Doesn't the "Soldiers and Sailors Relief Act" come into play here somewhere ??
73, Dick, W1KSZ
> Date: Tue, 6 Jul 2010 08:44:14 -0700
> From: atrampler@att.net
> To: attorney@immigration-lawyer-us.com; TOWERTALK@contesting.com;
> james.nail@att.net
> Subject: Re: [TowerTalk] HOA Abuse
>
> One thing is certain: None of us have all the facts, so there's a lot of
> speculation here.
>
> On the one hand, the idea that if they owned the house free and clear,
> certainly they could afford the dues may be specious; the man does not appear
> to be a career officer, as he was "called up" to active duty. He may have
> taken a 60% pay cut when called from reserves to active duty, creating real
> hardship.
>
> On the other hand, per this article,
> http://www.wfaa.com/news/local/HOA-that-Foreclosed-on-Active-Duty-Officer-Getting-Death-Threats-96842614.html,
> the family was behind on HOA dues before he was even called up and deployed
> and had been sent notice of such delinquency; and when gone overseas, his
> wife did not open mail from HOA, return calls, etc.
>
> Does the law create unjust enrichment? Perhaps, but that's a question of
> substantive due process, perhaps: does the law, when duly followed, deprive
> someone of property without due process? Some of us think that line of
> reasoning is a slippery slope, but it's used in many cases.
>
> Some states require all developments to have HOAs and covenants, without
> dictating the terms of those covenants; combined with the issue of HOA
> 'annexing" it does raise a question as to when a voluntary association
> becomes a body of government, or is no longer voluntary.
>
> At a deeper level it may be a symptom of how a society can move from a system
> of minimal necessary restriction on individual choice to increasing
> regulation/limitation of choice, as more bureaucracies are created,
> bureaucracies which often do not have the power to say "yes" but can safely
> say, "No."
>
> KØRO
>
> --- On Tue, 7/6/10, Jim Nail <james.nail@att.net> wrote:
>
>
> From: Jim Nail <james.nail@att.net>
> Subject: Re: [TowerTalk] HOA Abuse
> To: "Paul Christensen" <attorney@immigration-lawyer-us.com>,
> TOWERTALK@contesting.com
> Date: Tuesday, July 6, 2010, 9:54 AM
>
>
> Normally any HOA ive been around only has the ability to place a lien on the
> property, not foreclosure! Are these new laws so dominating that you can't do
> anything? Jim WA2MBP
> Sent via BlackBerry by AT&T
>
> -----Original Message-----
> From: "Paul Christensen" <attorney@immigration-lawyer-us.com>
> Sender: towertalk-bounces@contesting.com
> Date: Tue, 6 Jul 2010 10:30:37
> To: <TOWERTALK@contesting.com>
> Reply-To: Paul Christensen <attorney@immigration-lawyer-us.com>
> Subject: Re: [TowerTalk] HOA Abuse
>
> > The guy agreed to the HOA rules. They did not respond to
> > the bills. You don't pay your bills, you lose what you have.
> >
> > I am not real sure where the issue is.
>
> Good point, but if you were serving in Iraq and the situation occurred to
> you (however unlikely), I am 100% confident you would not sit back and say
> "I deserve to have lost my $300,000 home while serving my country because of
> my wife's failure to make timely payments." If the NPR story is correct,
> two payments went delinquent. That said, even though the covenants operate
> under the general principles of contract law between parties, an important
> part of general contract law relates to the concept of "unjust enrichment."
> Notwithstanding any potential relief under the Servicemembers Civil Relief
> Act, he may have a defense in the unjust enrichment that resulted in the
> loss of his home, triggered by language in the agreement. Whether or not
> the State of Texas understands that concept remains to be seen.
>
> In effect, the circumstances in the captain's case amount to "legalized
> theft." Another general principle of contract law is that a breach
> resulting in damages is generally limited only to actual damages, regardless
> of what's been agreed to in writing. Even an agreement between parties to
> liquidated damages or specific remedies in the event of breach must be
> reasonable. It's pretty difficult to believe that missing one or two HOA
> payments results in damages to an aggrieved HOA that far exceed actual
> damages. If that kind of condition operates as a matter of law, then the
> constituents of Texas need to apply pressure to their elected officials to
> change the law. However, consider that in Texas, Republican State Senator
> John Carona owns the largest HOA management company in the country -
> Associa, which has more than 100 offices, 6,000 employees and 7,000 HOA
> clients in 30 states and Mexico. So, as a tax payer in his legislative
> district, do you take your issue to a senator who has a clear
> conflict-of-interest in the very law for which he has significant influence?
>
> I hope the present homeowner doesn't get too comfortable in his or her new
> surroundings. Frankly, even if the captain later loses his case in court, I
> hope his community pulls together to apply substantial pressure on their
> state legislature to find an alternate means of dealing with this -- for
> example, allowing other personal property to satisfy a debt while leaving
> foreclosure of the home as a last resort. Also, property owners may want to
> work with their HOAs to place dues/fees in escrow ahead of time they become
> due and payable.
>
> Paul, W9AC
>
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