I thought to bring this discussion over to this forum. If an association hasn't filed a Lien on a property prior to a bank filing an LP have they abandoned their right? feedback and discussion appreciated
Here's what I found:
According to Florida Statute §48.23 the Association may not be entitled to bring these separate foreclosure actions. This statute states, "...recording of such lis pendens...constitutes a bar to the enforcement against the property described in the notice of all interest and liens...unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes...within 30 days after the recording of the notice."
In U.S. Bank Nat Assn v. Quadmaine Condominium Association, No. 4D12-422, the Court applies the statute to the following facts: The bank recorded a supplemental Lis Pendens in connection with a re foreclosure; following the recording of the supplemental Lis Pendens, the condominium association files its lien and suit to foreclose. Under these facts the Association had to intervene in the bank foreclosure within 30 days of the recording of the Supplememtal Lis Pendens, and failing to do so barred the Association from liening the unit and foreclosing its lien.
The affect on pending mortgage foreclosures is to prevent the Association from initiating a separate law suit for delinquent assessments when it doesn't have a recorded lien at the time the bank's Lis Pendens is filed. If assessmemts are delinquent, if and when the mortgage foreclosure is settled through modification or otherwise, the delinquent assessments will need to be immediately resolved to avoid a second, successive foreclosure action. But, the Association is not be able to interfere in the pending bank foreclosure by threatening to foreclose its own lien quickly, allowing the owner the time to fully defend the mortgage foreclosure and seek a fair resolution of the case.
This may be true, if the HOA fails to intervene, but it does not affect the outstanding, and continually accruing, HOA dues. I'm not sure if there are any special circumstances in this case, but I see HOA's foreclosing consistently After the bank has filed the LP. I doubt if they all had liens filed prior to the mtg LP, as most owners keep paying their HOA dues for a while after they stop paying the larger mtg payment. If a third party buys the unit at the mtg. Foreclosure auction they are still responsible for all past dues, interest and attorney fees. If they don't pay, the HOA can foreclose on the new owner. If the bank gets the property back at the mtg. foreclosure auction, they are responsible for the lesser of one year's dues, or 1% of the original mtg amount.
I love HOA members when I am digging up dirt on them, and I like to see them start to sweat.
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