The HOA recently obtained a Judgment against me for unpaid HOA Dues. It's been 28 months since the last mortgage payment was made and the bank is dragging their feet on foreclosure. The condo has been empty for over a year. I understand that I am still responsible for the unpaid dues and I am concerned that now that they've obtained a judgment that the HOA may try to garnish wages or freeze bank accounts. Are there any legal options for me such as appeal or exemption? The entire complex was under litigation for years which made it impossible to sell. There were also other extenuating circumstances. Would I get a chance to respond/fight garnishment prior to taking effect even though judgment has already been obtained? Any recourse to appeal judgment or delay until foreclosure is complete?
Real Estate Attorney
The appeal timeline is very short and you will need to file the notice right away. That being said there will be no notice of a garnishment or writ of attachment. Usually these judgments just languish until the next sale of the property or any other property in the name of the party.You will need to consult with a consumer protection or bankruptcy lawyer locally for private and specific advice on your particular issues.
Many lawyers on this site offer a free consultation and you can find one near you, make an appointment for legal counseling, and take your paperwork and a written chronological summary.
1. Start keeping a detailed log of all calls and letters and a paper file of all information. Because persistent violations of the FDCPA are punishable by statutory fines and attorney’s fees under federal law, but you need hard evidence.
2. Make a written demand that all further communications from creditors is in writing under 15 USC 1692 (c). The letter should also contain a dispute of the validity of the charges and include a demand for a complete accounting with signatures, and all contents of their file.
The creditor then has 30 days to reply and they may not take any action until you have been sent the validation. Bear in mind that this may be motivation for the collector to work your account when the file comes to them from the original creditor with new information.
3. Do not give them any personal information because that is how collectors decide on which accounts to recommend suing. Remember they may not tell the truth and will say just about anything to get a payment from you and that payment reaffirms the debt, gives them information about you and your bank and ability to pay.
4. If you are going to make payments use money orders only and never personal checks, wire transfers, money grams, or “check by phone.” If the collector finds a bank account, the collector will be more likely recommend a lawsuit to their legal department.
5. Collections are negotiable; the original creditor has given up and is losing up to 50% on the face value already either by splitting any return or selling at a huge discount. In addition, the costs of a lawsuit although discounted still are a factor in the decision to settle with you.
If you are going to settle mark the check “settled-in-full” at the very top back of the check and include a letter explaining that you are offering a settlement, keep copies of everything.
6. Get written confirmation of any payment plan the agency will accept before making a payment.
7. Specify in writing that all payments shall be applied to principle first.
If you’re ready to throw in the towel, go see a local bankruptcy attorney and explore your options for federal protection. The protection will even look back 90 days from filing, get back money taken by the collectors, and apply it fairly.
If your debt is with the government like the IRS or a State agency or for Child Support or taxes, the rules will be different and you will need a local lawyer at once.
DO NOT use a paid debt settlement service; most of them are scammers. Here are some links to help you with your state & federal rights;
Washington collection agency complaint form: http://www.dol.wa.gov/forms/600006E.pdf
Washington statute regulating collection agencies: http://apps.leg.wa.gov/rcw/default.aspx?cite=19.16
Consumer rights in Washington: http://www.dol.wa.gov/business/collectionagency...
Look for a qualified consumer protection attorney for a low cost or free consultation: http://www.naca.net
You can search the Avvo web site under the Find a Lawyer tab. But always remember to act quickly because for every legal right you have, there is only a limited amount of time to actually file a lawsuit in court or your rights expire (it's called the statute of limitations),
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While a bankruptcy right now would wipe out this judgment for you, you would remain liable on HOA fees going forward. You can see how this could be a problem. I have on several occasions been able to negotiate a deed in lieu to the HOA in total satisfaction of the monies owed. What this does is it gets the property out of your name and frees up the ability to file for bankruptcy. The deed in lieu gives them the ability to rent the property until the bank forecloses so they can recover some of the fees. Not all HOAs will do this however. Now that they have a judgment, you are in danger of having your wages and/or bank account garnished. You should speak with an experienced bankruptcy attorney in your area to see what your options are. It doesn't mean you have to file for bankruptcy. Another thought is to rent the property yourself and allow the HOA the ability to collect the rent in lieu of taking the above-mentioned actions. You have some options but need to have a face-to-face consultation to determine what is best. Good luck.
This answer is for informational purposes only and is not intended as legal advice or to create an attorney-client relationship.
Your most cost efficient solution would be to declare bankruptcy and then rent out the condo until the bank forecloses. The bankruptcy would get rid of the judgment (if chapter 7) or allow you to pay the judgment off over time (if chapter 13). Taking the garnishment means not only are you paying the principal and interest, but the attorney fees which will continue to accrue each time they garnish you.
This answer does not constitute legal advice and no attorney-client relationship is formed through this answer. If you wish to have a free consultation as to your question and my answer, please contact me at your soonest convenience.
Real Estate Attorney
A Deed in Lieu is the best option. You could propose the same to the lender to get the property out of your name with regard to the lender as well. Your attorney should review the judicial foreclosure case file to see if the HOA had attempted to extinguish the Lender's lien, which has been happening regularly since the 2008 real estate crash and the subsequent case law change in favor of HOAs. The case law (Summerville vs. Roughley) changed in part, from a policy standpoint, because Banks were not managing their accounts (i.e., Deeds of Trust on Condos), so, the appeals Court stated that Banks must be diligent and involve themselves in the judicial foreclosure lawsuits that are being brought by HOAs for dues. See about that, if an extinguishment/quiet title was done, that may simplify your situation. Then, deal with the judgment. Settlement, especially for a reduced balance of judgment principal, is of course better than filing bankruptcy, but, be guarded about what financial information you transmit to the HOA/its attorneys.
The above answer is intended for informational purposes and does not constitute an attorney-client relationship.