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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 116166
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Can my HOA file a law suit to foreclose on my florida homestead

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Can my HOA file a law suit to foreclose on my florida homestead and at the same time try to also file a suit to evict me as a unknown tenant.? I am in dispute with my HOA SOME PAST DUE FEES THAT I feel I paid in full. So they filed a civil lawsuit against me to forclose, I replied to the complaint, disputed, and asked for demand for discovery, Now in the meantime while we are back and forth over the discovery, they place a notice to evict unknown tenants, and inform any future rents be paid directly to them. I answered the notice, and stated their are no tenants staying on my property, only myself ,legal wife and two minor children, and I asked the court to dismiss the eviction notice. I also called and spoke with the attorney for the assoc. and explained no one lives on the property but my family and he assured me they wont pursue the unknown tenant eviction. however, I received a notice from the judge to appear for mediation on the unknown tenant eviction. how can the assoc. law firm attack me for the same matter on two fronts, if I don't appear for the mediation I could lose and the judge order possession to the assoc. If I appear and we don't agree the eviction will be set for trail, and the case determined, why before the first civil foreclosure suit is heard. It seems they get two bits at the same apple. why would the state of florida give a HOA, the statue authority to pursue foreclosure and also allow the to gain possession by unknown tenant eviction as well. ? And how can I be the parcel or property owner bt vistue of my deed and florida homestead and also be a tenant.? please reply soon I am in a pickle... Thank You
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am afraid that FL law allows a HOA to seek judicial foreclosure even if it is your homestead. If you are not living in the property, under FL law it is not considered a homestead, especially if you are renting it out. Your protection to the foreclosure suit, since you have disputes with the HOA, would be filing a counter suit against the HOA for those disputes.

The tenant being on the premises is a separate matter from the foreclosure for non-payment of dues, which is why they can proceed on both actions. They are two different actions for two different issues. Unfortunately, you are going to have to fight both issues with them I am afraid. The tenant being in possession of the property is one issue that the HOA can seek to prevent and foreclosing on the property for your non-payment of fees is another issue they can attack. It is not really two bites on the same apple, it is attacking two different issues involving the same property.

They have to prove of course there are tenants staying on the property, which you claim there are none. If there are no tenants and you prove this to the mediator or court, then this eviction action must be dismissed and they bear the initial burden of proof of there being tenants on the premises. If you counter whatever proof they present and prove no tenants reside there then you would win this action and if you prove they knew or should have known there were no tenants, then you can seek damages from them in the form of your attorney's fees for them bringing this suit.

The issues over the HOA dues and foreclosure for non-payment of dues would be another issue and you would have to countersue for your dispute over those fees. You would be required to present evidence as to how those fees are not valid and you do not owe them in order to survive the foreclosure action.

You need to appear on both actions though and fight them on both issues separately.

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Customer: replied 4 years ago.

I called the mediation department and they said nothing of them having to prove there actually exists any tenants on my property and if not the case would be dismissed. they simply said if we can reach an agreement the case would be set for trail. And how in the world will they prove their are tenants? And like wise how do I prove there are not? this whole miss started a few years back. I owned a million dollar home, and signed a ten lease with a option to buy with my prior boss on the present home in question. He was responsible for all bills and dues and fees, however in 2010 he stopped paying and I took action with two law firms cause neither did their job. finally I paid him to leave in nov. 2011, and moved in the home in dec. with family. At which time the Hoa informed me in feb. 2012 there was 2010, 2011 dues and now 2012 dues owed. with a total amount of $ 895.00 I told their law firm I would gladly pay it however since I spent several thousand getting the home back and doing many repairs I would prefer to pay it in by installments and offered 300.00 that phone call, and 300.00 60 days and the bal. 60 days. and she could auto debit from my card if she sent me a form. She excepted the 300.00, than a couple days later called and said the HOA wants 150.00 ea. month instead and I agreed to her sending a form or just calling me for the payment. well the form never came, and periodically she called and I made a payment of 150.00 each time she called. In june four months later I sent a check for 300.00 instead of 150.00 cause it seemed she didn't call me in may, and I wrote on the check paid if full for agreement . they cashed it , without making any mention to refuse or reserve right to collect more etc. One month later she called and said they were short 150.00 they only recieved 750.00 0f the agreed 900.00, I told I find that hard to believe I only thought you didn't call me in May and that's why I sent 300.00 and wrote paid in full for agreement. And if I was short why did they cash it and now call a month later. Anyway I replied I will check my credit card records and bank statements and if I cant find that payment I will gladly send it. Well she followed up a call in August and I told her I was sorry I hadn't got around to getting all the possible statements but I would. And late August or early sept. I sent a check for that payment even though I still wasnt totally sure they didn't get it already. The check was returned and stated it had to go to the law firm not the assoc. but than the law firm wanted to add a 100.00 attorney fee, for a letter a secretary sent, and a 175.00 account monitoring fee retroactive to 2 days after the first 300.00. I told them I didn't agree to a 175.00 fee to do a payment plan, otherwise I would have paid the 895.00 all at once. and why are you asking, for it now , plus a 100.00 attorney fee when you didn't ask for that in JULY or August ? I did tell them although they were unfair I would agree to the 150.00 payment they said I owed, dispite cashing my check, and I would agree to another 100.00 for attorney costs, but not another 175.00 for a payment monitor fee that was never disclosed , or agreed , prior to the acceptance of the first 300.00. And I wanted them to contact the HOA AND MAKE THAT OFFER. they replied the HOA declined it and wanted 150.00 + 100.00 + 175.00= 425.00, I told them I wasn't going to be bullied. AND I am in a mess. PS they wont have to prove at the mediation no tenant, that they will have to prove in court , correct?

The mediation department does not provide legal advice to anyone, they are not allowed to do so, which is why they cannot tell you anything.

As far as the HOA proving tenants are residing in the property, they need evidence, such as photographs or catching unauthorized persons residing in the property. As I said, they have the initial burden of proof and I do not know what evidence they might have. However, as in any lawsuit, you have a right to discovery, meaning you can serve them with requests for production of documents and interrogatories to make them disclose the information they have that they intend to introduce in your case so you know how to attack it.

If they cannot meet their initial burden of proof, you do not need to prove anything at all about the tenants. If they do have some alleged evidence, then you need to present your own evidence, such as witness testimony to counter their claims. At mediation, if they have no proof of tenants there is no reason to mediate, they have to have some evidence and if they do not you end the mediation and go to trial.

As far as your dispute over the fees, I understand the principle you are fighting over about the $175 plus $100 attorney's fees, but if you want to litigate over $275 this is not really an economical type of litigation for you, although you are free to do so, and you might want to consider offering them a settlement such as the $175 plus $50 attorney's fees to end this waste of your time and their time (just a suggestion as you are free to dispute this on the principle if you choose to do so and this was just a rational and reasonable suggestion).
Customer: replied 4 years ago.

I guess I am about done and I appreciate your replies, I agreed to meet them half way and pay the 150.00 and 100.00 for additional attorneys fees. and submit that for consideration and they said they did??? and the Hoa replied no. they wanted 425.00. since I refused. they filed the forclosure and the complaint requests appox. 3500.00 now.And if I felt bullied over the principle of the 175.00 monitor AFTER THE FACT THAN Imagine how I feel about the approx. 3,500. AS a honorable US veteran and Hoa member I felt I deserved fairness, and them to meet me at least half way. Now I have to hire an attorney to fight the whole case and the 3500. they shouldn't have cashed my check or return the 300.00 marked if full... I wish I could just settle for 425.00 now.. Do you think I have a good chance to prevail if I hire an attorney ??? thanks

Thank you for your response.

If you offered to settle the matter for what was owed and then the board refused and filed the foreclosure action, then you likely have good chances of defeating their refusal to negotiate this in good faith. Also, if they accepted your check marked payment in full, that is a binding agreement if they accepted the payment noted as "payment in full" as the FL Courts hold that if an offeror clearly attaches to his offer the condition that the offer, if taken at all must be received in satisfaction of the claim in dispute, and the other party received it, he takes that offer subject to the conditions attached to it, and the offer operates as an accord and satisfaction. See U.S. Rubber Products v. Clark, 145 Fla. 631, 200 So. 385 (1941).
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