[CLBS] HOA Lien

[Jeff Wilson]

Well put

-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of D. Blair Clark
Sent: Tuesday, June 21, 2016 4:14 PM
To: 'Randy French'; 'Robin Long'; 'Bankruptcy list'
Subject: Re: [CLBS] HOA Lien

A foreclosure, other than a deed of trust, IS a judicial proceeding and must be done accordingly.  So there IS a right of redemption.  But that's it.  If the person in possession is the prior owner or otherwise a "redemptioner,"
then that person has the right to ask the court to set a reasonable rental value during the redemption period.  But otherwise, that's it.  They can pay the judgment plus interest and costs during the redemption period.  But they have to pay rent during the redemption period, and once that period's up, their rights are extinguished.  A couple of years ago we got involved in a pretty extensive litigation over the rights of a redemptioner, rent, etc., and that's what the cases come down with.  Most all of the cases are pretty old; you don't see judicial foreclosure a great deal.  

I agree with Gery Edson's points on 55-115 with regard to HOA's, but the thrust of the question from Robin was the right of an HOA to foreclose.  A redemption, and the rights of a redemptioner, apply to foreclosure of any lien or a judgment under an execution sale, except for deeds of trust done through the non-judicial process.  Robin, if there's a bona fide foreclosure, then owning the "right title and interest" is sufficient.  That foreclosing party owns the title subject to the redemption; that's why the buyer gets a SHERIFF'S CERTIFICATE OF SALE until the redemption period's up, and then a SHERIFF'S DEED.  

D. Blair Clark
LAW OFFICES OF D. BLAIR CLARK PC
1513 Tyrell Lane, Suite 130
Boise, ID 83706
Phone:  208-475-2050
Fax:  208-475-2055


-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Randy French
Sent: Tuesday, June 21, 2016 3:27 PM
To: 'Robin Long'; 'Bankruptcy list'
Subject: Re: [CLBS] HOA Lien

In my view, if they get right title and interest, they have the right to possession and can evict whoever is in possession.  If they foreclosure, your client has not further right title or interest to the property, unless it has a right of redemption.  They would have the right to rent the property out and unless there was an assignment of rents, they could use the rent as they see fit.



-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Robin Long
Sent: Tuesday, June 21, 2016 3:08 PM
To: Bankruptcy list
Subject: [CLBS] HOA Lien

I have a client who filed bk a couple of years ago. His HOA has a statutory lien and are threatening to foreclose. I talked with one person who believes that since they are subordinate to the first deed of trust, all they can get through foreclosure is right, title and interest, but not the right to evict my client. I agree, unless they come in and pay off the first mortgagee. In that situation they would own the house and could evict him. Has anybody seen an HOA foreclose their lien? Would they do this simply to secure second position? I can't imagine an HOA buying a home, but this particular one has made clear that they want my client out of the property.

I would appreciate any insight on this issue, and any experience others may have had.

Robin Long
Attorney
Foley Freeman PLLC
953 S. Industry Way
Meridian, ID 83642
P.O. Box 10
(208) 888-9111
(208) 888-5130

Website: http://www.foleyfreeman.com<http://www.foleyfreeman.com/>
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