The Fair Debt Collection Practice Act (FDCPA) was enacted to protect consumers from unscrupulous debt collectors; as a shield against prohibited acts. However, it is now often used as a sword, by attorneys who are part of a “cottage industry” that simply look for even the smallest of violations and then claim thousands of dollars of attorney fees and damages in their first letter to the alleged violator. Continue Reading Foreclosing on a Unit When Owner Discharged in Bankruptcy
In New Jersey, the United Stated Bankruptcy Court held in In re. Smiley, 569 B.R. 377 (2017) that a Unit Owner/Debtor can modify the Association’s lien and strip off all but the six month super lien allowed under the state’s condominium act. The facts at the time were that the Association was owed $9,000 for filed liens and another $4,700 that it recognized as unsecured. At the time of the bankruptcy filing, the monthly assessment was $250. The fair market value of the property according to the bankruptcy schedules was $142,000, but it was under water because of a $174,000 first mortgage on the property. Based on these facts the Unit Owner/Debtor claimed, and the court found, that despite the proper lien filings, the Association only had security for $1,500 ($250 x 6 months). Continue Reading Chapter 13 Bankruptcy – Can the Association’s Lien for Unpaid Assessments be Stripped Off? YES
Most states, including Wisconsin, follow the American Rule when it comes to attorney fees. In simple terms, it provides that each side in a lawsuit is responsible for their own attorney fees (win or lose) unless:
- A statute or law provides otherwise; or
- A contract provides otherwise.
Because the law recognizes your Association documents as contracts between the Association and it owners or members, a provision allowing attorney fees may be found there. Continue Reading Attorney Fees – How Do I Get a Court to Award Them to My Association and What is a Fee Shifting Provision?