Editor's note: Barbara Holland turns her column over to Bradley J. Epstein of Angius & Terry law firm to address military personnel protections against homeowners associations' lawsuits.
Federal and state laws protect homeowners in the military by prohibiting associations from obtaining court default judgments or from foreclosing procedures against active service members.
The purpose of the federal law known as Service Member's Civil Relief Act (50 USC App. § 501, et seq.,) and the state law (Cal. Mil. & Vet. Code § 400, et. seq.) is to strengthen and expedite the United States' national defense by giving homeowners in the military certain protections in lawsuits and with respect to home foreclosures.
In particular, by providing for the temporary suspension of lawsuits and foreclosures, these laws enable homeowners in the military to focus their energy on the defense of the nation. Further, these laws provide for severe penalties against associations who violate these prohibitions.
A court default judgment is what a plaintiff receives when the defendant fails to appear in court after he has received sufficient notice of the lawsuit. Whenever an association is taking steps to obtain a default judgment against a homeowner, it must file a declaration stating if a homeowner is in the military.
Homeowners are considered to be active service members if they are full-time active duty. It is not necessary they be deployed in a war zone.
If the association indicates in a court declaration the homeowner is in the military, then the court may not enter judgment against the homeowner until after the court appoints an attorney to represent her.
If the association indicates it has not determined if the homeowner is in the military, the court may require the association to file a monetary bond in order to obtain judgment. The bond would be used to reimburse the homeowner against any resulting monetary loss if the judgment is later set aside.
In many instances, it is impossible for an association to be certain if a homeowner is in the military, regardless of how much investigation it performs. Accordingly, even if the HOA is fairly certain the homeowner is not in the military, it may be prudent to indicate that the association is "informed and believes" that the homeowner is not in the military.
Also, if a homeowner in the military appears in the lawsuit, then she may request a temporary suspension. The court will grant the homeowner's request if it is proven that the homeowner's current military duties affect her ability to defend herself in a lawsuit and that her military superiors will not authorize military leave.
Further, the courts may suspend an association's execution of a judgment against a homeowner in the military, including suspending an attachment or garnishment of his property or assets, if the court determines his ability to comply with the judgment is materially affected by military service. The court also may order the homeowner to make installment payments to the association to satisfy the judgment.
State law and covenants, conditions and restrictions authorize associations to foreclose on liens for most assessments.
However, associations may not foreclose upon assessment liens against a homeowner in the military (or within nine months after his service ends) where he had purchased the home before military service commenced. The only exceptions to this prohibition are upon a court's order for foreclosure, or upon the homeowner's agreement. It is noteworthy that HOAs are not prohibited from foreclosing upon a lien against a homeowner in the military who purchased a home after military service had commenced.
Penalties against HOAs
Associations and their representatives (such as board members and managers) who knowingly violate these protections for homeowners in the military can potentially face criminal prosecution.
Further, such violations can potentially result in association fines of as much as $200,000, and association representative fines can be as much as $100,000 and/or imprisonment of as long as one year. Finally, if a homeowner in the military prevails in a lawsuit against an association for filing a false declaration, it could be liable for the her attorney fees and for punitive damages.
Consequently, the association and its representatives should exercise great care prior to proceeding with default judgments or foreclosure actions against HOA members who are, or could potentially be in the military.
Barbara Holland, certified property manager, is president and owner of H&L Realty and Management Co. To ask her a question, email firstname.lastname@example.org.