I own a townhome with which I have a mortgage with Wells Fargo. There is also a homeowner's assoc. I have not paid the assoc. or the mortgage in some time due to my deplorable financial situation. Therefore, both the bank and the assoc. have filed Lis Pendens. The assoc. has also liened the property. However, I have a contract on the home to do a "short sale," but, I recently received notice that the assoc. is seeking a summary judgment from the court. Can the assoc. foreclose on me before I have a chance to negotiate the short sale? Can they do this even though the bank is in first position?
2 Answers from Attorneys
Absolutely the HOA can foreclose. Your obligation to the HOA has nothing to do with your mortgage or your attempt to short sale. Homeowners too frequently do not understand that their HOA can foreclose more quickly than the mortgagee (Wells Fargo, in your case.)
You are obligated to pay assessments until title transfers. The HOA probably has two counts in its complaint - one for foreclosure and another for damages. That means that the HOA can also seek a personal judgment for the assessments you owe, late fees (if authorized by the covenants), interest and attorneys fees and costs.
Unless you can negotiate and complete a short sale in the very near future, you should be negotiating a payment plan with your association. Otherwise, the HOA could well foreclose before you have a chance to short sale. A judgment for "damages" is valid for 20 years.
The "short answer" for a "short sale":
You should go to the summary judgment hearing and during that hearing ask the judge to postpone the foreclosure for a time.
If you were flush I would recommend engaging an attorney to review the filed papers to see if the foreclosure proceeding is ripe for summary judgment.
You may also wish to inquire of your County Legal Services Agency and Florida's Consumer Protection Agency (on line). To wake up the Bank to the possibility of a short sale you should also ask that a "mediation" be conducted [depending on the fees].
This is not a legal opinion. To obtain a legal opinion you need to formally engage an attorney and sit down with that attorney one on one.
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