HOA LIEN FORECLOSURES
Just as in residential foreclosure, HOA liens can be foreclosed upon, which is an enforcement of a security interest by judicial sale of collateral. All association liens shall be foreclosed as a matter of equity.
Homeowners’ Associations (HOAs): In Florida, HOAs are a corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners, their agents, or a combination thereof. Membership in the HOA is a mandatory condition of parcel ownership. The HOA is authorized to impose assessments that, if unpaid, may become a lien on the real property. The term “homeowners’ association” does not include a community development district or other similar special taxing district created pursuant to statute. §720.301 (9), Fla Stat.
Claim of Lien: The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process. § 720.3085 (a), Fla. Stat.
Member: means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.
HOAs can begin foreclosure actions in the event that a member is in default or if a member fails to make payments and/or special assessment payments. The HOA is required to provide Notice of Late Assessment which is a 30-day notice. Afterward, the HOA provides a Notice of Intent to Record a Claim of Lien. This is a 45-day process. Once the Claim of Lien & Delinquent Assessment Notice have been made, the HOA may then move to order Foreclosure Title Commitment and order Municipal Lien Search.
HOAs rights come from the By-Laws, Declarations and Amendments of the HOA. By statute, it is §720.3085, Fla. Stat. which states: Payment for assessments; lien claims.—
(1) When authorized by the governing documents, the association has a lien on each parcel to secure the payment of assessments and other amounts provided for by this section. Except as otherwise set forth in this section
Parties to the HOA foreclosure action include the Plaintiff, which is the HOA as of the date of filing suit and the Proper Defendants. Proper defendants are identified as (1) the owner (member) of the fee simple title, (2) Jane and John Does unknown tenants in possession, and/or (3) judgment lien holders.
Also as in residential foreclosure, the process requires filing of a Foreclosure Complaint and Notice of Lis Pendens. Defendants have built-in protections through the Fair Debt Collection Practices Act (FDCPA) which was established to eliminate abusive debt collection practices by debt collectors. Service of Process is essential to satisfy personal and subject matter jurisdictional requirements.
Assuming everything in the process is correct and accurate, a Summary Judgment may be filed. This is a lengthy document that tells the story of the situation. It lays out for the Court the legal standards and burdens of proof for each party. This highly persuasive document explains why foreclosure is appropriate by pointing to documents or affidavits filed within the court. A Response to the Summary Judgment will set out any arguments against foreclosure by attempting to establish the existence of material fact and question the legal sufficiency. After both are filed, a hearing takes place and oral arguments for and against foreclosure are made before the Court makes a Final Judgment of Foreclosure. Affirmative defenses commonly raised include:
Fla. R. Civ. P. 1.510:
(b) Time to File a Motion. A party may move for summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. The movant must serve the motion for summary judgment at least 40 days before the time fixed for the hearing.
(5)Timing for Supporting Factual Positions. At the time of filing a motion for summary judgment, the movant must also serve the movant’s supporting factual position as provided in subdivision (1) above. At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant’s supporting factual position as provided in subdivision (1) above.
Post Judgment Caveats involve any possible bankruptcy, deficiency judgments and subordination to the mortgagee. A bankruptcy will enjoin proceedings against the debtor and the property.
After the Court makes a Final Judgment of Foreclosure, the property must then be sold by means of judicial sale. Scheduling the Judicial Sale Procedure involves providing a Certificate of Sale, allowing for filing of any Objection to Sale, and given the tests, making a determination which may vacate the sale.
The Post-Sale Issues mostly revolve around Certificate of Title and Right of Possession