QUESTION

Is a HOA foreclosure legal without notice?

Asked on Sep 02nd, 2011 on Bankruptcy - California
More details to this question:
A paid-off property in my family was foreclosed on by an HOA, without due notice. We received an eviction notice from the โ€˜new ownersโ€™ yesterday when we stopped by to check on the empty place that is being shown. We have such little time and any help would be so appreciated. My Grandmother lived in and bought her condo 15 years ago with cash. Grandma died in 2010. Her son, my father, was the Power of Attorney in charge of Grandmaโ€™s estate. Dad was diagnosed with cancer in 2008. When he received notification from the HOA that Grandmaโ€™s property would be in foreclosure due to owing one years worth of HOA fees, he was weeks away from passing and was not coherent, so no one knew this was happening. The HOA says his spouse signed for the paperwork, as she was with him along with his children, providing hospice care to him in his home. Dad died in February, 2011. In about January, 2011, the condo was placed on the market by my father, and was being shown to many potential buyers. After dadโ€™s death, my sister became the Personal Representative of Grandmas estate in June, 2011. This was after the first notice was sent in February, but before the foreclosure auction of the property which happened a few weeks ago. My sister was not aware that any fees were due, and was not receiving any correspondence from the HOA, because it was being sent to my dead father (The HOA personally knew my father and was aware both he and my grandmother had died). My sister continued with the same realtor and proceeded to show the property through all of this. The buyer as well as the condo community came into the apartment, saw it was being shown, also used Open Houses from our own realtor, listed it themselves, then finally auctioned it off, all without every telling the realtor that frequently would talk to them as she came into the building to show the unit. On August 31st, we discovered a note on the unoccupied unit saying there was a 3-day notice to evict.
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7 ANSWERS

Debtor's Rights Attorney serving Atlanta, GA at Theodore N. Stapleton, P.C.
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It sounds like notice was acknowledged by the Dad's spouse.
Answered on Jun 11th, 2013 at 1:06 AM

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Elvin Garry Grundy
Arizona law requires HOA directors to deal openly, fairly and always in good faith with members subject to the Covenants, Conditions, Restrictions, and Easements. (See A.R.S. 10-3830) Given a home owners' association owes a fiduciary duty of care to members of the association in administering fee assessments (See Divizio v. Kewin Enterprises, 666 P.2d 1085 (Ariz. App. Div. 2 (1983)), their pursuing an unconscionable judgment lien will trigger liability under Section 10-3830 and for common law breach of contract under the CCR&E. Furthermore, even if the HOA did obtain a judgment for any alleged violations, the judgment becomes a lien only upon sale of the property. (see A.R.S. 33-1807(for Planned Communities), 33-1256 (for condominiums).
Answered on Sep 07th, 2011 at 9:45 AM

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Samuel Lee Tucker
You need to hire an attorney. Very likely the foreclosure can be set aside due to the circumstances around the notice events coupled with the resulting unjust enrichment.
Answered on Sep 05th, 2011 at 8:20 PM

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Challenging the validity of a foreclosure usually requires filing a lawsuit. Consult with an attorney who is familiar with foreclosure law.
Answered on Sep 02nd, 2011 at 7:50 PM

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Glen Edward Ashman
You should see a lawyer to be sure although nothing in your post tells me the HOA messed up. But it sounds like the real incompetence may be the estate representatives and they may get sued by the other heirs if that is the case.
Answered on Sep 02nd, 2011 at 6:55 PM

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Bankruptcy Attorney serving Livonia, MI at Charles J. Schneider, P.C.
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A HOA foreclosure is never legal without notice. However you have a question of fact whether notice was sufficient.
Answered on Sep 02nd, 2011 at 4:57 PM

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Bankruptcy Attorney serving Hayward, CA at Carballo Law Offices
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It sounds like there was notice given although the type of notice and to whom it was given may not have been proper, particularly if there was an estate open for your grandmother at the Superior Court (or was it only a power of attorney and your sister was the attorney in fact? not clear). The real estate agent should have been aware of the situation also. Also, if your sister was the personal representative or attorney in fact then she had a duty to find out if the bills were being paid and attend to it. Your situation is too complicated and requires a consultation with an attorney that handles real estate law and not bankruptcy law. If your sister is in charge then she is the one that needs to consult with the lawyer.
Answered on Sep 02nd, 2011 at 4:32 PM

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