Eliminate your mortgage through HOA foreclosure

lawbook

Using the law

The question of statutory and consensual liens that permit HOAs to foreclose on a homeowner for debts, often less than 10% of the home value,  has always been very disturbing to me. I view it as legalized extortion that constitutes a cruel and unusual punishment as a result of the excessive and draconian loss of all the homeowner’s equity.  Especially since the HOA has not advanced any hard cash as do the banks and mortgage companies, where foreclosure can reasonably be accepted as a valid mechanism to protect of the lender.  The HOA is more in the position of a municipality where a resident has failed to pay his taxes, but who has certain alternatives to an immediate wipe-out of his home.

I also view this foreclosure right as discriminatory against homeowners who have paid their mortgage and assessments for many, many years, and who have built up substantial equity. This high equity value makes it more feasible that an HOA foreclosure would indeed return cash to the HOA.  Since the HOA lien is inferior to the mortgage, it can only hope to collect if there is cash in excess of the mortgage that gets paid off first.  And, if there is substantial debt, the HOA does not dare use foreclosure in order to collect delinquent assessments, because it would have to pay off the mortgage or assume the mortgage at the sheriff’s sale.  Even the astute HOA attorneys from CAI have belatedly admitted that this is how the procedure works.  Unless, of course, there’s no need to pay the mortgage company.

So, it came as quite as a surprise when I became aware of an incident where an HOA was able to acquire a condo unit this past September 2009 for as little as $15,000 in the nice town of Fountain Hills, AZ.  (See Maricopa Superior Court,  CV2007-021000).  Leaving aside the question as to why an HOA would acquire real property in its own name, I was intrigued by the most likely condition that the HOA somehow got around an outstanding mortgage.  I could not believe that an HOA would assume or payoff an existing mortgage.  Of course, I realized the small possibility that there was no outstanding mortgage.  My research of the county clerk’s public records showed a $160,000 mortgage dating back only to 2005, and that the mortgage company loan was “extinguished” by the HOA foreclosure. The lender, for some reason, did not bid at the sheriff’s sale and the HOA took possession for the debt owed it, amounting to some $15,000.  Not a bad deal!  Not good for the mortgage company, however.

How could this happen, I pondered.  Did the lender not care anymore?  Perhaps I missed a satisfaction of loan — that the loan was paid off prior to the sheriff’s sale?  No, I couldn’t find any such release, and the homeowner was in and out of trustee sales for the past 2 years, indicating that he had no funds to pay the mortgage off.  However, I did find a release of a prior loan just one month prior to the recording of the second loan of $160,000.  Why didn’t the HOA attorneys uncover this new mortgage that I uncovered within a few hours?  Further puzzling was the fact that the attorney had filed a lis pendens (notice of an impending action affecting the unit) in 2007 that recognized two smaller $8,000 loans, both of which were paid off prior to the sale, but missed the whooping $160,000 mortgage.  How could that be?  My conclusion was that the mortgage company was not notified of the HOA foreclosure.  Or, did I miss something?

I was quite disturbed by this finding since the HOA attorneys of record were well known CAI member attorneys from the Ekmark & Ekmark law firm.  Further disturbing was the fact that these same attorneys were involved in the 2004 HOA foreclosure that had come to my attention where, once again, the HOA seemed to get around an outstanding mortgage. (See Maricopa Superior Court, CV2003-00394).  In this earlier instance, a $96,000 mortgage was not addressed (the deed digits ending in “033″), but a smaller mortgage, made the same day by the same mortgage company, in the lesser amount of some $8,000, was addressed (the deed digits ending in “034″).  The mortgage company had acknowledged to the court that it had assigned this particular mortgage to another company, but had not recorded it, and declared that it had no interest in the foreclosure property.  But, there was no mention of the larger mortgage deed, “033″, in the “no interest” statement to the court, nor was there any “no interest” or satisfaction statement from the assigned mortgage company for the smaller mortgage.  Yet, the court granted the sheriff’s sale and the HOA acquired the property for some $8,000 — there was no mortgage company bid at the sheriff’s sale.  Did I miss something again?

It follows from the above that it is possible for a homeowner to escape his mortgage debt by allowing the HOA to foreclose on his home. He is then in a position to make some deal to reoccupy or re-purchase the home from the HOA for an amount owed the HOA, plus, perhaps, some little “extra”.  Or, the HOA could sell it a nice profit.  Not a bad deal at all!

Caution:  Both court foreclosure orders state:

 The Court reserves jurisdiction to hear, decide and determine any claim for post-judgment attorney’s fees and costs and any other matters that may properly come before the Court.

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Published in: on November 6, 2009 at 7:32 am  Comments (5)  

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5 CommentsLeave a comment

  1. Thank you Mr. Staropoli. The law needs to change and take away the power from the HOA’s when dealing with unpaid dues. I am current but lost half my income a year back and I sent the management company letter stating that. They did not acknowledge my letter and continued to charge me late fees. Now they are charging me late fees for the late fees. This HOA business need to be governed if not by the state then the feds.

  2. Dear Mr. Staropoli,

    I have read your column for the past several years. You are absolutely wonderful! Kudos! Keep up the terrific work! :)

    Regarding my previous comment:

    Please look at this website regarding Eugene Burger’s nearly 50 federal criminal indictments:

    http://www.ripoffreport.com/Homeowner-Associations/EUGENE-BURGER-MANAGE/ebmc-money-laundering-kickbac-2c7g7.htm

    2000 U.S. Dist. LEXIS 22066, *
    UNITED STATES OF AMERICA, Plaintiff, v. EUGENE BURGER, Defendant.
    No. CR 99-0439 SI

    PS – Thank y

  3. Please avoid the following like the plague:

    EUGENE BURGER MANAGEMENT CORPORATION
    GAYLE KERN, Esq. and
    PHIL FRINK

    BEWARE & BE AWARE – THEY ARE TROUBLE…Illegal foreclosures, false title recordations, embezzlement, perjury, false arrest, death threats, abuse of judicial system, obstruction of justice, restraining orders against concerned homeowners investigating embezzlement

    VICTIM OF THIS HOA SCUM? Please report to FBI Las Vegas!! (702) 584-5555 (702) 385-1281

    BRIAN SANDOVAL – PERJURY GOES UNPUNISHED IN HIS COURTROOM INVOLVING *ILLEGAL* HOA FORECLOSURE & EXTORTION.

    Former Federal Judge Brian Sandavol allowed HOA attorney Gayle Kern to perjure herself in federal court involving illegal foreclosure.

    Come election time – please remember this homeowners if you value your homes!!!

  4. [...] Eliminate your mortgage through HOA foreclosure [...]

  5. Thank you. Very complicated. I am considering letting my home be foreclosed upon to rid myself of the legal leeches. They are harrassing me with legal technicalities, and as a single mom have not had the funds to defend myself in courst.

    Of course, I get invoices every time they file something against me. Is this a good strategy? I would like to at least get my property from the home, and if I file bankruptcy first maybe I could get rid of the Homeowner’s association? They say I owe them back homeowner’s dues, and this is simply a bookeeeping error gone bad to the legal system, and I can’t afford to pay the legal fees, late fess, interest, etc. Should I contact my mortgage company? One time they EXTORTED $3500 (twice too much) out of my mortgage company!

    I have got to figure this out! and the legal system isn’t the way to go, they are running legal circles around me.

    THE SHORT HISTORY: Almost Unexplainable (and nearly unbelievable)

    Perhaps it’s due to my having been a leader behind the vision to elect a “non rubber-stamp board” to hire a management company who would take maintenance responsibilities seriously some 12 years ago. Perhaps we should not have tried to exercise our rights as American citizens within an HOA community (they called it slander). Or perhaps it’s simply a case of extreme professional incompetence blended with over-the-top attorney arrogance, topped of with a political stronghold of an HOA BOARD/MANAGMENT CO/ATTORNEY COMBO; and that I ought not to take it personally.
    However, I suspect I have been a target of an HOA/attorney team who has used the judicial process to engage in a campaign of harassment and intimidation against me, spanning some twelve years. Otherwise, It’s hard to explain the treatment I have been receiving.

    I have moved from my town home (renting it out) because of not feeling at peace there. Although half of the people in the complex have occasions to work from home, they drove me out of a home-based business causing the expense of a $300/month office, hampering my ability to pay homeowner’s dues on time.
    Now that I have finished putting my daughter through college, with financial stress lifted, I gave them written permission (twice) and voided check to debit $200 from my account monthly, but apparently they wanted me to continue to pay late; with monthly $25 late fee plus 18% interest, because they didn’t debit my account, somehow got a default judgment, and used the bank account info I provided for the monthly debit; to garnish me months later with interest, late fees, and attorney fees!

    They file papers continuously on technicalities that could be handled on a business level; billing me through court for litigation; and threaten more punitive lawsuits; making me less able to pay my dues! Meanwhile, it would be great if they would fix my roof.

    In all honestly I am a little concerned to print my name here.


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