Help!! We have an approved HAFA through Wells Fargo. All conditions to close have been met but one - HOA refuses to accept $2,000 for delinquent condo fees. Wells Fargo says they cannot allocate any more than $2,000 from their proceeds for the HOA - the third lien holder. The 2nd lien holder has agreed to take $6,000. HAFA rules prohibit Seller, Buyer or Realtor from contributing to delinquent HOA fees. Listing agent, Selling agent and the Buyer are livid!what if lien holders  This HOA refusal could force us in to foreclosure. Any ideas? Do we have any other recourse? 

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I have one with Bank of America right now with the same issue (not HAFA, though).  HOA is getting $4000 - more than the 2nd lien even, and they want another $1415.00!  The HOA suggested we cut commissions by another percent (investor has already cut us to 5%).  That's not a precedent I'm willing to set, though.  Not sure what theses HOAs are thinking! 

This is not uncommon.  Since the HOA lien remains with the property unless it is settled, the new owner would be liable.  I would recommend you see if the BUIYER is willing to pay it.  This one item is truly your deal-killer.  Here in CA, this is very typical.  I actually have a current transaction with BofA where the HOA delinquencies are over $20,000 and BofA will contriute nothing.  The Listing includes verbiage that clearly states Buyer will pay for all delinquent HOA fees which are approximately $20,000 - $25,000.  The buyer reduced their offer by the amount of the HOA delinquencies and is paying it directly to the HOA through escrow at closing.  BofA approved the lower price.

 

In your case, if you can get the Buyer to pay the 3rd, get it approved by the 1st and 2nd, show it on the HUD and you will be good to go.

 

If you can't get this settled, everyone needs to move on and let it go to foreclosure.  The bank will have to pay the HOA after they take the property.  Also, HOA fees do not get discharged in Bankruptcy. 

 

Best of luck,

 

Thom Colby

Broker / Negotiator

Newport Beach CA

 

 

The seller can pay down the lien too 2000.00 before closing, where he gets the money is his business ,then the escrow can close showing only 2000.00 to the HOA.  In foreclousre the law now only allows the banks to have to pay the HOA 9 month back dues,so that is why the lenders know this and won't pay anymore than that in short sale now.

Hoa will sometime reduced some fees ,such as late fees etc. ,but the seller has to go to the next board meeting to request it.  I always tell the seller in the listing to pay the HOA if nothing else if they can. 

Is that law regarding 9 months of past dues at foreclosure a federal law?  That would greatly help my situation as far as negotiating with the HOA. 

In regards to Jennifer's comments, in NJ the law is the HOA can get a max of 6 months at foreclosure so I don't think that it is a federal law. Betsy, you should check the laws in your state. However, I would approach the sellers about contributing some of their $3,000 relocating fees to come up with the difference.

Thanks to all of you who responded. Good ideas!

The point others are making is that anyone can pay the HOA fees ... just not through escrow where it shows on the HUD. The payment needs to be made directly to HOA and not thru escrow.

Nevada has their own rules for how many months a bank must pay past HOA fees, so I believe it is a state-by-state law, not federal.

And for the idea of the homeowners using their HAFA $3,000 to pay the HOA, they won't get that $3,000 until COE so it won't be available to pay the HOA. BUT, a family member or really good friend could loan them and THEN use the HAFA money to pay back.

Good luck!!! Personally, I'm working on keeping one out of Trustee Sale set for tomorrow!

Thanks for the help.  I'll have to check with my attorney to see whether we have a statute like this.  Good luck to both of you!!

Hey Betsy-

I was actually working on a short sale today with past due condo fees- I am researching another issue so I'm going to cut and paste from an email I sent- you can see the relevant parts- I would see if the state the property is located in has similar "statutory lien" rules/laws-  if the fees are liens they are attached to the property and that would be a good direction for you to take your battle---  here is what I sent- hope it's helpful.

 

I am escalating this file to your general legal council at Wells Fargo and the office of your CEO and CFO- I am also filing another complaint with HUD-
 
This property can go to closing on April 6th and we are pending final approval in writing from Wells Fargo.
 
I advised you in writing that the two items, sewer and past due condominium fees were liens and "lienable" in Pennsylvania.  I advised you in writing that the title company would not clear title without these items being paid as they were LIENS AGAINST THE PROPERTY.
 
I emailed you the written payoff for the sewer lien earlier today.  Please confirm receipt of this payoff.  In the Commonweath of Pennsylvania the only liens above municipal liens (such as sewer) are tax liens.  In Pennsylvania a lien for a sewer payment is created at the time the service is provided.
 
I will obtain a written payoff for the past due condominium fees and, additionally FOR THE PAYMENT THAT IS DUE AND PAYABLE FOR THE ISSUANCE OF THE 3407 RESALE CERTIFICATE.
  
IN THE COMMONWEALTH OF PENNSYLVANIA CONDOMINIUM FEES ARE STATUTORY LIENS AGAINST PROPERTIES.  This means that the minute an assesment or fine becomes due a lien is created against the property. 
 
With regard to the property at 302 Colettes Ct. this is clearly spelled out in the Declaration of Condominium and Deed- Book 5045, Page 1003 which was recorded in 1993.
 
The Pennsylvania Condominium Act Title 68, Section 3315 clearly details that assements and fees are statutory liens.  Paragraph A of the same act state <"liens from the day and time time the assesment.... fine becomes due">.
 
Since this is a short sale and not a foreclosure action, these liens against the property are not discharged in any form or fashion and they must be paid in order for clear title to be conveyed at the time of settlement.
 
With regard to the issuance of the CONDOMINIUM 3407 RESALE CERTIFICATE, this document is required to convey clear title.  The condominium association in the same Declaration referenced above reserves the right to charge a few for this document.  This is an allowable charge and you should be in contact with HUD to verifiy this fee as well as the notarty fee, etc.
 
This file has been mishandled for MONTHS.  I have filed already filed complaints with HUD.  I am now appealing to your executive offices for assistance with the short sale.
check out my post in response to Betsy- it might be helpful

jennifer mullen said:
I have one with Bank of America right now with the same issue (not HAFA, though).  HOA is getting $4000 - more than the 2nd lien even, and they want another $1415.00!  The HOA suggested we cut commissions by another percent (investor has already cut us to 5%).  That's not a precedent I'm willing to set, though.  Not sure what theses HOAs are thinking! 
Thanks Cheryl, I was able to get B of A to agree to pay the $4000 and the HOA finally accepted that.  We're closing April 29th, thank heavens.  Great job on that letter you wrote, though.  I'll definitely refer to your language in the future. 

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