If the HOA is moving for foreclosure and never served the mortgage company with the complaint, can that case be dismissed?

Asked over 2 years ago - Lake Mary, FL

homeowner fell into hardship made payment arrangements based on Motion for Summary Judgement that would have been paid in one year...received a stipulation a few months later for almost $11K more than the amount in the Motion. Owner is no longer on title. transferred title into trust. Can they still foreclose?

Attorney answers (4)

  1. Jeff Tomberg

    Contributor Level 14

    4

    Lawyers agree

    Answered . you need to have a lawyer review this with you as you mention various documents and at least 2 lawsuits that would require a lawyers review.

    first as to whether the HOA can foreclose without joining the superior lienor the first mortgage holder the simple answer is yes. they do so without impairing the rights of the lender and anyone purchasing the property at the foreclosure sale with the HOA takes subject to the mortgage.

    second the transfer of the property could be in violation of the HOA requirements that it be preapproved by the HOA but regardless the subsequent transferee you refer to as a trust would be subject to the foreclosure as from the facts you given the transfer was made after the foreclosure suit or lien by the HOA was filed. thus the trust is in no better position than the homeowner

    without a detailed review by a lawyer can all the issues raised in your question be appropriately addressed...... more
  2. Margery Ellen Golant

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . Yes they can still foreclose, and no, the HOA does not have to serve the mortgage company wiht the Complaint. Completion of the HOA foreclosure will extinguish the owner's interest as well as that of the trust, but will not affect the rights of the mortgage creditor.

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

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . It sounds like you received a settlement agreement or a stipulated settlement agreement. The amount would be higher because of fees the law firms charge to handle payment plans, which are typically really high and unregulated by any laws.

    This communication is not intended to create an attorney/client relationship. It is always recommended you consult... more
  4. Christopher Sprysenski

    Pro

    Contributor Level 4

    1

    Lawyer agrees

    Answered . Presumedly, the homeowner's association is a "junior" lien holder, in that their lien was recorded after the mortgage on the home. Florida law states that a "senior" lien holder is not a proper party to a junior lien holder's action. As such, the homeowner's association need not name the mortgage company in its lawsuit for foreclosure, and may proceed with the foreclosure action.

    As to the second part of your question, you would need to see an attorney to review the documents that were signed, and advise you accordingly.

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