm sure). The contract clearly states the following:

".....owner has the right to request a payment plan of at least 6 months. Agent is granted the authority to establish such plans with a unit owner. If a plan request is for a period greater than 6 months, Agent shall notify the Board of such request and establish such plan upon Board approval. Agent shall have the authority to suspend any late fees or late interest during a payment plan period"

I also have the contract fee agreements between the management company and the HOA. The fee agreement states:
"Payment plans setup fee charged back to owners: NO CHARGE"
"Payment plans monitoring fee per month of plan charged back to owner on plan- NO CHARGE"


So... when my account hit delinquency, I requested/stated I opted to the 6 month payment plan as required by law and would pay the $750x6=$4500. The first payment I made I notated payment in full for 1 of 6. They cashed the check, applied it to my account, then reached out to me and said I needed to pay a $215 payment plan fee to set up a payment plan. I reminded them of their contract, and told them I would not oblige to an additional fee that was not lawful. So they refunded my payment and stated they would not accept the restrictive endorsement on the check. So I sent them a letter both emailed to the board and management company, and also sent it certified mail, stating I would continue to send my payments and I would send an additional $54 for the first month's late fee and interest as settlement for all late fees and asked that they therefore suspend all additional late fees and interest while I make the payments. I told them I was sending the refund check back (which I did) and asked them to reapply my payment. I never received a response from anyone. I sent the additional check about 2 weeks later with the restrictive endorsement and they cashed the check and applied it to my account.

At the 6 month mark I make my last payment yet the management company still had not reapplied my first payment as I requested. I also had over $300 in additional fees and interest added to my account. So I reached out to both the board and the manager and stated I have paid in full and sent a settlement check for all penalties. I found out they have me on an "ineligible" list to receive the fiber installation at this time.

April 29, they then suddenly reapplied my payment, and then notated another refund check was being generated, so I immediately sent an EFT on their website for another $750. I see today they have now reversed that payment as well. Seems to me they refusing any payment unless it is the total amount they say I owe which is all penalty charges. No one form the management company will return my calls.

I did speak with an attorney who felt small claims is a perfect idea, especially since she felt they were toying with me since I am a plaintiff on a big lawsuit against the HOA. If I file a small claims case so the judge can tell them to knock it off... do I have the right to file the case directly with the management company versus the HOA? The contract violation is between the HOA and Manager, not Manager and Owner, however the Manager is given authority to arrange and manage the plan and the account directly with the owner. They are violating their responsibility as they are the executor and manager of my account.

Sorry this is lengthy but would love some guidance. This by the way is in the face of being slapped with 6 violations too, most of which are past SOL, and aren't violations anyhow. It is nothing but harassment. What about a restraining order against the HOA? Sigh
CathyA3
(Ohio)

Posts:2599


05/06/2021 11:24 AM  
I recommend listening to your attorney - that person will know the ins and outs of your particular case. Most of the posters here aren't lawyers, we live in different states which can have different laws, and most of us haven't dealt with HOAs providing fioptics or other internet service. Any advice we'd give would be based on incomplete knowledge and is likely to be misleading or flat out wrong.

In general, the association (ie, the board) calls the shots, and the manager does what the board tells them to do. Some boards choose to give their managers some amount of autonomy - but I have no idea if this is happening in your community, and if so, how much or if the manager is overstepping.
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