Monday, October 19, 2015

Active duty sailor loses home to unpaid HOA fees

Here we go again:

"JACKSONVILLE, Fla. -- The home Mark Bryant purchased in 2006 is modest but he loves it. "I worked real hard for my house," he said. While stationed at Mayport, the gunner's mate purchased the house in the Creekside subdivision with hopes of returning to Jacksonville when he retires.  "Now it is being taken away from me due to a wrongful foreclosure," he said. Bryant is still active duty in the Navy, stationed in Virginia. He lost his home because of $750 in unpaid homeowners association fees. "It has been stressful," said Bryant. How did this happen? His documents show he was stationed in Bahrain during the two years the fees went unpaid -- 2012-2014. Bryant said he was never notified. Court records show an unnamed woman was served in Virginia at a previous address. Bryant said the unnamed woman in the record is not his ex-wife. "When I got back from deployment October 2014," said Bryant, "there was an eviction notice on the property, and that is the first time me actually knowing." The HOA fees went from $750, but when you add interests, late fees, court costs, attorneys fees, it jumped to $4,734.03. The property was foreclosed and sold for $10,300."


robert @ colorado hoa . com said...

Cue the outrage from the "We Support The Troops" pundits and politicians in 3, 2, 1, . . .

* sound of crickets chirping *

IC_deLight said...

He could sue under the SCRA to have the "foreclosure" declared void. Some HOA attorney falsified documents when filing a declaration that he wasn't active service during prosecution of the judicial foreclosure suit. He should also consider the FDCPA or a state debt collection law for the value of the property. The FDCPA was deemed to apply to Florida HOAs around 2002.

robert @ colorado hoa . com said...

"He could sue under the SCRA...He should also consider the FDCPA"

According to the story, GM1 Bryant was "unable to pay an attorney" to vacate the foreclosure, and that "he needs legal help to win his case".

This just reinforces something that Professor McKenzie said on Shu Bartholomew's radio program five years ago:

(00:22:48) It's like something you would see in Nazi Germany or Soviet Russia. People think these things don't go on. But we know they go on every day in condo and homeowners associations. These people who have no idea how to use power at all. They won't even accept limits on their power. They don't even know what the law requires of them, these directors.

They go by what some lawyer tells them to do, which the lawyer tells them to do only because he or she knows they can get away with it. Because the only recourse you have is some civil suit. Here in Illinois, we don't have an Ombudsman. Most states don't. There's nowhere for owners to turn.

If the lawyer tells them "Oh, just jack 'em around. Who cares what the rules are? Who cares what the law says?" it doesn't make any difference. The transaction costs of enforcing an owner's rights are so great that they are hardly ever able to do it.

As far as I know, nobody was was ever prosecuted for violating the S.C.R.A. for stealing Michael Clauer's (fully paid-for) house. And as Fred Fischer asked back then, "If, ...The homeowners' association's lawyer filed an affidavit wrongly claiming that neither of the Clauers was on active duty… Then why do the Clauers have to spend a gazillion dollars to correct the consequences of a false accusation by others ? Why isn’t the association attorney voluntarily going before the courts and spending his money seeking to declare the foreclosure null ?" Same with Petty Officer Bryant.

Regardless of the outcome, stories like this -- along with the flag cases and xeriscaping cases, etc. -- illustrate that statutory and regulatory protections for home owners are ineffective, because H.O.A. corporations act as though there is no need to obey the law. And there really isn't, because the corporations' directors and managers and attorneys are never held accountable. If Bryant does get his house back under S.C.R.A., the apologists for H.O.A. corporations will just claim "no harm, no foul" as they did in the Clauer case, and cite it as evidence that "the system works, there is no problem, therefore nothing needs to be done". In the end, the only people who are regularly penalized are the individual home owners, often suffering the most draconian and cruel and unusual punishments, sometimes for the most trivial of reasons.

Until the perverse incentives and moral hazards and unconscionable imbalances of power inherent in the current H.O.A. regime are eliminated, the situation for home owners will only continue to deteriorate, no matter how many laws are passed. But whatever it is that passes for an H.O.A. reform movement in this country doesn't seem interested in affecting any real change.

robert @ colorado hoa . com said...

And here's another one that I just learned about, from attorney Barbara Billiot Stage at her "Condo & HOA Law" blog (via Ward Lucas):

"And let’s not forget the Higgins v. Timber Springs case in which Mr. Higgins was foreclosed upon while on active duty in the military. Our firm was able to get the foreclosure reversed. We took the case pro bono, one of the few we could afford to handle as a small firm, because Mr. Higgins could not afford an attorney and was trying to deal with this situation while deployed." (Saturday, December 5, 2015)

More details here (decided November 01, 2013).