Years after vacating their homes, borrowers still can be stuck with HOA fees [6-23-15]

Article Courtesy of The Tampa Bay Times

By Susan Taylor Martin

Published June 21, 2015

Seven years ago, Renee Abuton realized she was juggling too much — student loans, car payments, mortgage payments and homeowners association fees.

Abuton, then a single parent, declared bankruptcy and let the mortgage company repossess her Pasco County home. Once the company had the property, she figured, it would start paying the HOA fees.

Wrong.

Although Abuton had been locked out in 2008, the lender didn’t take title to the house until several years later. In the meantime, while the house remained in her name, he was responsible for all HOA fees that accrued.

A few weeks ago, Abuton got a bill for 80 months’ worth of delinquent fees — a total of $28,000.

“When you’re struggling to go from week to week and you get something like that, it’s a bit overwhelming,” Abuton, 52, said.

In the past year, some banks have started playing hardball with borrowers in bankruptcy who say they will surrender their homes but actively fight foreclosure. At the banks’ behest, at least three Florida judges have taken steps to punish debtors who failed to honor their agreements to surrender their property.

Renee Abuton holds a letter she received saying she now owes $32,000 in unpaid Home Owners Association dues even though the bank took back her Holiday home
eight years ago.

The other side of the story involves people like Abuton. They willingly surrendered their homes and moved out, only to find they are still responsible for years’ worth of HOA fees and other liens because the lender dragged its feet in taking title.

“I’m not saying there aren’t abuses by some debtors, but I think, systematically, what the banks have done is much more abusive,” said Joel Treuhaft, a Palm Harbor lawyer representing Abuton.

There is no way to tell exactly how many people who declared bankruptcy have found themselves in the same predicament as Abuton. But other lawyers say it’s a common problem.

“I see a lot of frustrated debtors who truly want to surrender their home, but with the lenders taking their sweet time in the foreclosure process, many of these debtors end up with the property still in their names after the bankruptcy is over,” Samantha Dammer, a Tampa attorney, said.

Especially “frightening,” as Dammer puts it, are cases in which a homeowners or condo association is involved.

“I have folks that have walked away from upside down condos, (on which they owe more than the condo is worth) and years later, they are hit with crippling debts for the unpaid assessments,” she said.

Under Florida law, lenders can’t be held liable for more than 12 months of past-due HOA payments, or 1 percent of the total mortgage amount, whichever is less. As a result, it can behoove a lender to delay taking title if the delinquent fees run into the thousands of dollars.

Abuton didn’t realize that when she made the painful decision in 2008 to file a bankruptcy petition.

A Wisconsin native, she moved with her daughter to the Tampa Bay area to be close to relatives and study architecture at St. Petersburg College. She went to work for an engineering firm and bought a villa-style home in the Edgewood of Gulf Trace community in Holiday.

“I bit off more than I could chew,” she said. “I had been trying to juggle going to school, working and handling a household, and the HOA fees had gone up quite a bit. Then some of my appliances broke, and I had to get those replaced. There was just a number of things that didn’t go my way.”

Four months after filing her bankruptcy petition, Abuton got a discharge of most of her debts except for the student loans and the mortgage. She already had moved out of the home in late 2008 when she got a letter from the mortgage company saying it was going to “winterize” the house and change the locks.

“In my ignorance, I thought that was the foreclosure,” she said. “It really wasn’t; they were just protecting the property.”

A few years later, Abuton was at work when an officer of the homeowners association came by. He told her the house had flooded and that she needed to do something about it.

“I said, ‘There’s nothing I can do because the bank owns it.’ He said, ‘Your name is still on the deed,'” Abuton said.

Abuton’s mortgage had been bundled with others into a security called the Oakmont Mortgage Pool 285 LP. Lawyers for the pool didn’t start foreclosing until 2011 and didn’t officially complete the process until last year.

By then, the homeowners association had gotten a judgment against Abuton for $28,880 in delinquent dues and attorneys fees.

Neither the attorney nor the property management company for the association returned calls to comment. Records show the HOA has been active in going after owners who don’t pay their fees, which associations rely on for maintenance and repairs of common areas like pools.

In May, the association proposed a settlement whereby Abuton would pay off the fees in 80 monthly payments of $350, ending in 2022.

Abuton, since remarried, said she shouldn’t have to pay since she hasn’t lived in the house since 2008. Her attorney, Treuhaft, thinks her best bet is to try to force the mortgage company to pay most of the amount since it had possession of the property for years after she filed her bankruptcy petition.

“That still makes (her) liable for one or two months post-petition,” he said. “But it’s better than 80 months.”

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