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Now It's the Big Banks That Are Getting Foreclosed On


Call it a case of man bites dog. Since the start of the housing crash, millions of Americans have lost their homes to foreclosure. Many of them lived in homeowner or condo associations.

Source: HOA-USA.com

These are organizations that collect monthly dues to pay for amenities, like added security, maintenance and recreational areas; one in five Americans currently lives in an association-governed community.

These associations have been hit hard by the housing crisis, as many delinquent borrowers stopped paying their monthly HOA dues. In some cases, HOA’s, which do have the authority in many states, managed to foreclose on properties even before the banks, by using the back dues as liens.

Now the homeowner associations are taking it one step further. They are going after the banks, claiming that several of the largest lenders are not paying monthly HOA/condo fees on homes they’ve repossessed and now hold as bank-owned properties (Real Estate Owned, or commonly called REO’s).

“The association has both a statutory right under the Florida laws as well as rights under its restrictive covenant in the community, and it pursues those rights just like any other owner,” says attorney Ben Solomon of Florida’s Association Law Center. “ In this legal scenario JP Morgan is no different than any other homeowner in the community who has failed to pay.”

Solomon is representing Homestead Florida’s Keys Gate Community Association, which claims JP Morgan owes two years of back dues worth over $19,000 on a foreclosed home. It is one of dozens of foreclosure suits against several of the nation’s largest lenders by homeowner and condo associations claiming back dues.

“I pay my dues, other people pay their dues, I just feel that JP Morgan should have paid theirs,” says Don Gonzalez, a homeowner in the Keys Gate Community.

Gonzalez says the foreclosure crisis has hit his neighborhood hard. The association can no longer pay for a full time security guard, an amenity that drew Gonzalez to the community in the first place.

“We are seeing with much more regularity that when banks take title to units, they don't pay any carrying costs,” says Solomon. “What they prefer to do is market the unit through an REO sale, and when they finally dispossess the unit, no matter how long that takes, sometimes a year or two years or more, then they will go ahead and pay past due amounts if the association is not proactively pursing them to get paid the additional amounts quicker.”

A representative from JP Morgan says that while they have lost other homes to HOAs in lawsuits over delinquent dues, in this particular case, the bank serviced the mortgage, but the ownership during the past two years may be in question.

“Chase has a strong commitment to stabilizing neighborhoods hardest hit by foreclosure," a JP Morgan spokesperson said. "We pay HOA dues on properties we own. We are researching the title on this particular property.”

Solomon disputes that, and produced a title document showing the transfer of title in 2008 to JP Morgan.

“JP Morgan took title to the property from my association client (after the association had already previously foreclosed on Wells Fargo’s original buyer) on April 28, 2010.

Attached is a copy of the Certificate of Title evidencing that JP Morgan has owned the unit for over two years since that date and a copy of the Agreed Order where we sued JP Morgan to require them to take title to the unit and they ‘agreed,’” Solomon wrote in a follow up to our interview.

In fact, the home was sold to an investor in June of this year, and Solomon says that investor could also be on the hook for the back dues. As investors flood the housing market, looking to turn cheap foreclosures into profitable rentals, it is yet another warning: Make sure the property is free and clear of any liens, including HOA/condo fees.

While this case has its unique complications, others are more straightforward, involving bank-owned properties where title is not in question. In one case, Solomon says a Miami Beach condo association was successful in repossessing a home from a bank over back dues. The association then sold the home to pay the back dues.

-By CNBC's Diana Olick

Questions? Comments? RealtyCheck@cnbc.comAnd follow me on Twitter @Diana_Olick

  • Diana Olick serves as CNBC's real estate correspondent as well as the editor of the Realty Check section on CNBC.com.

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