ARE ASSOCIATION FORECLOSURES A FRAUD ON THE PUBLIC?

By
Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY
https://activerain.com/droplet/5h5m

After being the winning bidder at an association foreclosure sale, one of my clients recently complained to me that Condominium or Homeowner Association foreclosures of liens are a fraud upon the public.  There is some truth to the statement and understanding his anguish on his own loss of $50,000 by being the "successful" bidder on one of them underscores his reasoning.

The foreclosure process of an association lien for non-payment of association assessments, is a straight forward process.  The property owner becomes delinquent, then the association places a lien on the property, and then the association files a foreclosure lawsuit that eventually forces a sale of the property through a public auction - the foreclosure sale.

Foreclosure process unique to association lien:

In the foreclosure process there is a very important difference between a foreclosure of a first mortgage and the foreclosure of an association lien.  That difference is the naming of defendants in the association foreclosure as opposed to a first mortgage foreclosure.

A first mortgage foreclosure names all inferior lien positions that may affect the property.  This includes 2nd and 3rd mortgages, the association itself, and anyone having a judgment or other lien, like the IRS or the state taxing authorities.  At the end of the litigation, ALL of the defendants have their liens eliminated from the title of the property.

But in an association foreclosure, the names of all inferior lien positions that may affect the property are also named, except for any lien positions that may be superior to the association lien.  The superior position is usually the first mortgage.

Is looking at the pleadings of the foreclosure enough?

If the potential buyer at an association foreclosure sale looks at the pleadings and the complaint filed in that case, no first mortgage will be shown.  Unfortunately plenty of buyers at association foreclosure sales stop in their due diligence after review of the complaint and the foreclosure file.  What they are not doing is to look at the current owner public records for any judgments or liens that may affect the property and any first mortgage that could be on the property.

Buyers either have to learn how to do a thorough title search or they need to pay a title company to do it for them, and if the latter, they need to know how to interpret the title report.

Other complications:

This subject can be even more complicated by the rules and regulations that may affect the association foreclosure buyer (or any foreclosure buyer) if the property is also governed by a mandatory club membership, which the foreclosure buyer may have to pay even though the property is resold and the buyer never lives in the property.

As for my client that lost the $50,000, he did his research, missed the fact that the foreclosure of the first mortgage was not completed prior to the foreclosure sale of the association lien, and then lost the property when the first mortgage foreclosure was completed.

Be aware:

The association foreclosure buyer must be aware of all of the downside risks - or they are likely to have made what they think is the buy of the century only to find out they lost their entire investment.  It may be possible for an association buyer to negotiate with the first lender to a payoff of that loan, however if there is equity in the property and a foreclosure of the first mortgage would yield a complete recovery for the lender, a negotiated settlement is usually wishful thinking.

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Copyright 2019 Richard P. Zaretsky, Esq

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., ZARETSKY LAW GROUP. ATTORNEYS AT LAW, 1615 FORUM PLACE, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660   RPZ@ZARETSKYLAW.COM - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide www.ZARETSKYLAW.comwww.AUTOLANDTITLE.com 

See our easy to find articles at

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Re-Blogged 1 time:

Re-Blogged By Re-Blogged At
  1. Gabe Sanders 02/10/2019 10:00 PM
Topic:
Home Buying
Location:
Florida
Groups:
Century 21 Network
RE/MAX Active Rain Bloggers
Short Sales and Forclosures ONLY
PALM BEACH COUNTY SHORT SALES
Palm Beach County Pros
Tags:
foreclosure attorney florida
foreclosure attorney palm beach
real estate attorney florida
palm beach attorney real estate
real estate attorney palm beach
short sale attorney palm beach
association attorney florida
palm beach lawyer real estate

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Rainer
409,493
Rose Mary Justice
Synergy Realty Pros - Dandridge, TN
Synergy Realty Pros

Thanks for this information.   I had not ran across this situation so it is eye opening for me.

Jan 30, 2019 05:40 AM #1
Rainmaker
4,796,451
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

The rules and encumbrances really should be made more transparent in such cases.  Though, I just don't feel all that sorry for these folks that keep scouring for their "deal of a lifetime" and try to game the system.

Jan 30, 2019 05:40 AM #2
Rainmaker
772,245
Bruce Walter
Keller Williams Realty Lafayette/West Lafayette, Indiana - West Lafayette, IN

Richard, thanks for this great information!  It is a clarion call for real estate agents who are not sure in such areas to have their friends or clients seek competent legal advise as there are unforseen pitfalls that could cost an agent or investor dearly!  Does the IRS have to file a lien in a timely manner?  I have read about cases where they have not.

Jan 30, 2019 06:20 AM #3
Rainmaker
280,033
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

OMG we see this every single day from people calling seeing that they made the mistake!

Jan 30, 2019 08:04 AM #4
Rainmaker
280,033
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Bruce - IRS lien in a timely manner?  Not quite sure what you mean.  An IRS lien at anytime while the debtor owns the property creates the need for the IRS to be a party and gives the USA an extended right of redemption (I think 180 days) from the date of the certificate of sale in the foreclosure sale.

Jan 30, 2019 08:06 AM #5
Rainmaker
3,185,207
Sally K. & David L. Hanson
EXP Realty 414-525-0563 - Brookfield, WI
WI Realtors - Luxury - Divorce

Well...now there is a piece of education..have not seen/heard of these before now.

Feb 11, 2019 11:03 AM #6
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Rainmaker
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Richard Zaretsky

Florida Real Estate Attorney
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