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Old 05-01-2011, 04:11 PM
 
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Quote:
Originally Posted by yantosh22 View Post
HB-165 is a bill that was created because a party right here in Charlotte, started a planting area on property that wasn't his. He was warned not to do this. He continued to maintain the planting against the rules so the HOA had no choice to fine him $100 to stop.
No choice? Is this sarcasm? How about seeking an injunction in court, charging back the legal fees as the prevailing party and FACING JAIL TIME for contempt of court of the resident didn't obey the judge?
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Old 05-01-2011, 04:15 PM
 
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Quote:
Originally Posted by yantosh22 View Post
HB-165 is a bill that was created because a party right here in Charlotte, started a planting area on property that wasn't his. He was warned not to do this. He continued to maintain the planting against the rules so the HOA had no choice to fine him $100 to stop. In NC they can take no other action as they are not police forces as contended above. Eventually this led to $7000 worth of fines and late fees. In response Rep. Beverly Earle filed HB-165 to amend the PCA to make this more difficult to do. There is nothing wrong or abnormal about this. It means the local community has the power and right to have a healthy debate on how HOAs are operated in NC without succumbing to the silly rhetoric coming from people who don't live here. It also disproves the implications, incorrect ones at that, that HOAs are all created equal. They are not, and here in NC everyone gets a say including a guy planting flowers.
Thanks for posting the info on the bill. Here's a link to the text North Carolina General Assembly - House Bill 165 Information/History (2011-2012 Session)
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Old 05-01-2011, 05:20 PM
 
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Originally Posted by GCharlotte View Post
No choice? Is this sarcasm? How about seeking an injunction in court, charging back the legal fees as the prevailing party and FACING JAIL TIME for contempt of court of the resident didn't obey the judge?
In the USA, I don't believe that you can be put in jail for failing to pay a civil debt. Debtor's prisons don't exist here. At most they can put a lien on your assets and/or possibly garnish wages. This is the same result as the HOA simply foreclosing as the law allows.
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Old 05-01-2011, 06:06 PM
 
Location: Charlotte, NC
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Quote:
Originally Posted by yantosh22 View Post
In the USA, I don't believe that you can be put in jail for failing to pay a civil debt. Debtor's prisons don't exist here. At most they can put a lien on your assets and/or possibly garnish wages. This is the same result as the HOA simply foreclosing as the law allows.
"simply foreclosing"...whoa! That is a mouthful. I used to be the president of my HOA because I wanted to make what (I considered to be) a bad thing as good as possible. I made the affirmation that there would not be any foreclosures (from the HOA) on my watch. I was determined that this be the case. Our HOA fees are less than $125.00/year and the most that people owed was like $3k. OK, that is a massive amount compared to the annual dues, still, I was not about to foreclose on a property for a $3k debt. I had no problem filing a lien on the property...in fact, I did them myself. I also had no problem aggressively pursuing the debts owed; in particular when the owners refinanced or sold the properties.

Unfortunately, my vice president and the management company had other ideas. Long story short , they filed foreclosure notices on 11 properties without my approval. (we only have 110 homes in the subdivision). This was before the real estate crisis and I was fairly livid at what this would do to our property values. Well, the properties did not sell on the courthouse steps (fortunately for us) and I was able to stop the proceedings.

Fast forward to 2011. Now, we have many, many more than 11 foreclosures in our neighbourhood and our property values are in the toilet. My house is not worth what I paid for it in 1989. A house three doors down from me is for sale for $60K.

"Simple foreclosures". Hmmm. No such thing!
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Old 05-01-2011, 06:28 PM
 
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Originally Posted by chicagocubs View Post
...
"Simple foreclosures". Hmmm. No such thing!
Try reading it in context as it might help you to understand. It's "simple" compared to the suggested alternative of an HOA going to court with the plan of having a judge make a criminal charge for what is a civil offense.
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Old 05-01-2011, 06:32 PM
 
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Quote:
Originally Posted by yantosh22 View Post
In the USA, I don't believe that you can be put in jail for failing to pay a civil debt. Debtor's prisons don't exist here. At most they can put a lien on your assets and/or possibly garnish wages. This is the same result as the HOA simply foreclosing as the law allows.
My point being that there seems to be a lot of laws added for the benefit of the attorney for an HOA where other remedies already exist. One thing that I wondered when it comes to the double-foreclosure issue is why not just put the lien on the property for a few months or whatever without trying to beat the bank to the courthouse? If the bank is going to foreclose then the HOA is going to be out the fees but I bet the lawyers won't.

If someone has the ability to pay but doesn't then a lien is going to wake them up pretty fast. It shows up on credit reports and basically means that person is SOL when it comes to getting new credit until the bill is paid. Why go through the actual hassle of the HOA OWNING a house (like the 20 for Kingstree) which means they have to keep up the lawn and pay property tax and maybe just maybe a foreclosed house can be a blight.

But in the instant example, I don't mean debtors prisons. I mean if someone is doing something that they aren't suppose to do, forget the debt. Take them to court (you'd have to take them to court for fines that big anyway if the fought) and get a declaratory judgement for the violation and an injunction ordering them to reverse course.

This makes more sense to me because it has hellava more teeth than a power struggle and takes money motivation out of the equation. As long as you turn it in to a fine then there's motivation at least on the lawyer's side to keep it that way.

BUT if a judge ruled that the violation happened (a declaratory judgement) and ordered the violator to reverse course (an injunction ordering them to knock it off) then if the violator continued his course he would be in contempt of court and THAT would get him put in the pokey until he woke up and knocked it off.

I believe this is the way CCRs in older neighborhoods were written. That's the way mine is. It wasn't until local attorneys got the NC Supreme Court's blessing and some statute tweaking that they were allowed to fine on things the CCRs never said they were allowed to fine for.

That's the way it is for me. Nothing in CCR allows them to fine for things they fine for but the tweaking of 47F does. But the fines aren't fixing the problems (obviously or we wouldn't be having the convo) but they are earning money for lawfirms.

To recap, a lien without foreclosure is still very valuable. HOAs shouldn't rush a FC because if the person can't pay then they are going to lose out to superior lien of the bank and there's too much extra in owning houses that will end up costing the HOA far more money.

AND

Some bad behaving homeowners should be dealt with in court to craft a legal order to get them to knock it off instead of just increasing fines and making lawyers the ones that benefit.
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Old 05-01-2011, 06:38 PM
 
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Originally Posted by GCharlotte View Post
.... One thing that I wondered when it comes to the double-foreclosure issue is why not just put the lien on the property for a few months or whatever without trying to beat the bank to the courthouse? If the bank is going to foreclose then the HOA is going to be out the fees but I bet the lawyers won't....
A foreclosure is not a bankruptcy. If the bank forecloses on the property, then it will become the new owner and will be responsible for the HOA fees.
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Old 05-01-2011, 06:39 PM
 
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Originally Posted by yantosh22 View Post
Try reading it in context as it might help you to understand. It's "simple" compared to the suggested alternative of an HOA going to court with the plan of having a judge make a criminal charge for what is a civil offense.
I think we misunderstood each other on this. My point is with a court order if you ignore it you are in contempt of court. I don't advocate using this for bill collection (though some creditors nowadays are for default judgements) but for avoiding it as a bill collection altogether.

There are two types of HOA FCs. If it involves more than just assessments (fines as in your example) then there has to be a judicial FC anyway. So in that kind of case, it isn't simple or at least as simple as for assessments.
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Old 05-01-2011, 06:42 PM
 
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Originally Posted by yantosh22 View Post
A foreclosure is not a bankruptcy. If the bank forecloses on the property, then it will become the new owner and will be responsible for the HOA fees.
Source? The main reason that you are wrong here is that the new owner at an auction IS the HOA (usually) or a holding company. At that point the lien is extinguished as a matter of law since the "winner" of the auction is the HOA itself.

Or, are you saying that the HOA buys the property at auction AND files the lien against themselves?
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Old 05-01-2011, 06:44 PM
 
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But a HOA is not a creditor so bankster laws don't apply. The law is pretty specific on how a HOA can respond to failure to pay by the same law that legislates its existence in the first place.

HOAs don't hold liens on property as a payment for "credit". You are getting them confused with mortgage holders.
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