30 Day HOA Notice

[nioka]

I am waiting for foreclosure to file chapter 7 and I am now in my third month on non payment. Three weeks ago I got a letter from my mortgage company notifying me of future action at the end of thirty days. That ends next week.

Today I got an email from the HOA. It starts cordially, "perhaps it is an oversight...," and then suspends my privileges to include family and friends. It goes on to say that if not paid in thirty days the account will accelerate to an annual billing and a lien will be filed resulting in additional interest and fees. It goes on to include threats of their collection agency.

I love the one paragraph that states all of the deed covenants and restrictions are posted on their website that spells this all out. The funny thing is that when I finished with the settlement on the house I was given a brief on the HOA covenants and restrictions that went like this, "you can read it if you like but it is all standard stuff and nothing to worry about."
Maybe if I got more sleep the night before, or didn't have to drive 150 miles to the settlement, or there weren't so many papers to sign at settlement, or had a buyer's agent who knew what she was doing, I wouldn't be in the mess I am in today. If I knew then what I know now about HOA's I would have never looked at any house in an HOA.
IMO, if our legislators find it necessary to give Fascist power to an HOA then they should also make dam sure that anyone buying into an HOA is well aware of what they are getting themselves into.

I really don't care if the HOA or the mortgage company forecloses. The house has no equity, I have no assets, and my income is protected. I am anxious to get my bankruptcy filed.

[tobee43]

once again you need to care about the HOA it OUT LIVES your bk and you still owe. i don't know how to put this politely to you, but your refusal to understand that the HOA has a superliens:





If you live in a condominium, single-family home, or townhome that is part of a common interest community in Tennessee, you are most likely responsible for paying dues and assessments to a condominium association (COA) or homeowners’ association (HOA). If you don’t pay, the COA or HOA is usually entitled to get a lien on your property that could lead to a foreclosure.

Read on to learn more about COA and HOA foreclosures in Tennessee.

"Tennessee COA and HOA Lien Laws

The Tennessee Condominium Act of 2008 (Tenn. Code Ann. §§ 66-27-201 through 66-27-507) applies to all condominiums created after January 1, 2009, and the provisions discussed in this article also apply to condos created before this date with regard to events or circumstances that occur after this date.

An HOA’s governing documents, which include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and bylaws, will usually contain specific information regarding assessments liens. (You should have received copies of the CC&Rs and bylaws when you purchased your property. Find out more about what's in your association’s CC&Rs and other relevant documents in Nolo’s article Before Buying: How to Read the CC&Rs or Homeowners' Association (HOA) Documents.)
How COA and HOA Liens Work

A COA or HOA typically has the power to place a lien on your property if you get behind in monthly dues and/or any special assessments (collectively referred to as assessments). Generally, once a homeowner defaults on the assessments, a lien will automatically attach to that homeowner's property.
COA Liens

In Tennessee, a COA is entitled to a lien for assessments or fines from the time they became due. If an assessment is payable in installments, the lien amount is equal to the full amount of the assessment from the time the first installment became due (Tenn. Code Ann. § 66-27-415(a)(1)(A)).

The recording of the COA’s governing documents constitutes record notice and perfection of the lien. The COA doesn't have to record the lien for assessments (Tenn. Code Ann. § 66-27-415(d)). (In some states, the association must record the lien.)
HOA Liens

If you are part of an HOA, check the CC&Rs to learn about the association’s right to place a lien on your home if you don’t pay the assessments.
Charges the COA or HOA May Include in the Lien

State law and the COA or HOA’s governing documents will usually set out the type of charges that may be included in the lien. In Tennessee, unless the declaration provides otherwise, a COA is permitted to include the following in its lien:

past due assessments
late charges
reasonable fines for violations of the declaration, bylaws, rules, and regulations (after giving the owner notice and an opportunity to be heard)
certain fees (for example, for the preparation and recordation of amendments to the declaration), and
interest (Tenn. Code Ann. § 66-27-415(a)(1)(D)).

To find out which charges a Tennessee HOA may include in its lien, check the association's governing documents.
Lien Priority

Lien priority determines what happens to other liens, mortgages, and lines of credit if your COA or HOA lien is foreclosed. (To learn more about lien priority and its importance in HOA foreclosures, see What happens to my mortgages if the HOA forecloses on its lien?)

In Tennessee, a COA lien is prior to all other liens, except for:

liens and encumbrances recorded before the COA records the condo declaration
real estate tax liens (and other governmental assessments or charges), and
a first mortgage or deed of trust on the condo that was recorded before the delinquency date of the assessment (Tenn. Code Ann. § 66-27-415(b)).

HOA CC&Rs often address lien priority, and typically state that HOA assessments and liens are subordinate to a first mortgage or deed of trust. To find out the priority of an HOA lien in Tennessee, check your CC&Rs and bylaws.
COA Super Liens

Under certain circumstances, a COA lien for delinquent assessments may have priority over a lender’s first mortgage or deed of trust. This is called a super lien. In Tennessee, six months worth of delinquent common expense assessments have super lien status (Tenn. Code Ann. § 66-27-415(b)(2)). (Learn more in Nolo’s article Homeowners’ Association Super Liens.)
Requesting a Statement of Unpaid Assessments from a COA

If you make a written request to the COA, the association must provide you with a statement of the amount of unpaid assessments within seven days after receiving the request (Tenn. Code Ann. § 66-27-415(h)).
COA and HOA Foreclosures in Tennessee

If you default on the assessments, the COA or HOA can foreclose. A common misconception is that the association cannot foreclose if you are current with your mortgage payments. However, the association’s right to foreclose has nothing to do with whether you are current on your mortgage payments. (Learn more about HOA liens and foreclosure.)"
COA Foreclosures

In Tennessee, a COA lien may be foreclosed:

judicially (by filing a lawsuit) or
nonjudicially (if permitted by the COA’s governing documents and so long as the COA gives proper notice of the foreclosure to the unit owner.) (Tenn. Code Ann. § 66-27-415(a)(1)). (Learn more about judicial v. nonjudicial foreclosures and general foreclosure laws and procedures in Tennessee.)

HOA Foreclosures

To find out about an HOA’s right to foreclose if you become delinquent in paying the assessments, read your CC&Rs and bylaws.
Statute of Limitations for COA Liens

A COA must start the foreclosure within six years after the full amount of the assessments becomes due otherwise the lien is extinguished (eliminated) (Tenn. Code Ann. § 66-27-415(e)). This is called the statute of limitations.
What to Do if You Are Facing Foreclosure by a COA or HOA in Tennessee

If you are facing a COA or HOA foreclosure, you should consult with an attorney licensed in Tennessee to discuss all legal options available in your particular circumstances."

exempt funds or not if Tennesse is a superlien state it outlives the bk. period. it will come back to haunt you.

[justbroke]

I am waiting for foreclosure to file chapter 7 and I am now in my third month on non payment. Three weeks ago I got a letter from my mortgage company notifying me of future action at the end of thirty days. That ends next week.

Most people file bankruptcy when they are at the worse part of their financial life, and do not wait for foreclosure. Waiting for a foreclosure first, is a strategy and you must deal with everything that comes with that strategy. The things that typically come with waiting for a foreclosure on your home, which may not even come by the way, includes escalating collections, increased fees, dunning, and maybe even a judgment against you. I just hope that you understand what comes with this particular strategy.

The "wait" strategy may also save you from future HOA assessments which is the only reason anyone should (probably) wait for foreclosure.
You have to leverage that with a few things, including whether the HOA assessments are less than rent, and by filing you just pay the assessments until a foreclosure occurs (by the HOA on the pre-petition dues or bank on the mortgage arrears).

Have you talked to 3-5 attorneys about your strategy? You are getting frustrated by the process that is going on (especially with the HOA), but this is exactly what comes with waiting for foreclosure.

[nioka]

tobee43

I appreciate your posts. However I don't think you fully understand my intentions of surrendering my home. I really don't care whether the HOA or bank forecloses.

Secondly, I have several threads on this subject and the majority of of the posts at this forum stated, that if I plan to surrender the house there is no point in paying the HOA dues/fees/fines,etc.
Third, I had three local attorney consoles all of who stated that the HOA costs prior to my bankruptcy would be included in the bankruptcy discharge. Now they did tell me that I would be responsible for HOA costs going forward from my discharge until such time that my house ownership has transferred. I understand that the HOA lien will survive, but they won't be collecting from me.

Last, but very important, is that I am a senior with no assets. My income is protected. Three attorneys have told me not to worry about paying HOA fees going forward after my bankruptcy because there is absolutely nothing the HOA can do to collect from me. Again, I am a senior and will never buy another house.

Again, I WANT THE HOA OR BANK TO FORECLOSE.

"I really don't care if the HOA or the mortgage company forecloses. The house has no equity, I have no assets, and my income is protected. I am anxious to get my bankruptcy filed." This is the last line from my original post.


"i don't know how to put this politely to you, but your refusal to understand that the HOA has a superliens:" tobee43

I fully understand that my HOA has a superlien power and that I am in a non judicial foreclosure state. The general manager of the HOA I am in stated to me while defining the powers of the HOA, "we are above the law, we make our own rules and regulations, and can enforce them as we see fit." An attorney I spoke with confirmed his statement.

I fully understand that my HOA can foreclose. Please understand, I WANT THEM TO FORECLOSE.


In this thread I did not ask any questions or advice. My intention was and is to provide a sort of journal of the events of my foreclosure and bankruptcy so that others might gain some idea of what they might expect. The subject of this thread was receiving a thirty day notice from the HOA. This letter follows my post of the bank's thirty day notice three weeks ago. I wonder who will foreclose first.

Thanks for you concern.

[tobee43]

you need to understand what exacting "surrendering" legally means in a bk situation. it means that the creditor IF THEY (the lender) CHOSE, they can take the property. it doesn't mean you are giving it back to them, you are just making it available to them if they want.

they never have to take back your house because you marked surrender on your petition. (i am living proof of that after coming on 5.5 years chase never took back our house, nor foreclosed). so, please do not think that surrendering will help you with your intent. it's great and i hope your bank jumps in and claims your collateral puts it on the market and it sells and it goes great. i'm just warning you, surrender means just making it available to the lender IF and only IF they want it.

[justbroke]

nioka, it is frustrating for sure! I think tobee is living proof that sometimes, no one wants to foreclose and you have a property sitting around for over 5 years with absolutely no movement.

I wish I had some suggestions for you. In some cases, debtors have been able to work with their HOA to get the HOA to foreclose, in an effort to force the bank to foreclose. Until either of them forecloses, your life is in limbo. Luckily, you are collection proof but remember that you are not judgment proof.

I do wish it was back before 2005 when many HOA CC&Rs were considered nothing more than "contracts" and the BK court would allow rejection of the contract and you would no longer need to pay post-petition dues either!

[LadyInTheRed]

toobee, Nioka plans to wait until after either the bank or the HOA forecloses before filing BK. So, there will no longer be an asset to surrender or post-petition HOA fees. Nioka used the term "surrender" in the context of letting the HOA or bank foreclose instead of making payments.

Nioka, I am glad you started this thread to record the progress of the foreclosures. But, please understand that in a forum like this, people will offer advice whether or not you asked for it. If you don't want the advice, just ignore it and move to the next post. Also, not everybody will have read your other threads and remembered the details of your situation.

Just to prove my point about advice, I'm going to offer some. Wasn't it you whose HOA fees are only $100 a month? That's really cheap rent. If you are anxious to file BK, why not file and continue to live there and pay post-petition HOA fees? It could be years before anyone forecloses. They are sending the notices in hopes that you will pay. That doesn't necessarily mean that they are going to move forward with foreclosure any time soon.

[nioka]

tobee43,

I have never done anything like this before and therefore am relying on the wisdom and experience of others that is backed by legal advice from attorneys.

Yes I do understand what surrender means. If I am forced to file prior to foreclosure I will have the current HOA fees discharge and pay those fees going forward. It's cheap rent.

The history of my mortgage holder is slow. I hope that the HOA will be the first to foreclose thereby forcing the bank to foreclose. However, I have been advised that in situations where there is an upside down mortgage the HOA are reluctant to foreclose.

I have read many situations such as yours but also read of foreclosures that have been right on the timeline. There are so many variables it is impossible to predict.


Justbroke,

As always I appreciate you posts. Yes I agree that what I am doing is a balancing act. I have read every sticky here, read every post directed at me and others in my situation, spoke with attorneys. I also realize that I must be alert to the actions of the CC's I am dealing with. I also realize that I can only accumulate exempt property up to a point. TN allows $10k.

If I must file chapter 7 prior to foreclosure I will gladly pay the HOA fees going forward after my discharge. However, the HOA I am in has a bad history and has been investigated by the state attorney general that resulted in a fine of 2.5 million. I am not sure if the HOA would allow me to pay the dues going forward.
This brings me to the point of what one attorney told me. 'You have no assets, no money, your income is bulletproof, and so, there is nothing anyone can do to you to collect a dime.'

While I do find waiting frustrating I was also in the military where the motto was "hurry up and wait." I have had lots of practice.


Feb 16th will soon be here and that is the date the bank has given me before they take action.

[nioka]

I posted this yesterday.

"Today I got an email from the HOA. It starts cordially, "perhaps it is an oversight...," and then suspends my privileges to include family and friends. It goes on to say that if not paid in thirty days the account will accelerate to an annual billing and a lien will be filed resulting in additional interest and fees. It goes on to include threats of their collection agency."

Today, the following day, I got a letter from their collection department.

I never knew thirty days could go by so quickly. Perhaps the HOA will be first to foreclose.

[justbroke]

If I must file chapter 7 prior to foreclosure I will gladly pay the HOA fees going forward after my discharge. However, the HOA I am in has a bad history and has been investigated by the state attorney general that resulted in a fine of 2.5 million. I am not sure if the HOA would allow me to pay the dues going forward.
This brings me to the point of what one attorney told me. 'You have no assets, no money, your income is bulletproof, and so, there is nothing anyone can do to you to collect a dime.'

This is a point I made earlier about unprofessional HOAs that end up paying more in sanctions and fines by doing silly things. The downside is that the membership is sometimes hit by a "special" assessment because the HOA took actions that were either inconsistent with the CC&Rs or law.

I am currently paying only my HOA assessments since converting (back in 2010 and discharged in 2010). I do need to remind them from time to time that they can't apply my payments directed for and towards post-petition dues, to pay for discharged debt. That itself is a balancing act as well. I can tell you that it is frustrating, but they have not taken any action against me.

[bcohen]

I posted this yesterday.

"Today I got an email from the HOA. It starts cordially, "perhaps it is an oversight...," and then suspends my privileges to include family and friends. It goes on to say that if not paid in thirty days the account will accelerate to an annual billing and a lien will be filed resulting in additional interest and fees. It goes on to include threats of their collection agency."

Today, the following day, I got a letter from their collection department.

I never knew thirty days could go by so quickly. Perhaps the HOA will be first to foreclose.

So let them "accelerate" the account, and place a lien on the property. When the mortgage holder eventually forecloses, their lien will be extinguished, and the HOA won't get jack sh**. It sounds like that's exactly what they deserve, considering how they've treated you.

[Drazil65]

Maybe if I got more sleep the night before, or didn't have to drive 150 miles to the settlement, or there weren't so many papers to sign at settlement, or had a buyer's agent who knew what she was doing, I wouldn't be in the mess I am in today. If I knew then what I know now about HOA's I would have never looked at any house in an HOA.

This is why is it advised that all real estate purchasers always hire an attorney for closing. Someone to represent your best interest and be there on your behalf to read over and explain all the paperwork. Whether you did have an attorney or not you have a nickel in making sure you understand everything you are signing. That being said, we filed and surrendered our out of state home in December 2011.

This home is in Ohio (a judicial state), it was one of the main reasons we filed to begin with. We WANTED the bank (BOA) or the HOA's to foreclose. We stopped making all payments including the HOA's. Once discharged in March 2012, we purposely did not to make the HOA payments (obviously we did not live there and it was a rental property but it was vacant at the time) to hopefully force someone to start the foreclosure process.

BOA started the process but then sold the loan to another servicer that promptly withdrew it from the process as they tried to get us to look at a modification (this was about 6 months into the process). At that time we contacted the HOA attorney office as they had been sending us letters and told her to proceed with foreclosure. She was somewhat surprised but agreed and started the process. In the mean time the 2nd servicer sold to another and they tried to get us to modify, we told them not interested please foreclose, they sat on it and continued to send us modification packages.

The HOA proceeded to foreclose with our blessing and actually got it on the auction list last June, unfortunately it was a no bid (the current bank did not even bid on it to protect their collateral) so it remained in our name. The HOA really did not want to own it as they told us but they were trying to get the bank to bid it and pay them off to clear title. So we told them to start the foreclosure process again. In the mean time I did some research in the area and was able to find out about an investor that had purchased a couple of the homes in the area last year and flipped them. I called the investor and emailed all the info and told him that the HOA's were going putting it back up on the auction list again. This was last October.

It went back up for auction on January 31st, 2014 and the investor purchased it. The deed should change hands by the end of this month (30 day confirmation period) and it will finally be out of our name at that point. So, we are a success story in getting the HOA's to foreclose but it took over 2 years and probably would have been a lot longer had I not been so proactive in pushing it along. Whether this helps you or not with your plight I don't know, but I agree with all the other posts that it could be a very long while before it is out of your name. We took a very big chance with the HOA's and had to help the situation along to pretty much make sure the home was purchased the second time they listed it at auction. Good Luck with journey.

[tobee43]

thank you lady i have been reading many of these posts.

tennessee is both judicial foreclosure and a non judicial state. as well as a deficiency state i know many wait until the last moment. this makes no sense when and if dealing with an HOA which will outlive the bk. if your lender decides to use the judicial method even if the HOA files to foreclose it will still take some time, however, since the tennessee legislature adopted this "New Foreclosure Deficiency Law" which is pretty cool for those that are just going through foreclosure as opposed to filing after the foreclosure. sounds like they have trended to lean towards using the judicial process more often, which means you can stay and pack it away. i know many people that waited for their foreclosures to complete prior to filing so they could make certain no one will go after them for the deficiency. however, again, the HOA's and i do it daily keep adding fees, fines, interest and all of it hate to say it's part of my job. for those hoa's i do this to force the banks to move or the hoa's will owe the houses, as here in florida the banks have moved to slowly leaving vacant homes and hurting their communities. now the reason i push the HOAs into this is to go after the banks or these HUGE property companies buying up all these properties NOT THE OLD OWNER. it's the buyers responsibly to obtain a clear title, which here in florida they are selling these places on the court house steps and these new owner could care less about any liens. the counties are NOT suppose to do this, the homes should pass through with clear title, but the counties are lazy and although the liens are filed they do not make the new owners clear the liens. so, we push, get the new owner, whack them with the max allowed in fines, fees, interest daily until the new owner pays off the liens to the hoa's. i am hoping this will start a trend and the hoa's will stop going after the old owners. it's working here for the six hoa's i work with.

i like this:

'Tennessee Legislature Adopts New Foreclosure Deficiency Judgment and Notice Statutes

June 8, 2010

On June 2, 2010, Governor Bredesen signed into law Tennessee's new foreclosure deficiency statute, which drastically changes the law for determining the deficiency judgment a creditor may recover after a foreclosure sale pursuant to a deed of trust. The new statute, effective September 1, 2010, applies to foreclosures of both residential and commercial property and is a major change to existing Tennessee law.

Previously, the foreclosure sale price obtained ata regularly-conducted foreclosure sale determined the amount of credit to be applied to the loan balance unless fraud or similar misconduct contributed to a lower sale price. The amount of a deficiency judgment was based on the difference between the loan balance (including cost for foreclosure) and the foreclosure sale price.

The new statute allows a borrower to challenge the foreclosure sale price, for deficiency purposes, based on the "fair market value" of the property at the time of the foreclosure sale. The statute provides that the foreclosure sale price is presumed
to be the fair market value, but the presumption can be overcome if, by a preponderance of the evidence, the debtor establishes that the property sold for an amount materially less than the fair market value of the property at the time of
foreclosure. If so, the amount of deficiency wold be the total amount of the indebtedness less the "true" fair market value of the property at the timeof the sale as so established. The statute does not provide definitions of "materially less" or "fair market value."

In addition, the statute contains a limitation of two years after a foreclosure sale within which alender can institute a legal proceed
ing to recover a deficiency.

Tennessee’s General Assembly also amended the state’s foreclosure statute to require the sending of a Notice of the Right to Foreclosure to a borrower at least 60 days prior to the first publication of a foreclosure notice. The amendment is effective July 1, 2010, and applies to foreclosures published on or after September 1, 2010. Information required in the Notice is specified in the statute, which includes availability of federal loan modification programs and contact information for federal
agencies."

[nioka]

"tennessee is both judicial foreclosure and a non judicial state. as well as a deficiency state i know many wait until the last moment. this makes no sense when and if dealing with an HOA which will outlive the bk." tobee43

I have gotten a lot of advice on this subject and all agree to hold back filing. This has been supported by the attorneys I spoke with and several lawyer run websites.
Quoting from one on the subject of foreclosure within an HOA:

"Wait to file bankruptcy until a foreclosure sale date is scheduled. Putting as much of the debt as possible into the pre bankruptcy period reduces the likely post bankruptcy period for which you are liable."

Another reason for holding back is that in some casesHOAs have been known to become extremely aggressive attaching special assessments and other fees after a HO has a BK discharge.

I do understand that an HOA lien will survive a bankruptcy. However, who will pay it? Doesn't the entity who buys the property at a foreclosure auction become responsible? Secondly, for those, like myself, who have no assets and protected income any attempt to collect by an HOA or other collection agency is futile. (The exception being federal and state debt, child support, and similar debts).

Drazil65,

Wow, that's some story. I agree with you about a lawyer. Ain't hindsight grand? Big mistake not have a lawyer on my part.

bcohen,

Thanks for your support.



Today I received a modification package from my bank. They are giving me ten days to respond.

[tobee43]

if you file before your foreclosure and you listed on your petition and what you state really makes not a bit of sense. when a home is listed on a bk and as you are doing which is surrendering it you simply are not liable period. however, until your state has a different law in reference to the HOA it will out live the bk. period.

i lived it so i know, again some banks never foreclose, like mine.