Condo boards want banks' 'free ride' to end
Condo owners and local politicians who accuse banks of delaying foreclosures on units to avoid association fees want to change state law in order to stop it.

Article Courtesy of The Miami Herald

By MONICA HATCHER

Published October 17, 2008 

He frequents the pool at The Venetia condo building. He leaves his Jaguar with the valet. He uses the gym. He's also behind on his mortgage and isn't paying his condo association fees.

Neither is his lender, and the association's board worries the bank is delaying foreclosure to avoid paying dues as well.

Sharon Dodge, president of The Venetia's association, angrily told a crowd of South Florida condo dwellers at a meeting this week that 134 units were not paying maintenance fees in the 382-unit building. Of those, at least 35 are in the hands of lenders who aren't playing fair.

''Something needs to change!'' Dodge said, drawing rowdy applause from the crowd that sat beneath chandeliers in the Loews hotel ballroom in Miami Beach.

The unpaid accounts have resulted in higher association fees for everyone and crippling special assessments to cover large one-time expenses like roof repairs. Less than a year ago, The Venetia had to slap an $8,000 special assessment on homeowners because, at the time, roughly a quarter of them were delinquent.

South Florida's foreclosure crisis might be dealing its toughest blow to the hundreds of thousands of homeowners who live in condos. High foreclosure rates have made it difficult for many associations to make their budgets and provide services like cable, lawn care and pool maintenance.

The higher dues are squeezing homeowners already struggling to stay current on their bills.

`DEATH SPIRAL'

Mortgage lenders are drawing the wrath of condo owners as catalyst and culprit of the fallout.

''We are in a death spiral,'' said Miami Beach Commissioner Jerry Libbin, who hosted Wednesday's meeting with state Reps. Julio Robaina and Luis Garcia.

''It's the foreclosures that are not happening, the banks that are not taking the actions that they should be taking that are causing additional assessments to be foisted on good condo unit owners,'' Libbin said.

At the root of the problem, Libbin and the condo boards say, is a state law that seems to give banks incentives not to foreclose on delinquent borrowers in their buildings.

Upon taking title to a unit through foreclosure, a lender must pay condo associations 1 percent of the original mortgage amount or six months of unpaid maintenance fees, whichever is less. After the initial sum, the lender then starts making full monthly payments like other unit owners.

Dodge and others claim lenders are dragging out foreclosures to avoid complying with the law.

IDEAS

The town-hall meeting gave residents a forum to vent and a chance to propose changes to the law. Robaina, chairman of the Select Committee for Condo & Homeowners Association Governance, has vowed to introduce legislation in Tallahassee next spring to address the problem.

One proposal would let boards sell delinquent accounts like counties sell delinquent property taxes by auctioning certificates. That would let them collect past dues immediately.

Others included letting associations collect rent on leased units when fees are unpaid and giving condo liens the same priority as tax liens, meaning an association would be paid from sale proceeds before a lender.

''The association pays to preserve and protect the bank's collateral while they sit on their hands for months or years without taking steps to foreclose,'' said Ken Direktor, an attorney with Becker & Poliakoff, a firm representing condo associations. "We are providing services for the benefit of the bank. Why shouldn't they pay for it? . . . They are getting a free ride.''

Direktor also proposed requiring lenders to pay a greater portion of past-due assessments as they take longer to foreclose.

`THIS MESS'

The suggestions reflect a growing sense of despair among condo owners who find themselves going up against lenders who are benefiting from a $700 billion bailout. Robaina said he was initiating discussions with South Florida's Congressional delegation about whether any of the rescue funds could be directed to the battered condo communities, many of which were at the center of speculative buying during the boom.

''It's time for us to start negotiating that money be used for you,'' Robaina told the crowd, "because it's your tax dollars and the public sector needs to be considered before giving it to the private sector that got us into this mess.''

There were no bank representatives at Wednesday's meeting. But in an interview, Marc Ben-Ezra, an attorney who files foreclosures statewide for lenders, said he was not aware of lenders deliberately stalling foreclosures to avoid condo fees and warned against enacting laws that could make lenders more averse to financing units to new buyers.

''If the mortgage holder knows they could be wiped out due to a much smaller association lien, the lender wouldn't lend in those buildings. If they make it too risky for lenders to lend, their property values are only going to go down further,'' Ben-Ezra said.

Anthony DiMarco, a lobbyist for the Florida Bankers Association, said banks have been put in almost a no-win situation when it comes to condos.

"On the one hand, we are working with homeowners and also being encouraged by the government to keep them in their homes, and, on the other hand, we're being told we're not foreclosing fast enough. So what are we supposed to do?''

He added that the current law requiring banks to pay only 1 percent or up to six months of past due payments was a compromise reached in the early 1990s that still seems fair.

''I don't understand, personally, why the bank who lent somebody money is responsible for someone who didn't uphold their end of the bargain,'' DiMarco said. "Once we take it over, that's fine. We should pay going forward. I don't know why if you lend money, you're somehow responsible for something somebody else didn't do.''


State Rep. Julio Robaina and Miami Beach Commissioner Jerry Libbin to hold Town Hall Meeting on Condo Foreclosure Reforms

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