Home-owner’s Associations, created by deed provisions to serve owners in condominium developments, are sometimes at odds with particular person house owners of items. Generally these conflicts escalate to the purpose the place the HOA really forecloses on a home-owner’s curiosity within the unit, leading to a complete loss to the house owner. The Davis-Stirling Widespread Curiosity Growth Act, codified in Civil Code Sections 1350-1376, provides an HOA the authority to levy assessments, which grow to be an involuntary lien towards the house owner’s curiosity when the HOA data a “Notice of Delinquent Assessment” (Civil Code 1367). Part 1367(e) provides the HOA the suitable to implement that lien in any method permitted by legislation, together with foreclosures. Thus, if the house owner doesn’t pay a delinquent evaluation, his or her curiosity could also be bought at both a judicial or non-judicial foreclosures sale, leading to the potential of the HOA turning into the proprietor of the unit and evicting the house owner from their very own dwelling.I lately got here in to signify an aged couple in Marina del Rey in such a case after a default judgment for judicial foreclosures. Fortunately, the legislature inserted stringent discover provisions in Civil Code 1367.1 by modification in 2002 and 1367.Four by modification in 2005, so I seemed to them to establish whether or not there was compliance. The provisions require that, thirty days previous to recording a lien on the separate curiosity of any proprietor, the HOA should give discover by licensed mail of its lien assortment procedures, the tactic and calculation of the evaluation quantity, an announcement that the proprietor has the suitable to examine the HOA’s data, and a particular warning that their curiosity could also be bought with out courtroom motion if the lien is positioned in foreclosures (1367.1(a)(1). In addition they require an itemized assertion of the assessments, late prices, assortment and legal professional’s charges, an announcement that the proprietor shall not be liable to pay the curiosity, prices, and prices of assortment whether it is decided that the evaluation was paid on time, the suitable to request a gathering with the HOA board, the suitable to dispute the evaluation by submitting a written request to the HOA for dispute decision pursuant to its required “meet and confer” program, and the suitable to request different dispute decision with a impartial third get together (1367.1(a)(2-6). The choice to report the lien have to be made by the HOA board by a majority vote (1367.1(c)(1)(B), and the discover of delinquent evaluation have to be recorded and a duplicate of the recorded discover served on the house owner by licensed mail. Part 1367.Four requires the HOA, previous to using foreclosures, to gather an evaluation over $1800, to supply the “meet and confer,” to make the choice to foreclose by a majority vote of the total HOA board, to offer discover of that call to the proprietor by private service, “in accordance with the manner of service of a summons (CCP sections 415.10, et. seq.), and to allow the homeowner a redemption period in cases of non-judicial foreclosure (Civil Code section 1367.4).Prior to the case of Diamond v. Superior Court, _____ Cal. App. 4th _____ (2013), decided by the Sixth District Court of Appeal on June 18, 2013, courts were refusing to overturn foreclosures if the HOA could demonstrate “substantial compliance” with the statute. The Diamond case held that the notice requirements of sections 1367.1 and 1367.4 must be strictly construed, “pursuant to the plain language of the statutes and their legislative historical past” and set aside the foreclosure sale in that case for the HOA’s failure to send the homeowner a copy of the recorded notice of delinquent assessment and failing to give the required pre-lien notice of a right to demand alternative dispute resolution.In my case, the homeowner came to me on the verge of a judicial foreclosure in an attempt to stop the sale and force the HOA back to the bargaining table. The HOA in that case had not yet personally served the homeowner with a copy of the board’s decision to foreclose on their home, and claimed that the statute did not specify when it should be served. Presumably, they could serve it any time before the foreclosure sale. However, the reason for personal service in accordance with CCP section 415.10 is to give notice of a legal process in order to comply with the principles of due process. As stated by the Diamond court, “We discover an expression of the Legislature’s intent relating to the general public function of the sections 1367.1 and 1367.Four and the statutory discover necessities within the legislative historical past. Part 1367.1 was added to the Civil Code in 2002 (Stats. 2002, ch. 1111, § 8) and amended in 2005, when part 1367.Four was added (Stats. 2005, ch. 452, § 5). In 2005, the Senate Judiciary Committee’s invoice evaluation said: “This bill protects owners’ equity in their homes when they fail to pay relatively small assessments to their common interest development associations.” (Sen. Com. on Judiciary, Evaluation of Sen. Invoice No. 137 (2005-2006 Reg. Sess.) as amended Sept. 1, 2005, p. 1.)”The fourteenth amendment to the United States Constitution provides that “no state shall deprive any individual of life, liberty or property with out due technique of legislation.” The legislative historical past of the modification creating part 1367.4, plainly requires the HOA board to offer discover of its choice to foreclose as a situation of foreclosures, which is a taking of property licensed by the state. Discover is an idea of due course of, and to require that discover to be given by private service, versus the opposite strategies of service specified within the Code of Civil Process, the legislature plainly prescribed the very best type of discover. The aim of such service statutes is to guarantee that due course of is glad. See American Categorical Centurion Financial institution v. Zara, 199 Cal. App 4th 383 (2011). Clearly, because the statute specifies private service of the board’s choice as a precondition of foreclosures, that service should happen earlier than the graduation of foreclosures proceedings, to permit the house owner discover and the chance to defend towards them.
