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Restitution
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Senior Told Her Home Would Be Sold In Two Weeks To Collect A $405. Debt She Did Not Know About
She requests resitution of $3135 paid under protest to collection lawyers Epsten, Grinnell & Howell
March 06, 2003
By
Mary L. Tooker
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• Complaint from a Rancho San Clemente Community Association owner regarding lien and foreclosure on home.
Curtis Management sent her bills of to a tenant's address and the bills were returned to sender by the post office over a period of 1 1/2 years. The Rancho Santa Fe Homeowners here receive 3 separate maintenance bill and the owner was unaware of this third monthly bill on her investment property.
Curtis management did not did not attempt to correct the mailing address and instead sent the $405 payment due to foeclosure lawyers Epsten Grinnell & Howell who in turn sent the owner notice that they were selling her home in two weeks.
Posted Apr 5 2006 1:46AM CEST
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Username withheld
, California |
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I am in escrow right now for a unit in Vista Pacifica. Part way into the escrow I found about two past defect lawsuits against the builder and on-going mold remediation efforts.
If anyone has more information regarding Vista Pacifica, please contact me. I'm having a difficult time obtaining full disclosure.
I hope Ms. Tooker's situation is not pervasive in San Clemente.
By the way, I've only heard of Ammcor when hearing about a HOA...why don't I ever hear of RSC (other than the sign on Calle Del Cerro)?
Click to email Mike Sxhwartz
To respond please click::
http://www.ahrc.com/new/index.php/src/tools/sub/newsletter/action/display/issue/24
Posted Mar 18 2003 5:16PM CET
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Username withheld
San Juan Capistrano, California |
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A senior citizen should NOT be having to go through this type of harrasment. If my mom were in this situation I would get her out!! This is dangerous for all of us.
I live in an HOA and I'm selling and moving on- - I will never let my freedoms be jepordized again. So far nothing has happened to us, but after 20 years I see true sickness creaping into our board - -control freaks that will do anything to control neighbors-it frightens me for my husband and I.
I was verbally assulted at the last board meeting for addressing the board about handicap issues-the president said I had hidden agendas- I felt like I was no longer in the USA . Older people shouldn't live like this.
Posted Mar 12 2003 12:41PM CET
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Username withheld
, Texas |
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Dear Mary,
If I were you, I would immediately place my home on the market and move into a real home in a real neighborhood with real neighbors who care about each other.
Living under THREE associations is THREE times the liability and THREE times the stress. In essence, you are being controlled and governed by a HOA industry lawyers. They run associations behind the scenes and have controll not only over the homeowners but the boards and property managers as well.
That is no way to live!! Think about it. I believe that you will be much happier, much healthier and more secure in your home.
Remember, constitutional protections may not apply to homeowners living in associations.
Spread the word. Distribute flyers. Paste them up in public places. Leave them everywhere you go.
Sincerely,
P. Flamingo
Posted Mar 10 2003 5:56PM CET
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Username withheld
, ot |
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I will attempt to give you a very general summary of laws of the State of California regarding assessement by a association. This summary should not be relied upon as legal advice but only a general summary of some of the issues that may arise in this type of problem. There may be many other issues involved. You should consult your own lawyer on your own case.
There is a series of questions I would ask.
Does the homeowner reside in a Common Interest Development?§ 1351. of the California Civil Code defines Common Interest Development as
(c) "Common interest development" means any of the following:
...(2) A condominium project.
A condominium project is
(f) A "condominium project" means a development consisting of condominiums. A condominium consists of an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all boundaries thereof . . . It is assumed from your facts that you live in a condominium therefore it appears that you live in a Common interest development.
The next question is whether your homeowner’s association is a valid and legal entity. A review of the incorporating documents along with various bylaws and minutes should be conducted to determine this.
Assuming the Homeowner’s association is a valid legal entity, are the CC&Rs valid and enforceable. A review of the CC&Rs needs to be conducted to determine this.
Assuming that all of the above are valid and legal, has the association followed the procedures of the law in enforcing the CC&Rs?
First, if there is an outstanding balance owed for assessments, the association is required to notify the homeowner of the outstanding sum. In this case it appears that the association had the billing information of the homeowner. Is this where the bills were actually sent? It seems reasonable that the association would be required to determine the correct address of the homeowner, especially if the homeowner has given the association this information.
Next, if the homeowner actually received the bills, did the Association serve the proper documents prior to beginning the foreclosure? . California Civil Code § 1367 requires that a. lien for delinquent assessments be filed and served prior to the starting of a non-judicial foreclosure. Further, “ . . . [b]efore an association may place a lien upon the separate interest of an owner to collect a debt which is past due under this subdivision, the association shall notify the owner in writing by certified mail of the fee and penalty procedures of the association, provide an itemized statement of the charges owed by the owner, including items on the statement which indicate the assessments owed, any late charges and the method of calculation, any attorney's fees, and the collection practices used by the association, including the right of the association to the reasonable costs of collection.”
If this is competed the next question is whether the association has complied with the non-judicial foreclosure requirements. California Civil Code § 2924c sets forth some requirements. A default notice with specified language giving the homeowner 90 days to cure this default should be served upon the homeowner and published in a newspaper. During this 90-day period a homeowner can generally pay the sums due and stop the foreclosure.
The fees, costs and attorney fees that may be charged are regulated by this code section. “...(c) Costs and expenses which may be charged pursuant to Sections 2924 to 2924i, inclusive, shall be limited to the costs incurred for recording, mailing, including certified and express mail charges, publishing, and posting notices required by Sections 2924 to 2924i . . . ”
“(d) Trustee's or attorney's fees which may be charged pursuant to subdivision (a), or until the notice of sale is deposited in the mail to the trustor as provided in Section 2924b, if the sale is by power of sale contained in the deed of trust or mortgage, or, otherwise at any time prior to the decree of foreclosure, are hereby authorized to be in a base amount that does not exceed three hundred dollars ($ 300) if the unpaid principal sum secured is one hundred fifty-thousand dollars ($ 150,000) or less, or two hundred fifty dollars ($ 250) if the unpaid principal sum secured exceeds one hundred fifty-thousand dollars ($ 150,000), plus one-half of 1 percent of the unpaid principal sum secured exceeding fifty thousand dollars ($ 50,000) up to and including one hundred fifty thousand dollars ($ 150,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand dollars ($ 150,000) up to and including five hundred thousand dollars ($ 500,000), plus one-eighth of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($ 500,000). For purposes of this subdivision, the unpaid principal sum secured shall be determined as of the date the notice of default is recorded.
Finally, a notice of sale must be filed with the county and served upon the homeowner 20 days before the date of sale.
A careful review of each case should be conducted by a lawyer to see if all of the steps were properly taken. If the association has a pattern of misconduct and is taking excessive sums from the homeowners, a careful review should be conducted by an attorney to determine the rights of the individual homeowners.
This is only a general summary of the law in the State of California, for persons in the State of California, as it pertains to non-judicial foreclosures due to failure to pay an assessment. The review should not be applied to this fact pattern. There may be many more issues involved in each individual case. Do not rely upon this for your own circumstances. You need to consult your own lawyer so that proper advice can be given for your case.
Law Offices of Douglas Joseph Rosner
4768 Park Granada, Suite 212
Calabasas, CA 91302
(818) 501 8400
Posted Mar 8 2003 11:53PM CET
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Doug Rosner
(View Profile)
Calabasas, California |
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I have been in the collections industry for almost 19 years, I am not an attorney and I do not provide legal advice.
Our industry has been alerted to violations of the FDCPA being committed by third party collectors representing Home Owner's Associations. The industry has worked very hard to clean up its reputation and does not look fondly on those who violate the rules and spirit of the FDCPA.
The first problem surrounds the collection letters. The attorney's are clearly in the business of collecting and are therefore bound by it.
Letters from debt collectors, as defined by the FDCPA, are required to include what the "mini-miranda." In my opinion, the language included in these letters is grossly insufficient under the act.
If I were in your shoes, I would consult both collection and legal malpractice attorneys immediately. Foreclosure resulting from violations of the FDCPA by a lawyer is probably criminal and I would have my attorney pursue them through the District Attorney, Bar Association and State Attorney General on my behalf.
Next, what are the items they are "not at liberty to provide"? I would also like to see copies of any correspondence you sent them and copies of any contracts you signed. Please send both front and back copies.
If the post office returned your bills to them as they claim, where are they? Please request copies and forward them to me.
In my opinion, violations of the FDCPA should be filed directly against the lawyers’ as they are "third parties" and NOT part of the association. Therefore, attorney's fees incurred for their defense of FDCPA violations in civil lawsuits, criminal charges or complaints filed with the California Bar Association, would fall solely on the shoulders of those attorneys, NOT the association or any insurance policy of the board or association.
I see a lot of other mistakes they made, but will discuss them with you one on one, as not to assist them. Please consult the AHRC web-master for my contact information.
Posted Mar 7 2003 8:01PM CET
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Username withheld
Fountain Valley, CA, California |
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I could understand it if she was ignoring the letter but they were being returned. I find it amazing that they don't have to do a better job of locating the owner. How convenient for them.
Posted Mar 7 2003 4:24PM CET
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Greg Warren
, Texas |
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