Many homes in Florida are subject to the governance of a homeowner’s association (HOA), which requires the homeowner to pay dues and fees (collectively known as assessments). Even if a homeowner hasn’t fallen behind in paying the mortgage, failing to pay HOA assessments can result in the HOA attaching a lien to the property and pursuing foreclosure proceedings.
Too often, homeowner’s rely on a false impression that an HOA does not have the power to foreclose on a home if the homeowner has not defaulted on mortgage payments. This is not the case. In Florida, an HOA can file a lawsuit to foreclose its lien, just like mortgage lenders do. After an HOA files to foreclose, the homeowner has just 20 days after being served to respond to the court action. If nothing is filed with the court in this time frame, the HOA can request a default motion, which accelerates the case and can result in an automatic win for the HOA.
If your HOA has filed for a default motion against you in a foreclosure case, you need to retain an attorney immediately. Unfortunately, default motions can be an uphill battle in foreclosure cases and need to be handled by an experienced real estate attorney. In some cases, an attorney may be able to file something quickly to delay a default judgment, but this is not always possible.
Seeking advice from a real estate attorney early on in the foreclosure process is vital to ensure you have as many defenses available to you as possible. For example, the homeowner might be eligible to serve and file with the court a “qualifying offer” to pay all amounts secured by the lien for the HOA to consider. In most cases, the HOA will accept the qualifying offer so that the debt will be paid. Even if the HOA rejects the offer, filing a qualifying offer temporarily postpones the foreclosure action, buying you a little more time.
Other options an experienced foreclosure attorney may be able to pursue include challenging the timing of the foreclosure action or the validity of the assessment lien. If you argue the HOA assessment lien is invalid as a result of incorrect accounting or unreasonable charges, the HOA is required to show how all amounts were calculated, including assessments, late fees, interest, fines, and costs, all of which must have a reasonable basis provided for in the HOA’s covenant.
If your HOA has filed to foreclose your home, a real estate attorney will be able to assist you in mapping out a plan for your specific case. Timing is crucial in foreclosure actions; the earlier you seek legal advice, the more defenses you may have available to potentially save your home.
Stephen K. Hachey, a Florida real estate attorney, can help your wade through this process and determine a positive solution. Contact him at 866-200-4646.
The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.