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I have received summons from HOA past due fees+. I have some affirmative defenses written down. Could you please advise?

Yorba Linda, CA |

Affirmative Defense

1. Failure to Mitigate Damages
Property was foreclosed by the bank, Aurora Loan Services, on 11/2009.
Plaintiff failed to pursuit of the property prior to bringing any action against the person
(debtor) personally according to California Code of Civil Procedure 726(a)
The bank, Aurora Loan Services, is responsible to pay.
If necessary, I seek Judge's permission to sue the bank.

2. Act of God
Defendant had 3 investment properties. One property, not listed in Summons, was lost in
fire on 11/2008 which caused the domino effect of financial hardship.
Loan modification was not granted for any of properties. Defendant lost all properties in
foreclosure. Defendant is in danger of loosing primary residence.

Thank you!!

+ Read More

Attorney answers 3


I don't think your affirmative defenses will succeed.

Realize that your HOA dues are due regardless of what your lender on your mortgage does, and in many cases, the HOA dues have recorded their Deed of Trust before the bank, so their lien has priority. Your bank isn't obligated to pay your HOA dues, so a suit against the lender won't get you anywhere.

Your finanical hardship isn't a defense either, and it's unclear from your statement about foreclosure applies to "all" properties, including your primary residence.

Is bankruptcy a viable option? It would at least buy you some time, so depending on your other debts, you might want to see a bankruptcy lawyer for help.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.


An affirmative defense is a fact that is outside the complaint that defeats the allegations in the complaint. For example, a statute of limitations is an affirmative defense to a perfectly alleged contract complaint if the complaint was not filed within the limitation period.

It does not sound like the defenses you described are affirmative defenses.

Good Luck.

Jeffrey Whitcomb
Whitcomb Law Firm, Ltd.


Neither of these are valid affirmative defenses.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

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