Foreclosure in 77373>Question Details

Eric, Home Buyer in Spring, TX

Can the HOA in Texas forclose for nonpayment of dues if there is a mortgage lien?

Asked by Eric, Spring, TX Mon Aug 18, 2008

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The short answer is yes. There are some limitations, but for the most part HOAs in Texas can foreclose whether there is a mortgage lien or not. A great resource that I have found for HOA issues is a book called Texas Homeowners Association Law, which is a legal guidebook written for non lawyers on the laws that regulate HOAs in Texas. The book includes subchapters on judicial and nonjudicial foreclosure of liens by HOAs. You can find more information about the book at http://www.TexasHOABook.com.
Web Reference: http://www.texashoabook.com
1 vote Thank Flag Link Fri Dec 24, 2010
Hello Eric and thanks for your post.

Unfortunately, the answer in all states of the US is a resounding yes. The CC&Rs, which are restrictions that are said to "run with the land" (in other words, anyone who owns the land will be bound by the conditions) provide the authority of the Association to create and encumber homes with assessments, and these assessments under most laws are enforceable by court action.

But, unlike a mortgage company that can be extremely difficult to derail during a foreclosure process, working with your homeowners association can be far easier.

Most importantly, remember, it is NOT in the homeowners association's best interest to own your home. Typically, the lien created by the assessment is an unsecured lien, so while it can result in foreclosure of the home, a secured lien holder's debt (such as the debt from the mortgage company) is NOT wiped out in the process. Anyone assuming the title of the home through a foreclosure action of this type will either have to pay off the secured liens or arrange to assume the loan. In most cases, an HOA is ill equipped to do either so it is in their best interests to work with you, and, indeed, they will provided, of course, you move quickly to contact the attorney and the Association to resolve this issue and not wait until it is too late.

Immediately contact the attorney who sent to you the notice of default or foreclosure. Explain your financial situation and make arrangements to pay off the amount due, of if that is not possible, coordinate a payment plan. Keep in mind that you will need to at least pay for the monthly assessment, interest, legal fees and late charges each month, and work to completely pay off the total due within 1 year or less. Any less is unlikely to be accepted by the homeowners association's Board of Directors.

Good luck and contact the HOA today to ensure that your home remains in your hands!

Sincerely,
Grace Morioka, SRES, e-Pro
Area Pro Realty
Co-Author: Homeowners Associations: A Guide to Leadership and Participation
Co-Host: Naked Real Estate on http://www.blogtalkradio.com
1 vote Thank Flag Link Tue Oct 6, 2009
How can I dispute fees my home owners association has charged to my account?
0 votes Thank Flag Link Tue May 27, 2014
How can I dispute fees my home owners association has charged to my account?
0 votes Thank Flag Link Tue May 27, 2014
It it pretty scary to find out the power HOA's have. One thing you can do besides keeping in contact with the HOA is contact your lender. Your lender most likely doesn't want to deal with having to try to help after the fact and besides that, the options are less likely to be in your favor. However, if you get into a bind you can write your lender asking them to pay the amount your behind but you'll need to explain how and why you got behind.

They will decide whether or not to get you caught up but beware, they will add the amount to you escrow which means a higher house payment for however long your lender has agreed to allow. It could be within a year or you could negotiate for longer. It depends on the lender but its definitely much less of a headache than the alternative.

This is only a suggestion based on my own experience. I don't mean to imply this is something that can be forced upon your lender, its entirely up to them. Also, depending on the circumstances, your lender may have other options they might be willing to offer. In my opinion, its just as important to keep the lender in the loop as it is the HOA. No communication is the worst thing you could do.

Good luck!
0 votes Thank Flag Link Wed Aug 8, 2012
Here's a link to a great resource for homeowners like myself being threatned with foreclosure from HOA's. This is a new service and alternative to the horrindous practice of charging already financially strapped homeowners obscene attorney's fees along with every other fee so that you may keep your property. Check out the link below. I hope it helps. They also have new laws passed in Texas that help homeowners with thes matters. Check it out on the same website.

http://stoptexashoaforeclosures.com/article/Business/Busines…
0 votes Thank Flag Link Sat Jul 23, 2011
They can and they will. Check out this petition and help encourage the Texas legislature to stop this practice.
http://www.change.org/petitions/view/stop_hoa_forclosures_in_texas
0 votes Thank Flag Link Mon Jul 19, 2010
Eric, As you have seen, the answer is yes. There was a landmark court case that put the lid on this issue a few years ago. The court decided that since the Conditions, Covenants and Restrictions create the right to the lien, and since they are recorded prior to the lenders lien the homeowner (and lender) is technically on notice about the potential lien. It is very much like a recorded right of first refusal.

Let me know if I can help further,

John Axt
832-229-6667
0 votes Thank Flag Link Sun Oct 4, 2009
Eric: I have no hidden agenda or ulterior motive in answering your question. That is to say, I'm not saying others do, but I'm not after your business. I definitely have no love for Citi Financial or most home owners associations. I lived in one (HOA) outside Houston for many years, and they bordered on Gestapo. They would make sure no cars were on the curb more then 24 hours, by chalking the tires. They sent me nasty letters about my new pick-up in my driveway overnight and eventually we moved out to 40 acres with no neighbors. I actually went to University of Texas School of Law, but never practiced. It was after I returned from Vietnam. As I wrote before, I was a Broker in 3 different states and owned many apartment complex's and condo's and homes in Texas totaling over 1000 units back in the 70-80's. Before and after the banking bust and RTC taking over bankrupted banks. The short answer is YES, but there's a caveat to my YES! If they decide to foreclose after notifying all parties concerned, they still are on the hook to the lead lender and to pay taxes and property insurance. Plus, generally keep the lights on. It's in their best interest to: A) Work things out with you, or B) Get a judgement so they get paid if and when the property is sold. If the property has a lot of equity, it might be feasible for them to pursue foreclosure. Otherwise, unless the property is abandoned it's best for them to get a judgement. Best of luck, in these really hard times! -Sean
0 votes Thank Flag Link Wed Aug 20, 2008
They can and they do. If you're having trouble paying call the HOA and try to work out a payment plan or some other type of arrangement. Every HOA is different, but the last thing they probably want to do is foreclose. It's risky for them and expensive for you as they're going to charge all those expenses back to you.
Web Reference: http://www.teamlynn.com
0 votes Thank Flag Link Tue Aug 19, 2008
Bruce Lynn, Real Estate Pro in Coppell, TX
MVP'08
Contact
Hi Eric,

This is a great question and the answer is not a simple one. I am not a lawyer so please do not take this as if I was a lawyer. You need to contact a Real Estate attorney to ge safe. HOA CAN foreclose on your property for non payment even if Citi has a lien on it. They are supposed to notify all lien holders before they forclose or auction your property - just like they notified you. If they fail to do so, then the lien holder still has a lien and a right to the house. If they DID notify all parties, then in most cases the lien holder (in this case Citi) will stop the forclosure or purchase the property from the HOA directly. As you can see it is a little complicated.

Let me know if I can help you or any of your family and friends with your real estate transactions.

Juan Carlos
0 votes Thank Flag Link Mon Aug 18, 2008
HOA's, in TEXAS, can foreclose on a property within their association for non-payment
0 votes Thank Flag Link Mon Aug 18, 2008
Eric,

Very simply.. YES.. check out Ute's and my response here:
http://www.trulia.com/voices/Foreclosure/Citi_Financial_hold…

I've not known for HOA's to immediately foreclose in the same year; but I've seen numerous HOA foreclosure happen right here on our courthouse steps on the first Tues. of the month.
Web Reference: http://www.eXposedHomes.com
0 votes Thank Flag Link Mon Aug 18, 2008
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