HELP PLEASE! Summary Judgemnt granted to HOA for forclosure - all for imposed unreasonable attorney's fees! CAN I APPEAL?

Asked about 2 years ago - North Miami Beach, FL

My mother has a condo in Florida. Apprx 5 mnths ago- she was a couple mnths behind in maintanace fees due to major water leak in walls in condo- for past 2 years- condo refuses to fix walls & she wound up w/ black mold. Condo unliveable, & had to rent somewhere + keep up w/ her condo at the same time. Then HOA attorney sued for attrny fees & was granted Sum. Judgmt for foreclosure!! We had filed an answer to the suit w/ afirmative defenses (attorney falsly claiming her maintance not paid & attrny has ''unclean hands' in his claims'. She has copy of checks paid for fees up to date, proof). We sent a motion for continuance, also w/ request for time to respond to the um. Judgmt. Judge denied? Can we apeal. Or- what to do? The judgmt was 2 weeks ago. RUnning out of time! Thank U!!

Additional information

BTW- This home has been in her family for over 40 yrs. Some of the condo board members have mentioned wanting her condo previously- and I really think this was set up to steal their home. It sickens me. It truly is robbery! And they have been deceitful in their lawsuit- but the judge didn't give my mother a chance to defend. He hastily granted summary judgemnt to the HOA w/ absolutely no regard or entitle my mother to defend w/ genuine issues of fact!! I need help desperately to help my mother, as I know there is little time to act.
Thank you again for any suggestions/guidance/knowledge! :)

Attorney answers (3)

  1. Margery Ellen Golant

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    Contributor Level 20

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    Answered . It is difficult to say anything specific about the issues you raised without more information, particularly the association documents, which will delineate who is responsible for repairing what in a condo. Likewise the defenses and affirmative defenses you raised may or may not have been sufifcient, since if the association was not legally obligated to repair the leak, that would not be an issue that would preclude summary judgment.

    While I understand the economic considerations, it is unfortuante that you tried to defend on your own. While it is difficult to tell if the judge made any errors, that certainly can and does happen. However, on appeal, the appellate court is limited to considering the record from the lower court, so if th ere were things you should have said or presented but did not, the appellate court will never be able to know about them. Likewise, what occurred at the hearing can only be looked at by an appellate court if there is a transcript of the hearing, and if there was no court reporter there, whatever occurred at the hearing is not reviewable by the appellate court, so complicating your position further.

    Again, we here do not know what happened and what material there may be to work with on appeal. You should consult an experienced foreclosure defense attorney to obtain specific advice regarding any remaining defense potential of your case. Depending on all the details, it may be possible to successfully raise the issues you are asking about, and it may very well be possible to put on a viable defense to foreclosure perhaps relating to issues you are not even aware of. However, while people are allowed to represent themselves in court, it is a huge mistake to try. In order to do this effectively, you should obtain the services of knowledgable foreclosure litigation counsel. This is not something that even most attorneys know how to do. We have quite a few clients who are themselves attorneys, yet have come to us for help because they understand this, and realize that in order to have a chance against the "big guys" they need really qualified people to help them. Doing this properly is very difficult and detailed work. It is a very specialized area of law which most attorneys do not fully understand, and there are few if any consumers who would be able to put together any sort of
    viable defense. I am puzzled at why any non-attorney would think he or she could successfully handle a litigated matter without an attorney highly qualified in the area of law in question. This is comparable to doing delicate surgery yourself or a loved one if you are not a surgeon. The law is very complex, litigation rules and procedures are very complex, the strategic considerations are very complex, and the area of foreclosure litigation is something even most attorneys know nothing about as explained above. Every case is different, what might be possible in this situation would depend on the exact details and legal issues in your case. Only a really qualified foreclosure defense will know how to even figure out what those are. An attorney who reallyunderstands how this works needs to hear all the details.

    If you care how this turns out, I urge you to find an experienced attorney who is knowledgable about
    foreclosure defense to represent you. I see pro se people in court all the time. It is sad and frustrating to me - they are lost, cannot possibly know enough to be effective, and of course, they get walked all over, even when their issues are "winnable".

    Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-... more
  2. Barbara Billiot Stage

    Pro

    Contributor Level 19

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    Answered . Unfortunately a lot of homeowners end up in this situation because they do not realize that once you get behind in assessments any money remitted goes to pay attorneys' fees, interest and late fees first. The assessments, by statute, are paid last.

    Florida also does not recognize any defense to not paying assessments. This is because the association is a non-profit organization and their only income is from assessments. The association cannot waive attorneys' fees because if they do then that means your neighbors are paying for the legal fees you created by not paying.

    The condo association probably did not fix the walls because they were not required to do so. Most condo associations are only responsible for the outer walls and anything inside the walls that is shared. If the pipe that burst serviced more than one condo, they might be liable, but if the pipe was servicing just your mother's condo, then you mother is liable for the repairs. Either way, the association is rarely liable to replace the sheetrock.

    It's an unfair system created by developers. It sounded like a good idea in theory, but it has a lot of problems.

    Your mother's only options at this point are to pay the judgment in full or, if she has income, file for a Chapter 13 bankruptcy and put the judgment into repayment spread over five years.

    She should hire an attorney who is familiar with bankruptcy and association liens.

    This communication is not intended to create an attorney/client relationship. It is always recommended you consult... more
  3. Margery Ellen Golant

    Pro

    Contributor Level 20

    Answered . P.S. I do agree that it would be worth looking into Chapter 13, but she needs to hurry. If she is otherwise a good Chapter 13 candidate, a Chapter 13 filing would stop the foreclosure and allow her to pay the total due to the association in equal monthly payments over 60 months.

    Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-... more

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