Is this technically considered "claim splitting?"

[Taxing Matters]

so your saying that if we win and he pays us the $10,000 due, but he then thereafter still doesn't pay any dues after the dates we win for, we can't go after him? That doesn't sound correct...

No, I think Zigner is saying that. But all claims for these fees that are due and owing at the time you file the complaint have to be brought together in one action. You can't split them up just to be able to get into small claims court with them. Doing that duplicates the case and results in extra burden for the court and the defendant, which is why the rule against claims splitting exists.

 

[justalayman]

The old board was apathetic. Now it's my issue. So if we take them to regular court and ultimately they appeal the decision (assuming we win), then they can still not pay the entire time after that while we wait for a new court date and the amount they become delinqient thereafter(assuming they continue to not pay), how do we recover this new debt?
for example: they owe $10K and judge says we win and they owe us in August, then they'll petition it and while we wait longer (say from September on...) they still won't pay, increasing their debt. If I file another claim for this this is considered claim splitting and tough cookies?! Or can I take the new amount (which is under $5K) to small claims?

If the old debt has been deslt with, any new debt is a new debt and you can sue for that. If you don’t address the current outstanding debt, debt that accrues from here will be seen as part of total debt and merely tacked onto the total.

 

[Taxing Matters]

I know. Just having some fun with you.

I know, and I'm having some fun with it too.

 

[adjusterjack]

so your saying that if we win and he pays us the $10,000 due, but he then thereafter still doesn't pay any dues after the dates we win for, we can't go after him? That doesn't sound correct...

It isn't.

If he's $10,000 in arrears through 2017 and you sue for it, that suit covers that amount. If he defaults for 2018's dues, that's a new lawsuit unless the 2018 dues are already in default.

I used to live in an HOA ages ago, and if you were enough behind in your dues there was some kind of foreclosure process that they would initiate.

True, but there are several problems with that. One is that it can take months or years to go through the process. Two is that the HOA would first have to pay off the mortgage and then give the former owner his exemption then cover its expenses and then get whatever is left.

California's homestead exemption is up to the following limits: $75,000 if single and not disabled; $100,000 if family and no other member has homestead; $175,000 if 65 or older or if physically or mentally disabled; $175,000 if creditors are seeking to force sale of your home and you are either (a) 55 or older, single and earn under $25,000 per year, or (b) 55 or older, married and earn under $35,000 per year. Sale proceeds are exempt for up to 6 months after the sale.

Homestead declaration may be filed to protect the proceeds of a voluntary sale up to 6 months or to protect the exemption amount from a judicial lien.

Foreclosure is likely to be a bad idea when compared to a breach of contract lawsuit for which a judgment will allow wage garnishment and bank account levy.

 

[gryndor]

Understood adjusterjack, I learn something new every day!

 

[HRZ]

The judge in small claims would likely toss the $10,000 and give you 30 seconds to pursue it for $5000 or withdraw it to the right forum ...I think you are smarter to go for the $10,000 and amend your rules first to allow legal fees and interest and anything else that might fly. Nuts to allow somebody to get 1 year behind absent issues you didn't point.

 

[justalayman]

Have you bothered to research the possibility of placing a lien on his condo and forclosing if he doesn’t pay the due?

I believe an HOA can do it but I’ve found little speaking to COAs concerning the issue.

 

[Taxing Matters]

Have you bothered to research the possibility of placing a lien on his condo and forclosing if he doesn’t pay the due?

I believe an HOA can do it but I’ve found little speaking to COAs concerning the issue.

California does indeed provide that a condo association may place a lien on the separate interest in the condo building held by the deliquent owner and may foreclose that interest. The California Davis-Stirling Act provides the rules for condo associations, and is codified in the California Civil Code (CC) section 4000 et seq. The sections that deal specifically with collecting delinquent assessments is found in CC §§ 5600-5740. Note the condo association can also include its costs, interest, and other charges in addition to the unpaid fees.

 

[Zigner]

so your saying that if we win and he pays us the $10,000 due, but he then thereafter still doesn't pay any dues after the dates we win for, we can't go after him? That doesn't sound correct...

That's not what I said. At this time there is a certain amount owed. You sue for all of that. Once that is dealt with, any unpaid amounts become a new claim. Had you taken action the first month, there would be a lot less to sue for...and you could then sue again if he fell behind.

 

[HRZ]

Based on the nature of your questions and history of events , I suggest as president you get some paid counsel both as to how to modify your rules to better protect the association and how to best pursue collection of this whopper arrears AND you send your paid advocate forth to do battle with deadbeat.

BTW what's your best view of why the unit owner is not paying as required ?

 

[motaskate]

Based on the nature of your questions and history of events , I suggest as president you get some paid counsel both as to how to modify your rules to better protect the association and how to best pursue collection of this whopper arrears AND you send your paid advocate forth to do battle with deadbeat.

BTW what's your best view of why the unit owner is not paying as required ?

this is going to read like a novel but: The member is an attorney, and according to the previous Board, he throws that around that he doesn't need to pay because of problems within the COA. Pretty much picture the worst COA and that's where we are at. zero reserve funds and restraining orders and former lawsuits. There are a lot of big personalities here and I inherited these problems that came with the property. After (brief ) review of Davis sterling, I know that all the apathetic boards have not updated our CC&Rs since 1980 and no separate voting rules etc. among a myriad of other document problems I'm assuming, but everytime a previous Board tried to make changes proactively or to stay current with the law, he threatened everyone with his law degree, said he won't vote for it and will sue any Board member who does, so they all were to afraid to act. I'm new to this and so I'm trying to resolve this. Is there any circumstance where he doesn't have to pay his COA dues due to previous Board action (or inaction in this case)? I know the COA has never been formally disolved.

Also his water bill is tied in with his COA dues since all units aren't individually metered. So we split the cost of H20 and this guy is such a child he places his hose running and leaves to piss us off cause he's not paying for it and we are basically subsidizing his water utilities (the other 4 members). Like I said, a disaster... Also whenever we retain council they ultimately back off once he sends our legal a formal letter threatening to counter sue them! and ultimately they all tell us the same 2 reasons why: (1) there are easier ways to make money then battling another attorney, (2) the coa is broke and no retainer is feasible...

 

[Zigner]

Your matter is beyond the scope of an internet forum. If you cannot afford competent legal representation, then I really don't know what to tell you.

 

[motaskate]

Your matter is beyond the scope of an internet forum. If you cannot afford competent legal representation, then I really don't know what to tell you.

thanks.

 

[HRZ]

Bully power only works until you send in a real paid gladiator willing and armed to do serious battle .

 

[Whoops2u]

Why is this considered claim splitting?

If it is considered to be a single claim, which breach of contract is considered the date used for statute of limitation purposes? The first missed dues or the last?

Especially if you are not talking about the jurisdictional limitations of small claims court these seem separate causes of action. It's one of the reasons why you can't sue on an entire installment contract when a person missed one payment unless there is some wording that accelerates the contract and makes it due in full on a missed payment. Without the clause, I have to sue on each missed payment. The missed payments are different transaction or occurrences. With the clause, we might find it true you can't split up the whole amount due into smaller parts to fit into the small claims jurisdiction because of the rule against splitting.

This does not seem the same to me. Claim splitting gets to court waste and is related to res judicata. If we ignore the limited jurisdiction question of small claims, we could also ask if each of the missed payments requires a compulsory joinder of the claims. I don't think there is a compulsory joinder for the claims, but a permissive one.