Unlocking Success: Using Legal Representation Over Collection Agencies for Delinquent Condominium Assessments

Unlocking Success: Using Legal Representation Over Collection Agencies for Delinquent Condominium Assessments 

Community associations play a crucial role in maintaining the integrity and functionality of shared living spaces. However, when faced with delinquent condominium assessments, these associations often encounter significant challenges in recovering the owed amounts. While some may consider turning to collection agencies as a solution, there are compelling reasons why community associations should select a law firm instead. Debt collection agencies primarily work to recover debts, often handling a large volume of accounts. While they employ methods like phoning debtors and sending late payment notices, their approach is limited and may not be suitable for complex legal matters. Additionally, the process may seem automated and simply checking the boxes rather than identifying solutions for effectively collecting delinquent assessments. On the other hand, legal representation can offer a range of remedies to pursue delinquent assessment, such as sending demand letters, initiating lawsuits, obtaining money judgments, and enforcing these judgments through various legal means. Additionally, legal counsel can negotiate settlement agreements tailored to the specific circumstances of the debt.

The main difference between legal counsel and a collection agency is that legal counsel can take legal action against debtors. Collection attorneys are licensed professionals who can represent associations in court and file legal claims against delinquent co-owners. Collection agencies, on the other hand, are not licensed to practice law and cannot take legal action.

Understanding Debt Collection Laws

In Illinois, community associations are governed by the Illinois Condominium Property Act, which outlines procedures for assessment collection, including notice requirements, the placement of liens on delinquent properties, and foreclosure proceedings. Associations must provide written notice to delinquent unit or lot owners before taking further collection actions, and they have the authority to initiate foreclosure proceedings to enforce liens for unpaid assessments. Delinquent owners are granted a right of redemption to reclaim their property by paying the outstanding assessments and associated costs. While complying with state statutes and case law, associations must also be mindful of federal laws like the Fair Debt Collection Practices Act (FDCPA) when engaging in debt collection activities. Consulting with legal counsel familiar with Illinois laws is essential for community associations to ensure compliance and effectively enforce assessments against delinquent owners.

Implementation of a Reasonable Collection Policy

The board of directors bears the responsibility of enforcing collection actions, necessitating the implementation of a reasonable collection policy. This policy should establish firm due dates, late fees, and steps for addressing delinquencies uniformly. Compliance with state and federal laws, such as the Fair Debt Collection Practices Act and bankruptcy provisions, is paramount to avoid legal pitfalls.

Involvement of Legal Counsel

Upon the failure of non-litigation options, involving legal counsel becomes imperative. Attorneys specializing in community association law possess the expertise to assess delinquent accounts thoroughly and recommend the most effective course of action. Collaboration between the board, property manager, and legal counsel ensures informed decision-making and adherence to due process procedures.

Collection Litigation

Legal counsel facilitates the pursuit of delinquent assessments through litigation, utilizing strategies tailored to the association’s circumstances. Whether pursuing personal obligations or leveraging assessment liens, legal expertise is instrumental in maximizing recovery while navigating complexities such as foreclosure procedures and equity considerations.

Obtaining Attorney Fees and Costs

Under the Illinois Condominium Property Act, some provisions address the recovery of attorney fees and costs in certain situations related to condominium associations and common interest community associations.

1. Section 9.2 of the Illinois Condominium Property Act: Includes provisions allowing condominium associations and common interest community associations to recover reasonable attorney fees and costs incurred in enforcing the association’s declaration, bylaws, rules, and regulations. This typically applies in cases where the association prevails in legal actions against unit owners or members who violate governing documents or fail to comply with association rules.
2. Foreclosure Proceedings: In cases where the association initiates foreclosure proceedings against a delinquent unit owner for unpaid assessments, the association may be entitled to recover attorney fees and costs associated with the foreclosure action.
3. Statutory Liens: Condominium associations have the authority to place liens on delinquent units or lots for unpaid assessments. If the association prevails in enforcing these liens through legal action, they may be entitled to recover attorney fees and costs incurred in the enforcement process.

Condominium associations in Illinois need to be aware of these provisions and consult with legal counsel experienced in community association law to understand their rights and obligations regarding attorney fees and cost recovery.

Typical Collections Process

While the process for collecting delinquent condo assessments is ultimately governed by declaration, bylaws and the association’s collection policy, the typical process for collections is as follows.

1. The unit owner becomes delinquent by failing to pay their assessments in a timely manner.
2. The association sends a reminder letter advising the unit owner that the payment is delinquent. Then, it will be turned over to the attorney for further action if the unit owner fails to pay their outstanding assessments.
3. If the unit owner still fails to pay their delinquent assessments, the association provides a ledger to the attorney that identifies the delinquent dues, going back to a zero balance along with interest and late fees.
4. The attorney sends an initial demand letter to the unit owner requesting payment of the delinquent assessments. In many cases, the unit owner will enter into a payment plan with the association to pay the delinquent assessments or will immediately pay the arrearage.
5. Although not a required step in Illinois, the attorney may suggest the recording of a lien for delinquent assessments until the delinquent assessments are paid in full.
6. The attorney performs research as to whether the lien will prioritize other prior recorded interests against the property and provides a recommendation to the association as to the available options to collect the delinquent assessments, including possible foreclosure or an eviction action.
7. The association proceeds by filing a lawsuit seeking possession of the unit, or as a last resort, a judicial foreclosure.

As outlined in “A Guide to Collecting Delinquent Illinois Condo and HOA Assessments”, if a judicial foreclosure is the chosen remedy, “After the lawsuit is filed and service of process is completed, one of two things will typically happen. If the unit owner does not file an appearance and an answer, the community association can move for a default judgment after a statutory waiting period. If the unit owner does file an appearance and an answer, the case will proceed towards summary judgment. Unlike other civil actions, in most foreclosure actions, there is usually little to no discovery and cases proceed to summary judgment relatively quickly.”

While the above process for condo association collections is common, keep in mind that every condo collection case is different, and Hirzel Law creates a plan for each matter based on the facts and circumstances of that case. Our collection process is clear and transparent so that everyone involved is informed throughout the process.

Conclusion

The decision to use a law firm instead of a collection agency to collect delinquent condominium assessments is a strategic one, with significant implications for the financial health and stability of community associations. Debt collection agencies have faced scrutiny for engaging in improper and illegal debt collection methods. In contrast, attorneys are held to a high ethical standard governed by rules of professional conduct, ensuring fair and lawful practices in debt collection. By leveraging legal expertise, associations can navigate the complexities of the collection process with precision and success. Legal counsel offers tailored solutions, ensures compliance with relevant laws and regulations, and maximizes recovery while upholding ethical and legal obligations to co-owners. Collecting delinquent condo association dues is not fun for condo associations, but it is necessary to provide the required services. At Hirzel Law, PLC, our attorneys can help your association resolve its delinquency issues.

Rita Khan is the Director of Marketing at Hirzel Law, PLC. Ms. Khan received her Bachelor of Arts in American Culture from the University of Michigan, Master of Business Administration with a focus on Business Intelligence from Baker College, Paralegal Certificate from the University of Michigan Flint – Center for Legal Studies, and Graphic Design Certification from the New York Institute of Art and Design. Ms. Khan has over 15 years of experience in the property management industry from residential real estate, student housing, and condominium & HOA management. Ms. Khan holds several designations and certifications such as Certified Manager of Community Associations (CMCA), Association Management Specialist (AMS) and Professional Community Association Manager (PCAM) from the Community Associations Institute (CAI), Accredited Residential Manager (ARM), Accredited Commercial Manager (ACoM), and Certified Property Manager (CPM) from the Institute of Real Estate Management (IREM), Certified Apartment Manager (CAM), Certified Apartment Portfolio Supervisor (CAPS), and Certified Apartment Supplier (CAS) from the National Apartment Association (NAA), Project Management Professional (PMP) from the Project Management Institute, Certified ScrumMaster (CSM) from Scrum Alliance, Professional Certified Marketer Marketing Management (PCM) from the American Marketing Association and Certified Digital Marketing Professional (CDMP) from the Digital Marketing Institute. She is a licensed Michigan Real Estate Salesperson, Broker and Notary Public. Ms. Khan is also a Real Estate Property Management faculty member at Schoolcraft College where she teaches Introduction to Property Management and Residential and Commercial Property Management. Ms. Khan currently serves as the Chair of the CAI-Michigan Social Media Committee and is an active member of the Institute of Real Estate Management (IREM), where she serves as a member of the IREM Foundation Board of Directors and a member of the Board of Directors for the IREM Michigan Chapter. Ms. Khan has previously served as a Delegate Member on the CAI Michigan Legislative Action Committee. She may be reached at (312) 552-7669 or rkhan@hirzellaw.com.