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An
Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published
May 25, 2010
Recently
a letter sent by the law firm of Wetherington, Hamilton & Harrison,
PA, to a homeowner starts with this sentence -- in bold letters:
THIS COMMUNICATION FROM A DEBT COLLECTOR IS AN ATTEMPT TO COLLECT A
DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
Scary,
isn't it? And that's the whole idea -- to intimidate the homeowners and to
make them pay legal fees that neither the law firm nor the association are
really entitled to collect by statute.
The letter later on explains the reason for this demand (quote):
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"We understand that you have corrected these violations after receiving the demand letter(s) we sent you on behalf of the Association and the Association appreciated that you have done so and are now in compliance with the Declaration. However, you have failed to pay the association its cost and legal expenses in obtaining your
compliance with the Declaration that we noted were due in the demand letter(s) we sent you on behalf of the Association.
Please be advised that Section 4.3(b) of the Declaration provides that any costs
incurred by the Association in obtaining an owner's compliance with the Declaration is a personal
obligation of such owner and "any amount which remains due and unpaid shall be a continuing lien upon Owner's Lot collectible in the manner provided in Article
VI." Therefore, please be advised that your failure to pay the amounts incurred by the Association in obtaining your compliance with the Declaration allows the association to pursue you for these costs and lien your property to secure such
amounts by treating the amount owed by you as a past due assessment.
Please be advised that the amounts you now owe to the Association for the costs incurred by the Association in obtaining your compliance with the Declaration, which now include the costs
of sending you this demand, are as follows:
Attorneys' fees:
$ 320.00
Postage and copying:
$ 15.24
TOTAL AMOUNT DUE:
$ 335.24
Pursuant to Section 720.3085, Fla. Stat., you shall have forty-five (45)
days from the date you receive this letter to pay the outstanding amounts noted above and any
amounts which may accrue subsequent to the date of this letter such as, without limitation, additional interest, finance charges and legal
fees associated with this collection action. Should you fail to pay all amounts owed within such forty-five (day) period, the Association will record a Claim of Lien against your property in the public records of Pasco County, Florida at such time pursuant to Section 720.3085, Fla. Stat.
Please make your cashier's check or money order payable to Kings Landing Homeowners Association, Inc. and mail it (by certified mail if you wish to have proof of delivery) to my attention at
Wetherington, Hamilton and Harrison, PA, 1010 N. Florida Ave., Tampa, FL 33602 within forty-five (45) days from the date you receive this letter to prevent further legal action.
An important notice regarding this letter and your rights is enclosed with this letter. If you are represented by an attorney in this matter, please forward this letter to your attorney.
PLEASE GOVERN YOURSELVES ACCORDINGLY.
Sincerely,
WETHERINGTON, HAMILTON & HARRISON, P.A.
(Signature)
Douglas G. Christy
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In
my opinion the attorney uses all kinds of legal explanations about what
could happen to the homeowner if he/she fails to pay the debt owed, but
clearly fails to explain what gives the attorney the legal right to demand
payment of these legal fees in the first place.
It
looks more and more like many attorneys knowingly ignore FS
720.305, which clearly states (quote): "The prevailing
party in any such litigation is entitled to recover reasonable
attorney's fees and costs." When
reading this provision in FS 720.305, you will as well realize that there
is no disclaimer allowing governing documents to supersede the provisions
of the statutes. The statutes make it very clear that only assessment
collections can create liability for legal fees without litigation, and
the statutes authorize attorneys' fees and costs only for litigation -- prevailing
party -- see above. And
this clearly has nothing to do with the collection of an
"assessment."
Certain law firms have been using these tactics
since 2004, when the fining process was changed and liens and foreclosures
could no longer be used as a threat to enforce fines. The changes
made to the law in 2004 (FS
720.305) created a lot of safeguards for homeowners against
abusive fining procedures. Currently, the law as written forces
associations to give the homeowner 14 days to remedy the alleged
violation, to give the homeowner the opportunity to a hearing in front of
a grievance committee; and if the homeowner failed to pay voluntarily, the
association and its attorney have to enforce payment of the fine through
court proceedings, meaning the association and its attorney have to prove
that there actually was a violation.
As
you can imagine, some boards and their attorneys considered the provisions
in FS 720.305 much too complicated.
They
were looking for easier ways to fleece homeowners and they made them pay
-- right or wrong.
The
method as described above in the letter was the result of
"interpretations" attorneys came up with in order to circumvent
the existing laws.
Also
enclosed in the letter was an attachment,
explaining the rights of the owner under the Federal Debt Collection
Protection Act (FDCPA).
The notice contains paragraph:
"d.) If a consumer notifies the undersigned within the thirty-day period that the debt or any portion thereof is disputed, the undersigned will
obtain verification of the debt and a copy of such verification will be mailed to such consumer."
This
makes me wonder what kind of "verification of the debt" the
attorney is willing to supply?
Here
are some suggested options:
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Because
we say so!
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We
need money and homeowners in community associations are easy targets,
since there is no regulatory agency in
Florida
.
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Throwing
enough legalese at naïve homeowners will intimidate them enough to
make them mail a certified check.
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We
were successful as schoolyard bullies and now we continue our
intimidation tactics by putting the letters “Esq.” behind our
names.
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The
homeowner will find out that it is more expensive to fight this demand
than paying it and will write the check for us -- even if we had no
rights by statutes to demand this amount in the first place.
And
these are exactly the people our esteemed legislators want to give the
power to lien and foreclosure for fines levied by kangaroo courts!
SEE:
S 1196 –
The
Act To Legalize BLACKMAIL OF HOMEOWNERS
SEE
AS WELL:
SOME
CALL IT ENFORCING DEED RESTRICTIONS --
OTHERS CALL IT HIGHWAY ROBBERY!
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