Foreclosure isn't only option

Opinions + Letters to Editor

SB 2632 -- the bill that created hot discussions nation-wide -- has stirred up emotions here in Florida as well. Below are some opinions published in the Sun Sentinel in recent days. By reading these opinions it is easy to figure out who has a financial stake in this bill -- and who is really concerned about the welfare of the owners.

All opinions below have been published in The Sun Sentinel and are reprinted courtesy of The Sun Sentinel.

      

Condo bill doesn't sound progressive

Michael Chapnick
Delray Beach
Posted March 19 2005

Imagine … you have found a wonderful home at "Blissful Isles Condominium Association," a 10-unit condominium building on the beach. The building has an annual budget of $12,000 per year, with each unit paying $100 per month. Suddenly, the owners of Units 103 and 204 stop paying their assessments. What does the association do?

It may seem insignificant, but in some ways, associations are like people, and they live paycheck to paycheck. What would you do if you suddenly stopped getting paid?

Senate Bill 2632 was filed on March 8 by state Sen. Gary Siplin from Orlando. While presumably the purpose of this bill is to correct perceived abuses in the condominium foreclosure process, the effect would be horrendous. This bill proposes to prevent condominium associations from receiving a judgment of foreclosure until 180 days after notice of their intention to foreclose. The proposed bill also prevents a condominium association from filing foreclosure actions for less than $2,500. Additionally, where under current law the prevailing party is entitled to recover its reasonable attorney's fees and costs incurred in collecting the past-due assessments, the new proposed bill eliminates the right to recover attorney's fees.

At first look, you might think, "That's great! Associations can't abuse power anymore." Or you might think that I am biased because I represent community associations. But remember Blissful Isles? If SB 2632 is adopted, the owners of Units 103 and 204 cannot be foreclosed on by the association for more than two years. And for that two-year period, instead of operating with $12,000 per year, the association will only have $9,600 to pay its bills. And if the association is no longer entitled to collect its attorney's fees and court costs from the delinquent unit owners, then those fees and costs will have to be paid by the eight non-delinquent unit owners.

It is not my desire or intention to scare people. It is, however, my hope that you level-headed readers, whether unit owners, members of a board of directors, or legislators, will take a careful look at the consequences of adopting legislation such as SB 2632. Foreclosure reform may be necessary, but the cost of this proposal is just too high.

Michael Eliot Chapnick is an attorney specialized in Community Association Law -- according to the information of the Florida BAR.

        

Bill would set $2,500 as foreclosure start

By Mark Bogen, Special to the Sun-Sentinel
Posted March 20 2005

Q. I was told there is new legislation being considered in Tallahassee that would stop associations from foreclosing on owners who do not pay their maintenance or assessments.
Do you have any details about this new legislation?

A. A new bill was introduced in the state Legislature that would prohibit an association from filing a lien on a unit or homeowner unless that person was $2,500 in arrears and 180 days has passed. If an owner was $2,400 or less in arrears in his or her maintenance, the association could not use a lien or begin the foreclosure process.

Advocates of this bill point out the many examples of association attorneys taking advantage of owners who are late in their payments.

One example involved a widow who owed the association $100 and then owed the association attorney more than $5,000 for the collection of the $100. Other examples include people who were late paying their maintenance and ended up having to pay thousands of dollars in legal fees.

Supporters of the bill argue that the association can go to small claims court to get unpaid assessments. Many attorneys believe that this bill will cause a great deal of hardship to associations if it is passed.

You should contact your state senator and representative and let them know your position on this bill.

Mark Bogen is a lawyer based in Boca Raton. He addresses the most requested issues in this column, which runs every Sunday in Community News. You can reach him via e-mail at [email protected]

   

Foreclosure bill closer to fairness


F. Blane Carneal
fort lauderdale
Posted March 26 2005 

 

Re the March 14 article, "Bill Seeks Foreclosure Protection": I am an attorney who has represented many unit owners in lien foreclosure matters. The article by Joe Kollin omitted certain key points. The article left out that Donna Berger, the president of CALL, is an attorney for Florida's largest and most powerful association law firm, Becker & Poliakoff, and that CALL is primarily composed of association directors, management companies and others who have a vested political and financial interest in preserving the status quo.

Of course, they are against the bill and other reforms regarding collections -- they are "debt collectors."

The associations' directors are misled in believing it is in their best interests that assessment funds that are collected go first toward costs, then late fees, interest and then attorney's fees, all before being applied to the assessments. No other collections system in Florida allows the attorneys to be paid before the client or that they be paid before there is a hearing to determine the validity of the claim. The economic leverage created by the present statute (SS 718.116(3), Florida Statutes) was designed so that the attorneys benefit, not the unit owner or the association.

Although perhaps extreme, Sen. Siplin is to be applauded, and his bill is a first step in an attempt to level the playing field.

Blane Carneal is an attorney specialized in representing owners against associations. His latest success was a class-action lawsuit against the law firm of Katzman&Korr. See:        Law firm to settle class-action suit over lien filings

Blane Carneal can be reached at: Tel.: (954) 527-0400

or by e-mail: [email protected]

    

Condos run on monthly payments

Gary A. Poliakoff
Fort Lauderdale
Posted March 26 2005

The South Florida Sun-Sentinel's editorial, "Measure tilts balance too far" (March 15), is right on.

Somehow the sponsor of Senate Bill 2632 lost sight of the fact that the life blood of common interest housing communities (condominiums, cooperatives and planned developments administered by a mandatory membership homeowners association) is the monthly maintenance payments. Unless every owner pays in a timely fashion, the association will not have the resources to provide essential services.

When an owner fails to pay his/her fair share of the common expenses, the vendors don't say, "Don't worry about it, I'll accept less." They stop the delivery of services, forcing the owners who have already paid to be further assessed to fund the shortfall caused by deadbeat owners.

The law already affords adequate safeguards to delinquent unit owners -- notice and a hearing before a foreclosure judgment is entered.

Additionally, the Fair Debt Collection Practices Act imposes severe penalties on attorneys who attempt to collect invalid debts or demand an improper amount.

Instead of wasting the Legislature's limited time and resources trying to protect deadbeats, their energy is best directed toward real concerns, like empowering the boards of directors to take the necessary steps to protect persons and property in the aftermath of a natural disaster.

Gary Poliakoff is founder and managing shareholder of the law firm of Becker & Poliakoff. The same firm created CALL. He can be reached at: [email protected]

Opinion: Gary Poliakoff is most likely the single person in Florida who will lose most financially if SB 2632 is enacted. Please consider his reference to the Fair Debt Collection Practices Act. His law firm was found guilty of violating this act in Federal Court. See: Fuller vs. Becker & Poliakoff . In his letter he is further pushing HB 1593/SB 2062 , a bill that would give boards -- and their service-providers -- dictatorial powers and opens the door to further misuse of power. Joe Adams, an attorney with Becker & Poliakoff and chairman of the Condo Advisory Council, withdrew the bill proposal from further consideration during the last Council meeting, due to heavy opposition.

     

Foreclosure isn't only option


Jan Bergemann
President, Cyber Citizens For Justice Inc. 
Posted March 27 2005

Re the March 19 letter, "Condo bill doesn't sound progressive": It is definitely easy to understand why attorneys like the letter writer oppose this consumer-friendly bill.

They are pretending that foreclosure is the only way to get these "deadbeats." Actually, I'm not sure if little old ladies who failed to pay $2.50 in late fees are deadbeats.

These attorneys should have learned in law school that there are other legal options than to foreclose on a family's home, only none so profitable for attorneys!

They also claim that they are concerned about the welfare of these associations and the owners. If they would be honest, they would admit that it's their own wallets that really concern them.

Please don't forget, the associations are the last ones in line when the money collected at a foreclosure auction is distributed. Often there is nothing left to give to associations after the attorneys take their outrageous share.

Attorneys are always fast when it comes to opposing these kinds of bills. For good measure, they always throw in the remark that "foreclosure reform may be necessary." But consumers and legislators have been waiting years for these reform proposals from attorneys. All we hear is criticism toward proposed legislation.

Maybe this bill would have never been filed if certain attorneys wouldn't have abused the privileges given to them by legislators. Don't forget, only owners in associations are not protected against foreclosure, otherwise provided by the Florida Homestead Protection Act.

In my opinion, many of the specialized attorneys have abused these privileges by taking homes of families for little, ridiculous amounts. We might not even have seen this bill if they would have used the foreclosure privileges on real deadbeats only. But it seems common sense isn't always used and we need restrictions and laws for everything.

If kids abuse their privileges you take them away. Do I have to say more?

Jan Bergemann is the president of the Consumer Alliance Organization Cyber Citizens For Justice, Inc. -- a state-wide organization mainly trying to create legislative reforms for mandated properties like condominiums and homeowners' associations!

You can reach him at: (904) 794-0888 or by e-mail at: [email protected]

    

Condo measure helps deadbeats

Joe Pedalino
boca raton
Posted April 7 2005

Re the March 27 letter, "Foreclosure isn't only option": The letter writer's organization, Cyber Citizens for Justice, has lost touch with reality, and its present position insults our intelligence. For the record, I am a condo owner and not an attorney.

They talk about "some old ladies" who owe $2.50 or $25 in late fees losing their homes via foreclosure. Anyone in this position should be advised to pay this trivial fee, thereby preventing the condo from taking any further action. They should then contact the ombudsman, Virgil Rizzo, to report this problem. He will champion their cause against the "unfair" condo, if the situation merits it. Mr. Rizzo is also responsible for recommending to the governor the need for additional legislation. He has been in office for less than a year; let's give him a chance.

CCFJ recommends legislation that will eliminate liens for owners who do not pay their assessments until the amount owed exceeds $2,500 and the time exceeds 180 days. If the condo is allowed to file a lien, penalties and attorney fees are not recoverable. In reality, this proposed legislation does protect "deadbeats."

Imagine owners not having to pay their assessments for six or more months. And when they do pay some portion of what they owe, there are no recoverable penalties or attorney fees, i.e., no consequences for their actions.

Condos do not have money. All monies come from individual owners. If some owners do not pay their fair share of operational costs, then other owners must pay more or see their condo deteriorate.

In reality, CCFJ supports legislation to protect "deadbeats," at the expense of honest owners, some of whom are the same "little old ladies" they purport to protect.

Webmaster's Note: Mr. Pedalino is, according to the information of the Division of Corporations, the Treasurer of the BOCA TOWERS CONDOMINIUM ASSOCIATION, INC.  It is amazing that he considers most condo-owners deadbeats who will only pay their dues under the threat of foreclosure. If I would be an owner in his condominium association I would be insulted by his lack of trust in his neighbors.

Before writing letters claiming that other people's opinion insult "our" intelligence he should get the real information, like what the duties of the condo ombudsman are. He'll find out that the ombudsman can't interfere in pending legal actions. 

 

Actually, he should just speak for himself. But it seems that close contact with the CALL group encourages certain board members to speak for all their association members. CALL itself always claims to represent the opinion of all associations legally represented by the law firm of Becker & Poliakoff. Pedalino should do his research before having his opinion published. We are not only talking a few little old ladies, but many honest condo-owners who were forced to pay outrageous attorney fees for small amounts in unpaid dues. But may be soon he can claim that the CA legislators, a CA Senator actually wrote the bill in question, is insulting his intelligence. It looks like the bill is passing in CA. May be people there are more intelligent?

  

Foreclosure bill unfair to others

Kenneth T. Lassiter
President, Pipers Glen Estates Homeowners Association Inc. boynton beach
Posted April 4 2005

 

I wish to register my concerns about SB 2632, which would prohibit a condo association from filing a lien on a unit owner unless they were at least $2,500 in arrears. Even if an owner is more than $2,500 in arrears in maintenance fees, the association still could not file a lien or begin the foreclosure process to achieve collection until 180 days after sending a written notice. I am also alarmed that the bill's sponsor, state Sen. Gary Siplin, states he plans to amend SB 2632 to include homeowners associations.

Both condo and HOA assessments are used to pay monthly bills. State law requires we set budgets by adding up estimated annual expenses, then dividing equally among all unit owners to determine the assessments. Our community has a monthly assessment of $200.

If enacted and it includes HOAs, SB 2632 would permit a homeowner to live here for over a year and a half without paying anything for their cable TV service; trimming and weeding their landscaping and flower beds; mowing, fertilizing and pest and weed control of lawns; adjustments and repairs to their irrigation systems, house painting and roof cleaning; and for maintenance of common properties including our clubhouse exercise room, swimming pool, tennis courts, streets, streetlights and sidewalks. Why should delinquent homeowners live free and enjoy such services and amenities without paying their share? Is it not grossly unfair to expect responsible unit owners to pay an increased assessment just to cover costs not being shared by the unit owners in arrears?

I strongly urge our state legislators to consider the far-reaching adverse financial consequences this bill would impose on residential communities all over Florida and to vote against passage.

Webmaster's Note: Mr. Lassiter seems to be under the impression that liens and foreclosures are the only way to collect unpaid dues from neighbors. May be somebody should inform him that foreclosure should be the last resort? He might want to talk to Larry Glickman, the attorney on record for his association. Larry Glickman, attorney with the law firm of Sax, Sachs & (Senator) Klein, is an attorney well known among homeowners in associations with golf courses. He is the one traveling through Florida telling board members of golf clubs in financial difficulties how easy it is to "convince" neighbors to become mandatory members in their failing golf clubs. In most cases it caused expensive law suits and homeowners ending up in financial problems. It has placed financial burden on many others!

  

Condo bill would be fair to whom?

Margaret Gatto
weston
Posted April 6 2005

Re the March 26 letter, "Foreclosure bill closer to fairness": Fairness? Fairness to whom, I ask?

Now the letter, "Condos run on monthly payments," published the same day, presents the reality of this irresponsible legislation.

Donna Berger and the law firm of Becker & Poliakoff are the white hats in this war against condo/homeowners associations. Who would the letter writer have represent the silent majority who are paying their maintenance fees on time and abiding by the rules and regulations of the communities they voluntarily moved into?

When would the letter writer have the associations foreclose? How many late payments would you permit before the association "may" protect its other members?

I have served on a board -- and I do not remember any time when the board members were not compassionate if a homeowner requested consideration in bringing a delinquent account up to date. But there is a point when compassion to a few residents places a burden on all the others.

I don't disagree that there are inflexible board members, but I believe they are in the minority.

It is not fair to protect the minority of irresponsible members of the community at the expense of the majority.

Webmaster's Note: Ms. Gatto is a well-known letter-writer. Her e-mails have a certain reputation!  This one is obviously a cleaned up version for the Sun Sentinel, without racial slurs and insults. Normally her e-mails sound like this (quote):

I live in Weston one of the most beautiful cities in the country [thanks to its homeowners association].  Some of the  people, especially the Hispanics, i.e., Venezuelans, Columbians, etc., etc. - who have moved into this city over the last ten years do not like rules, don't abide by rules, don't care about rules - but most important they DO NOT TAKE CARE OF THEIR PROPERTY AND DON'T PAY THEIR BILLS ON TIME!  This is not only my opinion, but that of many of my dearest friends who are Hispanic] They left their uncivilized countries and came here to create the same chaos.  We are not going to destroy our community or South Florida because of them or because of any other ignorance who doesn't like following rules.
 
Look at our highways.  Trash all over the streets.  We never had trash in the streets 20 years ago.  People maintained their homes, cut their grass and didn't put trash out three ahead of trash day. 
 
If these people don't like condo associations or homeowner association, then they can move where there aren't any, but I doubt even these people would want to live in those neighborhoods!

If she feels that Donna Berger deserves the white hat, I'm sure many owners are gladly wearing the black one. Because I don't think many owners really like to be affiliated with people like this!


 
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