By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published February 9, 2013

We heard over the last few days quite a few comments about a proposal in Senate Bill 596 that would require owners to pay disputed dues and "assessments accruing during the pendency of the action, when due" into a court registry if they chose to defend the foreclosure lawsuit.

Please see exact wording of the bill proposal below!

The provision is based on the wording of landlord/tenant law (Chapter 83 Florida Statutes). It plainly is intended to deter frivolous lawsuits by owners against foreclosure with the goal to prolong the process and live in his/her home/unit longer without paying a dime -- at the expense of the due-paying neighbors.

Make no mistake: No matter WIN or LOSE, the association has the right to collect the monthly dues that became due during the pendency of the lawsuit anyway, with late fees and interest -- if not paid into the court registry -- or paid voluntarily. Disputing past due assessments doesn't free the owner from paying future dues to the association.

And before you start judging this provision, please note the magic word contained in the provision: "THE COURT MAY ORDER!" How much more due process can you expect from a law? It will be up to a judge in each individual case to decide if payments into the court registry should be made.

This proposed provision intends to serve as a safe-guard against owners who know that they have no valid defense against the pending foreclosure but defend it anyway with frivolous motions with only one goal in mind: To stay longer in their homes/units at the expense of the neighbors without paying a dime!

We heard from various sources claiming that this provision isn't consumer friendly. Let me just respond with another question: Is it consumer-friendly that neighbors have to pay for water, electricity, cable and other services for owners who aren't paying their fair share of the bill -- shares they agreed to pay in writing?

In an article published this week in the Orlando Sentinel, written by Mary Shanklin under the headline "Bill lets HOAs foreclose fast if dues unpaid" Donna Berger, attorney from the KGB lawfirm (Katzman Garfinkel Berger) was quoted as follows: "Is that really consumer-friendly?" she asked. "What if there are reasons they are contesting — because they never got notified, the special assessment wasn't properly passed or the management company is off by thousands of dollars? Yes, that happens."

No matter the reason, the assessments becoming due during the pendency of the foreclosure lawsuit have to be paid anyway. Management made a mistake? That's why the bill contains another provision Donna Berger was complaining about in her blog: Holding developers, or associations, or its assignees or agents liable for their actions. People should always be held liable for their actions, especially professionals who get paid for their services.

But even the best defense doesn't free owners from the obligation of paying properly assessed dues to the association. And it all hinges on the decision of a judge in every individual case if they have to pay monies into the court registry. 

The question regarding "consumer-friendly" coming from Donna Berger really made me laugh. Don't forget, Donna Berger, as the Leader of CAN -- an attorney firm lobbying group claiming to lobby "FOR" associations -- was partially responsible for bills that passed in the last few years that were definitely not consumer-friendly because they allowed association boards to be accuser, judge, jury and executioner. No due process, no judge involved.

Let's face it: Donna Berger was the one who helped to get legislation passed that:


simply because the association claims the owner owes any assessments to the association for 90 days or more. The owner loses all of these rights without any hearing or due process rights whatsoever -- even if the management company just made a mistake as Donna Berger admits can happen!

Make no mistake, if the management company or the board says you owe or you carry any minimal balance for more than 90 days -- an owner loses all the above privileges.

The provision contained in
Senate Bill 596 allows the owner to contest what the association claims to be owed -- and it's a judge who sets the amount to be placed in the court registry. The owner loses nothing until they get a hearing before a judge -- and only if the owners claim they don't owe what is claimed in the complaint.

Remember: Under all the legislation passed over the last 3 years with the help of Donna Berger and CAN, owners lose all the above rights without ever having the opportunity for any hearing or due process whatsoever. Would you call that consumer-friendly?

In all honesty, I can only consider Donna Berger's statement regarding "consumer-friendly" quoted in the Orlando Sentinel article "PATHETIC" -- considering her prior support of punishment without due process!

In a News Report by Channel 9 -- Orlando" titled: "Proposed bill could make it easier for HOA's to foreclose on homes" another attorney, Orlando foreclosure defense attorney Justin Clark, rambles on about the powers of the HOA. "It's ridiculous,” said Clark. “HOA’s are like mini-governments already. They have so much power it's unbelievable. We need a bill to the contrary giving them less power."

He may not be wrong, and other provisions in Senate Bill 596 may address this issue, but the case he was talking about in this news report had absolutely nothing to do with the proposed provision regarding payment of dues into a court registry during pendency of a foreclosure lawsuit. The owner admitted that he "forgot" to pay his dues -- and they were actually fighting about the amount of attorneys fees being charged. As an attorney Clark should know, that he was trying to compare apples with oranges. In my opinion Clark, being an attorney, should be held to a higher standard when discussing pending bills than the owner, who may have been rightfully upset about the legal fees charged.

All I'm asking for is a fair statement regarding the actual provisions contained in a bill. Don't twist the issues so they fit into your personal agenda. And if you are an attorney and seem to be unable to properly interpret the wording of a bill proposal you might consider giving back your license.

Please read the actual bill proposal before you start commenting on the PRO and CON!

1056 Section 13.Subsection (9) is added to section 720.3085, 

1057 Florida Statutes, to read: 

1058 720.3085 Payment for assessments; lien claims.— 

1059 (9) In any action by a homeowners’ association for unpaid

1060 assessments, the parcel owner shall pay into the court registry 

1061 the amount alleged in the complaint as unpaid, or if such amount 

1062 is contested, such amount as is determined by the court, plus 

1063 any assessments accruing during the pendency of the action, when 

1064 due, unless the owner has interposed the defense of payment or 

1065 satisfaction of the assessments in the amount the complaint 

1066 alleges as unpaid. However, even if the defense of payment or 

1067 satisfaction has been asserted, the court may order the owner to 

1068 pay into the court registry the assessments accruing during the 

1069 pendency of the action. If the owner does not dispute the amount 

1070 of accrued assessments, the owner must pay the amount alleged in 

1071 the complaint into the court registry on or before the date on 

1072 which his or her answer to the claim for unpaid assessments is 

1073 due. If the owner contests the amount of accrued assessments, 

1074 the owner must pay the amount determined by the court into the 

1075 court registry on the day that the court makes its 

1076 determination. The court may, however, extend these time periods 

1077 to allow for later payment upon good cause shown. 

1078 (a) If the owner contests the amount of money to be placed 

1079 into the court registry, any hearing regarding such dispute 

1080 shall be limited to only the factual or legal issues concerning: 

1081 1. Whether the owner has been properly credited by the 

1082 association with any assessment payments made; and 

1083 2. What properly constitutes assessments under the 

1084 governing documents. 

1085 (b) The court, on its own motion, shall notify the owner 

1086 that assessments must be paid into the court registry by order, 

1087 which shall be issued immediately upon filing the owner’s 

1088 initial pleading, motion, or other paper. 

1089 (c) The filing of a counterclaim for money damages does not 

1090 relieve the owner from depositing assessments due into the 

1091 registry of the court. 

1092 (d) Failure of the owner to pay the assessments into the 

1093 court registry pursuant to court order is an absolute waiver of 

1094 the owner’s defenses. In such case, the association is entitled 

1095 to an immediate default without further notice or hearing 

1096 thereon. 

1097 (e) If the association is suffering hardship resulting from 

1098 the loss of assessment income from the unit, the association may 

1099 apply to the court for disbursement of all or part of the funds