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by: Niurka F. Asmer, Esq. posted: December 20, 2016
Q&A: Voting by Proxy
by: Niurka F. Asmer, Esq. posted: November 30, 2016
Q. At a regular monthly meeting of a seven-member HOA board, where four members present constitute a quorum, can one of the absent members give her proxy to one of the four attending members to vote on specific issues on the board’s agenda?
A. “No. Board members cannot vote by proxy,” says attorney Nicki Fernandez Asmer with FL Legal Group, based in Tampa. “Chapter 720 of the Florida Statute, also called the Florida Homeowners’ Association Act, specifically provides that directors may not vote by proxy or by secret ballot at board meetings.
The only time that secret ballots may be used is in the election of officers. Board members may participate at board meetings through telephone or other remote methods of communication (Skype or other video conferencing).
While not specifically authorized in the HOA statute as it is for condominiums, I am of the opinion that a director may legally participate in board meetings through telephone, real-time video conferencing, or similar real-time electronic or video communication. Participating remotely at board meetings is legally treated the same as if the director were actually present at the meeting. Just be sure that those board members that participate remotely can hear and be heard at the meeting.”
2015 Legal Updates
Poster Profile:Name: Paralegal/Community Assoc
by: Paralegal/Community Assoc posted: October 23, 2015
Condominium and Homeowner associations in Tampa, Clearwater and the surrounding counties in the State of Florida must be mindful and aware of the laws that change every year. Below is a brief legal update for 2015 that became effective July 1, 2015.
The following applies to Condominiums, Homeowners’ Associations and Cooperatives:
Electronic Transmission and Voting:
- Authorizing the use of a copy, facsimile transmission, or other reliable reproduction of an original proxy vote for certain purposes. The reproduction must be a complete reproduction of the original proxy. (Amends §617.0721(2));
- Authorizing condominium associations to conduct votes of the membership by online voting under certain conditions. (Association must have an internet-based online voting system and the owner must provide written consent to online voting, if owner does not consent, the owner is entitled to vote by paper ballot) (Creates §718.128; §719.129; §720.317);
- Authorizing the electronic transmission of notices of certain meetings of an association irrespective of whether authorized by the association's bylaws, etc. to owners who consent, this includes board, membership and committee meetings. (This law does not pertain to owner meetings called to recall directors) (Amends §718.112(2)(d)(6); §719.106(1)(d); §720.303(2)(c)(1)).
Fines and Penalties:
- Fines and suspensions are to be levied by the Board of Directors. This bill clarifies that it is the Board’s role to levy a fine not the fining/suspension committee. The fining/suspension committee is to confirm or reject the fine or suspension levied by the Board. The committee cannot modify the fine or suspension.
- The fining/suspension committee may not consist of owners who reside in a director’s household. (Amends §718.303; §719.303(3)(b); §720.305(2)(b))
The following only applies to Condominiums and Cooperatives:
Official Records Request:
The amended statute states “only written” records of an association’s operations are official records, even if not in the list of specific official records. (Amends §718.112(12)(a)(15) and §719.104) .
- The bill clarifies that the required distribution of delinquent payments must be applied in the statutorily required manner (first to interest, then to any administrative late fee, costs, reasonable attorney fees and then to the delinquent assessment), however new language has been added to state that the manner of application of payment applies regardless of any purported accord and satisfaction, or any restrictive endorsement, designation, or instruction placed on or accompanying payment. This addition was intended to clarify existing law. (Amends §718.116(3); §719.108)
- The bill was also amended to permit a claim of lien to secure payment of administrative late fees with regards to condominiums. (Amend §718.116(5)(b))
The following applies to Condominium and Homeowners Associations:
Suspension of Voting Rights:
- If an owner or member’s voting rights have been suspended for any reason, the total number of votes of the suspended member(s) must be reduced from the total number of voting interests of the association when establishing a quorum, conducting an election, and for the purpose of approving any other action. (Creates §718.303(5); §720.305(5)) (Provision already existed in §719.303(5)).
- The suspension of voting rights or right to use the common elements applies to members, tenants, and guests, regardless of number of units owned by the member, even if delinquency or violation arose from only one of the member’s units. (Creates §718.303(7); §720.305(5))
Rental Agreements, Effective June 2, 2015:
House Bill 779 provides that a “bona fide tenant” must be given 30 days’ written notice before eviction from a foreclosed home. Notice must substantially comply with the form cited in the statute. (Created §83.561)
The following only applies to Condominiums:
This amendment removes the provision that requires the association to be responsible for uninsured loss. In the absence of an insurable event, the association or the unit owners shall be reconstruction, repair, or replacement as determined by the maintenance provisions of the declaration or bylaws. (Amends §718.111(11)(j))
Termination of Condominium (per House Bill 643), Effective June 16, 2015:
The current law allows an “optional termination” of condominium may be approved by at least 80% or more of the total voting interests vote in favor of termination, unless 10% or more of the voting interests have rejected the plan of termination; all voting interest must be permitted to vote, including those previously suspended; this amendment provides that if a termination vote fails, another vote to terminate may not be considered for 18 months. (Amends §718.117)
The following applies only to Homeowners’ associations:
The term “governing documents” now includes the Board’s rules and regulations. (Amends §720.301(8))
Failure to provide the statutorily required notice of recording an HOA governing document amendment does not affect that validity of the amendment. (Amends §720.306(1)(b))
Chapter 720, of Florida Statutes is now known as the “Homeowners Association Act”. (Amends §720.3015)
If the governing documents provide, a fine is permitted to exceed $100 per violation. (Amends §720.305(2))
- Any member who is delinquent who is delinquent in payment of any monetary obligation on the day that he or she could last nominate himself or be nominated for the board may not seek election and his or her name may not be listed on the election ballot. The Homeowners Association Act no longer required the ineligible person be delinquent in excess of 90 days.
- If a Board of Director becomes delinquent in excess of 90 days shall be deemed to have abandoned his or her seat on the Board, creating a vacancy to be filled according to law. (Amends §720.306(9)(a) and (b))
The Home Affordable Foreclosure Alternatives (HAFA) Program
Poster Profile:Name: Law Informer
by: Law Informer posted: March 19, 2015
- Waiver of Deficiency, which releases you from the remaining balance of the mortgage debt. Meaning, the bank cannot collect the difference between the short sale price and your mortgage debt.
- The Bank stands in your shoes to accept, reject or counteroffer the current contract price.
- Your credit score is affected less than with traditional foreclosures and short sales.
- HAFA may provide you with $1,000 to $10,000 in relocation assistance.
- The Property is principal residence.
- You have a documented financial hardship.
- Mortgage originated before Jan. 1, 2009.
- Mortgage is owned or guaranteed by Fannie Mae or Freddie Mac.
- Borrower's total monthly housing payment exceeds 31 percent of gross income.
- Unpaid principal does not exceed $729,750
Should I File Bankruptcy?
Fernandez Florida Law Can Help You Decide
by: Niurka F. Asmer, Esq. posted: February 17, 2015
Fernandez Florida Law can help you determine if it is the right time to file a personal bankruptcy.
The word bankruptcy sounds daunting and the idea of it seems even more terrifying. However, in these times of financial hardship, bankruptcy courts are overwhelmed with bankruptcy filings in an effort to discharge debt or reorganize debt. If you have incurred personal debt, bankruptcy may be a viable option. Fernandez Florida Law, and its bankruptcy Attorneys in Tampa and Clearwater, can assist you through this difficult and intimidating process.
What is a bankruptcy and is it the right option for you to file?
Bankruptcy is the legal process in which debt, either business or personal, can be discharged. Its purpose is to obtain a fresh start. Many individuals facing financial hardships are unable to pay his or her creditors and are faced with potential wage garnishment or levy of assets. There are two personal bankruptcies that can be filed: 1) Chapter 7 “liquidation” and/or 2) Chapter 13 “reorganization”.
Chapter 7 bankruptcy liquidates your debt. People have a misconception that they will lose all their assets in a chapter 7. That is not the case. Certain personal property or an amount of equity in property is exempt or protected from the liquidation process. If you meet the exemption levels, you could be in and out of bankruptcy in 4-6 months.
Chapter 13 is a reorganization of personal debt. This allows a person to keep their personal property, however, due to the level of income, a payment plan will be created by a bankrtupcy attorney, wherein the debtor will pay a percentage of their debt. A Chapter 13 will also allow you to strip off unsecured liens on real property, cram down notes on vehicles to fair market value and pay off debt owed to the IRS.
Now that you know the main forms of personal bankruptcy, how do you know if you should file? The following questions were designed to help you decide if you are financially overextended and may not realize it:
- Does more than 20% of your take-home pay go towards paying creditors?
- Do you need a second job to earn enough to make needs meet?
- Do you rely on credit cards for everyday expenses?
- Do you only pay the minimum due each month?
- Do you have late or missed payments?
- Do you take out new credit cards or loans to pay off the old ones?
- Are you unsure about how much you owe?
If you answered yes to two or more of the questions, call or contact Fernandez Florida Law for your free bankruptcy consultation.
Bankruptcy is an option available to millions of Americans to eliminate unmanageable debts, or stop from losing your home in foreclosure. Potential clients can schedule an appointment with Fernandez Florida Law and leave the consultation with a feeling of hope and ease after being educated on their legal rights and options. Should I file bankruptcy? If you believe the answer is yes or have further questions, contact Fernandez Florida Law to protect yourself and your assets.
Fernandez Florida Law fights for those in Tampa, New Tampa, Oldsmar, Lutz, Clearwater, Largo, Seminole and the State of Florida who need help getting back on their feet financially. Call 813-412-5605 today or contact us.
How Can an Attorney Ease You into Life After Foreclosure?
by: Niurka F. Asmer, Esq. posted: February 17, 2015
Unfortunately, foreclosure is a stressful reality for many Floridians in Tampa and Clearwater. Hard working individuals find themselves facing tough economic challenges, including job loss, foreclosure, bankruptcy, and cashing in their hard-earned retirement savings to pay debts. Hiring an attorney to defend your foreclosure case will provide you with options and a foreseeable end result that can lessen the burden on you and your family.
Fernandez Florida Law, Tampa and Clearwater’s Foreclosure Attorney, takes the time to understand the financial situation that brought you to foreclosure. Some options include: loan modification, foreclosure defense, short sale, deed in lieu of foreclosure, chapter 13 or 7 bankruptcy.
In addition to assisting with the legalities of a foreclosure, Fernandez Florida Law can aid you in rebuilding your credit. After a foreclosure, your top priority should be to find a decent, affordable place to live and to start rebuilding your credit. Unfortunately, the time you spend in foreclosure will stall your ability to bounce back from the negative credit reporting. Once the foreclosure action is completed, it is recommended to begin rebuilding your credit immediately and to create a sustainable spending and savings plan.
Continue using credit: People often make the mistake of closing credit lines or cutting credit cards when their scores take a major hit. Shunning credit altogether only leaves a large gap in your credit history, which is nearly as troubling to lenders as a bad credit history.
Make sure your payments are timely: To avoid missing a due date by accident, set up automated payments. It is advised to purchase small items on credit and pay off the entire balance when the bill is due.
Check your credit score: A federal law allows you to get a free yearly credit report at Annual Credit Report which will allow you to track your progress and monitor fraud.
The biggest question Florida residents who face foreclosure is: Can I be a homeowner again? Credit is like beauty…its’ all in the eyes of the beholder. Although a foreclosure will impact your ability to get a conforming, conventional mortgage, the answer is yes. How long the impact lasts depends on how quickly you can rebuild your credit. For many people, an FHA loan will be the quickest path back to homeownership. After a foreclosure, the government body requires a three-year waiting period before you can qualify for another FHA-backed loan. There are exceptions, which can speed up the process.
Call Fernandez Florida Law today for a free consultation to learn your rights and options available to you. Fernandez Florida Law represents clients in Pasco, Pinellas, Hillsborough, Manatee and Polk County.
The main office is located in South Tampa at 113 South Boulevard, 1st Floor, Tampa FL 33606. Call (813) 412-5605 or contact us to schedule a free consultation.
Fernandez Florida Law's has a satellite location in Clearwater Florida located at Hodusa Towers, National Properties Trust, Inc., 28870 U.S. Highway 19 N, Suite 300, Clearwater FL 33761. Call (727) 282-1910 or contact us to schedule a consultation.
Thinking about Bankruptcy after Holiday Credit Card Debt?
by: Niurka F. Asmer, Esq. posted: January 28, 2015
Most people in Tampa Bay pull out their credit cards during the holidays. Travel, family gatherings, gifts, and diners out, all add up quickly with the belief that it will be paid off in the future. Trends show that credit card debt raises though the first of the year, with diminished spending in February.
January roles around and the pleasures of the holiday season start to disappear with higher credit card balances. For someone already struggle with debt those few extra dollars for credit card payments can be the tipping point of financial chaos. Managing day-to-day expense gets more difficult which can lead to missed payments and debt going into collections.
In the US 40% of individuals with a credit card have debts in collections. When credit cards payments are late and minimums are not paid fees and interest can raise the total debt considerably. After the credit card company tries to collect the debt for months they may turn the collection efforts over to a collection agency. Collection agencies make money from the debt they collect, leading to vigorous attempts at collecting that debt. This can involve continuous phone calls to your home, cell phone and work. On some occasions, creditors will locate family members as a scare tactic to collect on the debt.
Credit card debt, especially from the holidays, can be a major factor when considering bankruptcy. A difficult decision to make, but when mounting debt seems unbearable it is a viable option. According to the US Court statistics over 35,000 personal bankruptcies were filled in Florida’s Middle District, which covers the areas around Fort Myers, Tampa, Orlando and Jacksonville. Nationally, almost a million bankruptcies were filled in 2014. Bankruptcy is quite common, just not talked about that often.
When making a decision to file bankruptcy consider a few things:
- File annual taxes before filing bankruptcy; a refund could be viewed as income
- Don’t take large cash advances over $900 on credit cards 10 weeks before filing for bankruptcy; it may not be discharged and considered an invalid transfer.
- Avoid extravagant purchases, over $650, on credit cards 3 months prior to filing; this can be viewed as fraud.
After filing for bankruptcy:
- All collections efforts must stop due to the automatic stay in place.
- It could stop a foreclosure sale
- Debt can be discharged
- Cars and homes can be kept with new payment plans
- Provides you with an opportunity to reestablish your credit and build a positive financial history
Fernandez Florida Law with offices in Tampa and Clearwater, can help sort through your options surrounding bankruptcy. Having over a decade of experience in bankruptcy and collection efforts in court, the attorneys provide personal service and a sense of security while helping you restore your financial health. Contact our bankruptcy offices in Tampa or Clearwater today for help.
Attack of the Robo-Signers Again, Now with Deficiency Judgements
by: Niurka F. Asmer, Esq. posted: December 26, 2014
The aftermath of robo-signers is impacting Florida again. Remember the mortgage loan automatons that were acting strictly on their own will, authenticating foreclosure documents with no verification of the information they were swearing to? Their debatable documents are now being used to badger previous borrowers years after their homes have gone into foreclosure. Foreclosure Attorneys have complained for years that the problems started when robo-signed documents allowed banks to foreclose without any legal standing.
Now Robo-signers Redux has since developed. Mortgage giant Fannie Mae has hired debt collectors on a pursuit to redeem the difference between what the homeowners owed on their mortgages when they were foreclosed and the amount received when the properties were resold, called the deficiency.
Fannie Mae, other mortgage lenders and third party debt collectors that buys the deficiency debt can file a deficiency claim in court. If they succeed with the deficiency claim lawsuit a foreclosed homeowner could be faced with a deficiency judgment, possibly owing tens of thousands of dollars and potential interest.
So now Florida banks have been bombarding former homeowners for deficiency judgment payments on their homes that ultimately went into foreclosure with the help of robo-signers.
In order for a bank to foreclose on a homeowner, it needs proof that it has the right to do so. For example, the bank must present documentation showing that it holds the note underlying the mortgage. However, this paperwork was often inaccurate or even missing with robo-signers. This led to mounds of foreclosure in 2009 and onward. Law firms representing the banks set up assembly lines to create new documents allowing them the right to foreclose. During the peak of this foreclosure dilemma, the Florida Courts became so overwhelmed that they created a new system known as Rocket Docket to help speed the process.
In 2012, the robo-signers got the attention of the Florida’s State Attorney General who achieved a 25 billion dollar settlement with 5 major banks that had foreclosed, most without proper documentation. Most robo-firms closed, attornies were sanctioned and some disbarred.
There are still many open cases of former homeowners being pursued by Fannie Mae and other mortgage lenders for deficiency judgments in Florida regarding documents handled by robo-signers. Florida courthouses are seeing their fare share of cases, as well as the Tampa and Clearwater Law Firm of Fernandez FLorida Law.
Many foreclosed former homeowners feel helpless when faced with a deficiency case. An experienced foreclosure attorney can help determine if the foreclosure was the result of robo-signers and build a defense against a judgment.
Foreclosure Lawyer Nicki Fernandez Amser of Fernandez Florida Law has experience helping those faced with foreclosure and deficiency judgment cases. She can discuss the various options available prior to foreclosure, after, and help negotiate with the bank throughout the process.
Hiring a foreclosure lawyer in Tampa when faced with a pending lawsuit can shed light on your options.
Faced with a deficiency case? The Foreclosure Attorney at Fernandez Florida Law can:
- Create a deficiency defense by determining if robo-singers were involved in the foreclosure
- Negotiate the deficiency judgment to reduce the amount that owed
Want to proceed with a foreclosure? The Foreclosure Lawyer at Fernandez Florida Law can:
- Negotiate the deficiency judgment to reduce the amount that you owe
- Explain bankruptcy options for debt relief
Want to fight a foreclosure? The Foreclosure Firm Fernandez Florida Law can:
- Create a foreclosure defense
- Negotiate with the Lender for a loan modification
- Work on a short sale or deed in lieu of foreclosure
- Negotiate with homeowners associations and condo associations with liens against your property
When facing a deficiency judgement, foreclosure, or considering a short sale? Contact Fernandez Florida Law with offices in Tampa and Clearwater Florida, we can help navigate your foreclosure and provide solutions. Contact our Tampa Foreclosure Lawyer at 813-412-5605, our Pinellas Foreclosure Lawyer at 727-282-1910 or by email.
Awarded Best Law Firm of 2015 by the FLCAJ
by: Niurka F. Asmer, Esq. posted: December 21, 2014
Fernandez Florida Law is pleased to announce its award for Best Law Firm of 2015 by the Florida Community Association Journal.
The entire legal team is honored by the award recognizing its work in connection with HOA's and Condo Associations in Pasco, Pinellas and Hillsborough county.
The FLCAJ award is presented to Condo Associations and HOA service providers that demonstrate through their commitment to the community associations they serve, an exemplary level of proficiency, reliability, fairness, and integrity.
We look forward to receiving our award at the Florida Community Association’s Education & Expo at the Palm Beach County Convention Center on January 15, 2015.
Fernandez Florida Law’s Condo Association and HOA Attorney, Nicki Fernandez Asmer, prides herself in providing legal representation to Condo Association and HOAs with offices in Tampa and Clearwater. Our firm provides individual attention with reasonable pricing. Fernandez Florida Law assists association boards and their management companies with preparing and conducting board meetings; providing legal opinions on the associations’ business under Florida law; enforcing covenants and restrictions and; drafting and negotiating vendor contracts.”
Don’t Let Your Condo Association End Up in the Dog House
by: Niurka F. Asmer, Esq. posted: December 21, 2014
Many Condo Association and Homeowner Associations in Tampa and Clearwater have pet restrictions within their community's covenants. Some community associations restrict all pets, while others limit by size or certain dog breeds. Just because a community limits pets, this may not exclude certain animals from residing in their building or community.
Pet restrictions can be enforced, as long as the animal is only a pet and not used for any medical reasons. Questions can arise with boards when faced with a resident that acquires or moves in with an animal. Depending on how the HOA or Condo Board proceeds, the situation could have significant financial consequences.
When faced with an animal in a residence the association board needs to be aware of the law and rules governing the situation. FHA requires exemptions to these rules in certain medical situations. The two federally covered classes of animals are service animals and emotional support animals. It is vital that your board understands the definitions and requirement for both cases.
Service animals are usually dogs, but sometimes small horses, that have received training to provide a specific service or benefit to someone with a disability. Service animals must be allowed under the Americans with Disability Act to accompany people with disabilities in public places and reside in their residence.
Emotion support dogs provide comfort. They do not qualify as service animals under the Americans with Disability Act, but are covered under the FHA. They can be restricted from public places that don’t allow pets, but are allowed to live in no-pet housing. An HOA or condo association can request medical necessity documentation for an emotional support dog.
Animal owners in Florida have successfully sued boards and respective members over service and support animals. Consulting with your HOA Attorney before making a determination about an animal in a no pet community could save the boards a legal battle and a potently hefty judgment.
The Clearwater and Tampa HOA Firm of Fernandez Florida Law is experienced with pet and service animal issues. Call Fernandez Florida Law for the individual attention that your community association deserves from an experienced lawyer. Email or call to discuss 813-412-5605 in Hillsborough County or 727-282-1910 in Pinellas County to schedule a consultation.