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Randall M. Lipshutz

Randall Lipshutz’s Answers

1,531 total


  • Realize reasonable attorney fees are up to judge and individual situations, but what amount or percentage is "reasonable"?

    I have a judgment agaisnt me which has become ongoing, because the amount (which is already paid and lien released) keeps increasing due to attorney costs. Although the 1000 owed should have more than paid by now even with interest and late fees,...

    Randall’s Answer

    Reading between the lines, this sounds like a homeowners association or condominium assessment was at the root of the judgment. If that is the case, the attorneys might be able to prove the amounts you have mentioned. But you are correct - what is reasonable is up to a judge to determine. You haven't (and probably should not) posted enough information to really evaluate whether you are being overcharged, but it certainly is possible. Your best bet is to spend the money for an hour or two of time with an attorney who deals regularly with the type of lien involved in your case to try and get a more definite answer.

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  • Does my HOA board legally exist?

    In order for an HOA board to exist and or operate, must they have a President and Vice President? Mine presently consists of only a secretary and treasurer and has been that way for over a year.

    Randall’s Answer

    The circumstances you provided do not indicate that the HOA does not exist. Boards operate all the time with vacancies on the board or in offices, and the other board members are authorized to do so. If you had indicted that there was only one board member, it would be different, but two are able to take official action. There may be ways to force the issue to fill the vacancies, but that answer would require a review of the corporate bylaws.

    Also, there is a difference between officers and directors. If you have 2 directors still in office, under most HOA documents those 2 director\s would have authority both to name a new President and/or vice president, and probably they would have authority to appoint individuals to fill the empty board positions.

    To get a real handle on your situation, you probably need to get the HOA documents to an attorney for review. But don't expect an experienced HOA attorney to tell you that the absence of a president and/or vice president invalidates the existence or actions of the association - at least absent unusual provisions in your documents.

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  • Does satisfaction of an HOA lien have any affect on judgment awarded?

    The HOA won a judgment against an owner delinquent with dues on 2 lots. A FiFa was filed, and Interrogatories submitted revealed no other assets. Can't garnish either as they are self-employed. We know we will not ever recover that debt and don't ...

    Randall’s Answer

    Why would you have any reason to satisfy the lien until your judgment is paid? If the fifa is recorded against the property, you have a second recorded lien, but there is probably no reason to release the first lien. Also, if you lien is statutory (if you fall under the Property Owners Association Act or the Condominium Act), satisfying the original lien and relying on just the judgment lien may be detrimental. Just because you have the judgment does not mean you have to satisfy the other lien, and I would recommend you talk to a community association lawyer who can look at your documents before you do so.

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  • Can property be leased if it is in possible foreclosure?

    Can property be leased if it in possible foreclosure??

    Randall’s Answer

    Just because there is a threatened foreclosure does not stop the owner from leasing the property. Is it wise for either the landlord or the tenant? Maybe not. The tenant may face eviction after a foreclosure, or the tenant might, depending on circumstances, be able to stay the term of the lease and just have a new landlord.. But that is by no means a certainty. If the landlord wants to lease and the upfront payments will be enough to stop the foreclosure because they are applied to the debt, it may make sense. But both parties need to go into a lease transaction with their eyes open, and preferably after getting advice from counsel based on the exact facts of the situation.

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  • Is the HOA Board obligated to grant non-owner, non-tenant access to amenities?

    The Easements section of our covenants state, "...(b) Any Lot Owner may delegate such Owner's right of use and enjoyment in and to the Common Property and facilities located thereon to the members of such Owner's family and to such Owner's Occupa...

    Randall’s Answer

    First, if you know the occupants are living in the house with the owner's permission, be vary careful before you deny the occupants the use of the amenities. There might be a valid basis to deny access, but there are too many factors involved to give a clear answer without having your HOA documents to review. Clear any decision through the HOA''s attorney first. Then, if you are wrong and the attorney is wrong so access should not have been denied, you as a board avoid legal liability because you relied on the advice of counsel.

    As far as notices are concerned, if the owner has not given you an alternate address, virtually all documents would allow you to send the notice to the property address to meet any legal notice obligation.

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  • Does the Lien still stand on the condo plus can the HOA continue to send me bills over the past about dues plus add fees

    I've filed 13 Bankruptcy awhile back, The HOA was seeking Foreclosure on my Condo and had placed a Lien on my Condo before I filled for Bankruptcy. At the recent TRCC Hiring Court stated the HOA - Filed -No Claim Against me. - I'm assuming the R...

    Randall’s Answer

    You really need to talk to whatever attorney assisted you in the filing of your bankruptcy, If you are still in Chapter 13, it is possible that the HOA is violating the automatic stay provisions that apply to bankruptcy, and it is also possible that they waived their claim to repayment by not filing a proof of claim. It is also possible that they retain a lien for the old amounts even if they did not file a proof of claim. A real answer will depend on your state law and what was filed in the Chapter 13. Not much more of an answer can be provided in this type of forum.

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  • Is our HOA obligated to accept Dues payments from whomever?

    Our covenants clearly state that dues (assessments) payments are the sole obligation of every owner or Grantee. For 15 years we have never accepted Dues payment from tenants or anyone other than the property owner(s) listed on the deed. Are we oka...

    Randall’s Answer

    I am honestly not sure what purpose the policy serves. If tenants are permitted at the property, it really should not matter if the tenant pays the dues. Your obligation as a board is to collect the assessments and pay the expenses. Who writes the check should not be relevant to that duty. For example, if a home is rented through a rental agent, if the agent writes you a check for the dues, you would accept that check as having been written on behalf of the owner. If the owner signs a lease with the tenant and the tenant is obligated under the lease to pay the assessments, the check is written by the tenant but still on behalf of the owner. The owner is the one that is normally obligated to pay the dues, and changing who writes the check does not change the obligation.

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  • Am I eligible to practice law in NY and GA? Should I disclose this information to Bar officials?

    I was charged with domestic violence battery in 2013. However not convicted. Since I was a first time offender, I got accepted into the pre-trial intervention program. After completion of the program the charges were dropped and expunged. I'll sta...

    Randall’s Answer

    Honesty is always the best policy. If you are asked a direct question which would cover the charge, even though eventually dismissed, you probably need to disclose. If you don't and the bar finds out you lied or misrepresented on your application, that is going to be a far worse problem for you than disclosing a charge on which there was no conviction and an eventual dismissal.

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  • Not to be confused with the declarant rights a builder has as it relates to appointing a board before turning the board over to

    Our condo builder sold 90 units to an investor. The investors voted the entire owner-occupant board off, took over the board and rents out all their units...essentially turning our condo into an apartment complex.

    Randall’s Answer

    It looks like you posted your question twice. See my answer to your other post.

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  • Contrary to declarant rights to appoint a board, what are reserve declarant rights? Where are these rights publicly recorded?

    Our condo builder sold 90 units to an investor. The investors voted the entire owner-occupant board off, took over the board and rents out all their units...essentially turning our condo into an apartment complex.

    Randall’s Answer

    It is unclear that your issue involves declarant rights, but if it does, they will be spelled out in the recorded declaration for the condo. If there was already an elected board, the declarant rights may have terminated and the investor is simply holding the majority of the votes.

    That being said, it is not at all clear whether what he has done is legal under the documents. That would require a review of the Association's governing documents. Even an investor representative on the board has to represent the interests of the entire community, not just his own financial interest. To get a real answer, I'm afraid you are going to have to get the association documents together and then talk to an attorney experienced in community association law.

    Sorry there is not an easier answer.

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