1.  Inheriting the Debts of a Spouse

California is a community property state, meaning that both spouses are equally entitled to funds received, and equally responsible for debts incurred, during the marriage.  After the death of a spouse, the surviving spouse is liable for those debts.  The exception:  if the deceased spouse had property that was legally considered “separate” property, and if the deceased incurred “separate” debts relating to that property, then the debt can only be assessed against that property, and the spouse is not responsible for it.

A typical example of such “separate” property would be a house the deceased spouse inherited during the marriage, and which the spouse kept in their own name and separately mortgaged in order to obtain funds used entirely to repair the house.  In that case, the mortgage loan would need to be repaid out of the proceeds from selling the house.  If the proceeds were insufficient to pay off the loan, the surviving spouse would have no responsibility for the balance.  The surviving spouse might be responsible, though, if the loan proceeds were used for the benefit of both spouses – to pay community debts, or buy assets for the community.  The potential existence of “separate” property and “separate” debt raises legal issues on which it is very worthwhile to consult an experienced probate attorney.

2.  Inheriting Liability for a Co-Signed Note

If you co-signed a note for the deceased – for example, for a car loan, business loan, or other debt – then you become responsible for repaying the debt after the death of the deceased.  If you are obligated on a note because you co-signed it even though you received no benefits from the proceeds, you are a creditor of the deceased’s estate, and should promptly file a creditor’s claim to have the estate pay the note, or repay you if you have already been asked by the bank to pay the balance owing on the note.

3.  Inheriting Assets of an Estate with Excessive Debts

If you inherit assets in an estate with debts, you are not entitled to receive any of these assets until all creditors have been paid.  This means stocks and bonds, real estate, personal belongings, and even family heirlooms must be liquidated to the extent needed to satisfy the creditors.  If this does not produce enough to pay all the debts, then you will inherit nothing, although you are not responsible for paying any debts above and beyond the liquidated assets.

A dangerous situation exists if you take assets out of the estate for yourself before all creditors have been paid.  This sometimes happens because inheritors fail to give creditors the legally required notice and fail to wait the required time before taking the assets or distributing them among family members.  A living trust is no protection against this situation.  A creditor is entitled to be paid from the assets of the deceased, including assets held in a living trust, unless the creditor was given timely notice and failed to file a timely claim for payment from the estate.

 4.  Inheriting Debt Due to Abuse of Trust

Occasionally, a person who has the power of attorney over the finances of a person who is ill or elderly will spend the other person’s money on themselves.  If so, they are responsible for paying it all back; it is an abuse of trust and a crime to take the funds of an incapacitated or elderly person for one’s own benefit.  In that case, the person who has unlawfully taken the money will be required to pay the debts of the estate of the ill or elderly person, to the extent the assets taken (including interest or dividends that would have been earned on those assets) would have covered them.  The person who has acted unlawfully will also be required to pay back funds that should have gone to another inheritor of the estate.

Call San Diego Law Firm for All Probate and Inheritance Issues

If you are concerned that you may be responsible for the debts of someone who is deceased, San Diego Law Firm’s probate and inheritance attorneys can help you.  We can give you sound advice, file legal documents needed to protect you, negotiate with creditors where necessary, and make sure that you receive any inheritance you are entitled to without responsibility for future claims against it.  Please call San Diego Law Firm at (619) 794-0243 to schedule an appointment. We look forward to helping you.

The Big Fish Always Get Away

The federal Communications Decency Act bans any lawsuits against websites and web service providers for publishing third-party content, including reviews, comments, thumbs-up / thumbs- down voting, and even for hosting lengthy, malicious blogs.  You can’t sue Yelp, Google, Angie’s List, RealSelf, HealthGrades, or any review website or website hosting service for libeling you by posting a bad review or hosting a blog that is critical of you. 

In California, the anti-SLAPP (strategic lawsuit against public participation) law also gives people and businesses sued for “discussing a matter of public interest” the right to recover their attorneys’ fees in some situations.  An example: this year, a California Court of Appeal decided the anti-SLAPP law required a dentist to pay $81,000 in attorneys’ fees to Yelp and a negative reviewer who accused the dentist of putting in a mercury filling.  The Court said this review was part of a discussion of “public interest” in the safety of mercury fillings. The dentist had already dismissed the lawsuit against Yelp, but this was of no help. Yelp was immune to suit for bad reviews under the Communications Decency Act, and the subject matter of the review entitled Yelp to recover all of its attorney’s fees under the anti-SLAPP law.   

Protected Opinion or Lawsuit-Worthy Falsehood?

The law does not permit you to sue someone for expressing an opinion that cannot be proved or disproved with facts.  If someone calls you a “creep” or “obnoxious” or says your “prices are too high,” this is opinion protected by the constitutional right to free speech, and you cannot sue for it.  On the other hand, you can sue if someone says, for example, that your restaurant is “filthy” and in fact you follow a careful, well-documented cleaning schedule and received an “A” grade for cleanliness in a recent unannounced state inspection.  A false statement of fact that is injurious to a business is not protected by the right to free speech.

Can You Find Out Who Wrote the Review?

Assuming the review contained a false statement of fact that injured your business, you face a final hurdle: finding out who actually wrote it.

Identifying an anonymous reviewer is complicated.  First, your attorneys must subpoena the review site, or their hosting company, to request the IP address of the viewer.  If the company has already deleted this information, your suit will effectively be over.

If you get the IP address, your attorneys must subpoena the internet service provider – the company that the reviewer used to go online – to request the name of the reviewer.  If the reviewer logged on using a public computer, such as one at a library, your suit will again be at a dead end. If the reviewer used a subscription ISP – an internet service provider such as Cox or Time Warner – the ISP will notify the subscriber of the subpoena, as required by federal law.

Whether you find out the reviewer’s identity or have to fight the ISP for it, the next courtroom battle is always the same in California: to go further, you must provide evidence of each element of your lawsuit – the statement, the evidence showing it was substantially false, and its harmful nature to your business. The court may then decide the review was constitutionally protected free speech, in which case, your lawsuit is over.  If the court allows your suit to proceed, you then face a long, costly, uphill court battle against the reviewer, who may not have any money to pay your lawsuit if you are finally successful.

When is it Worth Suing for a Bad Online Review?

The only situation where it is truly worthwhile to sue for a bad review is where someone has posted a very harmful series of factual reviews that are provably false and are likely to actually harm your business.  Courts are likely to be much more sympathetic if the reviewer turns out to be a competitor, an ex-employee, or someone else who set out to harm your business and did not care if the factual statements in their reviews were true or false. In this case, you can seek both a money award and a court order requiring the reviewer to request removal of the false reviews.  Although review websites are not required to remove false reviews, they are much more likely to be cooperative if you have a court order against the reviewer.

If you decide not to sue, you still have other options.  Among the best:  asking the review site to remove the review on whatever grounds that website allows, soliciting good opinions to “bury” bad ones, promptly responding to bad reviews in a gracious manner whenever a response is permitted, and offering fast solutions whenever the complaint is valid.  It can also help your business to maintain an informative, up-to-date website and a strong presence on social media websites, so that potential clients and customers have multiple ways they can learn all the good things about your business.

Call San Diego Law Firm for Help with All Business Concerns

If you have a business problem or dispute, including one that involves the internet, the experienced business lawyers at San Diego Law Firm have solutions that will save you time, money, and frustration.  In addition to our legal services, we can provide practical and sound management advice if your business is facing a crisis generated by events beyond your control.  Please call San Diego Law Firm at 619-794-0243 to make an appointment.  We look forward to helping you.

In line with consumers’ expectations, social networking website Facebook offers privacy settings that seem to allow you to make some of the information you post – including photos and comments – accessible only to people you choose.  But recent court decisions suggest that some or all of your “private” Facebook postings may lose their private nature once you become a party to a lawsuit.

In California, the right of privacy generally yields to another law, which permits all parties to a lawsuit to seek and obtain information, called “discovery,” from the other parties.  Discovery is all information that is relevant to the subject matter of the lawsuit, plus information that is reasonably calculated to lead to the discovery of admissible evidence. The purpose of discovery is to allow each party to evaluate the merits of all the contentions, and to prepare their own case for trial. 

There are only a few limited situations where the constitutional right of privacy partially outweighs the right to discovery.  Items like employment records, tax returns, personal financial records, medical records, and other highly confidential records cannot be discovered simply because they are generally relevant to the lawsuit, or likely to lead to the discovery of admissible evidence.  Instead, these confidential records can only be discovered if they are “directly relevant” to the lawsuit – likely to help prove or disprove a material fact in dispute.

The problem with trying to prevent other parties to a lawsuit from discovering your “private” Facebook postings is this:

1.  Some of your profile information – your name, photo, age range, locale, and gender – is always publicly available because Facebook makes it public.  The opposing party in a lawsuit will therefore know if you have a Facebook account.

2.  Any of your Facebook friends can put a photo of you or comment about you on their own page and add a link from it to your profile.  Although you can remove the link, you can’t remove the photo or comment from another person’s page.  Also, if you post a comment on someone else’s page, they can choose to make it publicly available.  This means you can’t entirely control what photos and comments about you are publicly available on Facebook.

3.  These photos and comments on other persons’ pages can often be uncovered by the other party (or parties) to your lawsuit by combining diligent searches of numerous Facebook accounts with investigative techniques that allow the other party to identify your friends, your neighbors, your work associates, and various public locations you visit.

4.  Information that is constitutionally protected as private and that can be discovered only if it is “directly relevant” to the lawsuit is typically specific, limited, highly personal material you have confided only to someone who has a legal duty to protect that information from public view – for example, your attorney, your religious advisor, your physician, or your employer.

5.  People who have become your “friends” on Facebook do not have that responsibility towards you, and the fact that you share information with them but not with the general public is probably not enough to prevent that information from being discovered in a lawsuit.

Recent cases from other states suggest that courts will likely be inclined to allow parties to a lawsuit to discover a variety of supposedly “private” information another party has shared with friends via Facebook.  

In one case, a New York court ordered a woman accident victim to give the defendant access to her private Facebook postings after the defendant found public Facebook photos showing the woman engaged in an active lifestyle that would not have been possible if she had actually suffered the injuries she claimed. The court said that as a party to a lawsuit, the woman could not “hide relevant information behind self-regulated privacy settings” on Facebook.   

In another case, a Connecticut court ordered a divorcing couple to share their Facebook usernames and passwords with each other, and ordered them not to delete information already posted, after one spouse claimed the other’s “private” postings would likely show the other spouse’s lack of fitness for custody over the children.

In a third case now pending, defendants in a New York inadequate-security lawsuit are seeking access to the shooting victim’s private MySpace and Facebook postings, after her lawsuit claims of great trauma and resulting fear of crowded spaces were contradicted by public photos of her at a concert, and her own public posts that she was having “so much fun doing everything.”

The bottom line:  if you have a Facebook or other social networking account, or your friends, neighbors, or work associates have one, a great deal of information about you is likely to come out in a lawsuit.  Even when you have fulfilled your legal obligation to tell the truth, social networking information may be used by the other side to support their version of events, which may be mistaken or even intentionally exaggerated.  You’ll need to be prepared for this possibility and to discuss it frankly with your trial lawyer.

The trial attorneys at San Diego Law Firm have years of experience in handling all types of disputes, and are very knowledgeable about social media such as Facebook, Twitter, LinkedIn, and other popular networking resources.  We are used to handling difficult, highly personal information in lawsuits ranging from accidents, to business and real estate disputes, to divorce, to probate, and to numerous other types of cases.  If you need an experienced trial attorney to handle your dispute, please call us at (619) 794-0243 to schedule a consultation.  We can help you.

However, most consumers do not realize that retailers selling fake brand-name items are breaking state and federal laws against “trademark infringement.” A trademark is an identifiable characteristic, such as a word, phrase, a symbol, or even colors combined with a typeface, that helps consumers identify a product. If someone owns the rights to a trademark, they have the right to sue others who use an identical or very similar mark on the grounds of trademark infringement. Brands such as Tiffany & Co., Chanel, and Louis Vuitton have all brought trademark infringement suits, seeking money on the grounds that the sale of the counterfeit goods –often of poor quality – caused confusion among consumers and reduced the value of their trademarked brands.

In cases of counterfeit goods, like fake “Louis Vuitton” handbags, it seems obvious that the seller intended to copy the brand name. However, it is also possible for a person or business to unintentionally infringe on an existing trademark. Recently, a professional copywriter wrote an article explaining how, out of the blue, she received a letter demanding that she change her business name and take down her website because another person had registered the same business name as a trademark. On the advice of an attorney, she complied, because she otherwise could have been forced into a lawsuit and ordered to pay a large court award to the owner of the trademark. Not everyone is so lucky as to be given notice by letter; some people first find out that they are infringing on a trademark when they are served with a lawsuit, and they then end up paying a substantial settlement to resolve it.

Before you choose a name, a logo, a tagline, or even distinctive packaging or marketing materials for your product or services, it’s a good idea to consult with a skilled business attorney who has experience with trademarks. The business attorneys at San Diego Law Firm can research your proposed brand or branding materials and confirm that you will not be infringing on the trademark rights of any other business. They can also register your brand as a trademark for your business, which will both protect it from use by others, and give you a good legal defense if you are ever sued for trademark infringement. Please contact San Diego Law Firm today at (619) 794-0243 for an appointment.

1.  Power of Attorney and Living Trust

If the Alzheimer’s disease is in the early stages, and the elder is still mentally able to make knowing decisions, an experienced wills and trusts attorney can prepare a California power of attorney, health care power of attorney, and a revocable living trust.  These documents will name a trusted family member to make financial and health-care decision once the elder loses the ability to do so, and can help the family to avoid the time and expense of probate court when the elder person passes away.

 2.  Conservatorship

Once the proper legal paperwork is filed, a court can order a conservatorship for an elder person who can no longer make good decisions about their finances and/or health care.  The court authorizes a trusted relative or a paid professional conservator to make those decisions in whatever way is best for the elder.  The conservatorship also prevents other persons from taking advantage of the elder’s mental disability, so that the elder cannot marry, sign a contract for products or services, or sign over stock or property without the conservator’s consent.   

However, a conservatorship is expensive and time-consuming, and for this reason is usually only feasible for elders or families with substantial assets.  It requires ongoing financial and other reporting to the court as well as regular court hearings, which means paying for continuous legal services, bookkeeping services, and possibly the services of a paid professional conservator.  The cost of all of these can add up quickly.

 3.   Representative Payee for Social Security

The Social Security Administration has a Representative Payee program for elders who cannot handle their own Social Security benefits.  A representative payee receives and controls the benefits, spends the money as needed to meet the elder’s needs, and makes reports to the Social Security Administration on how the funds were spent on behalf of the elder.  This is a simple financial management tool that allows a trusted family member or friend to help an elder who has a low income and may not need elaborate money management.

4.  Joint Bank Account or Daily Money Manager

If the elder person still has the mental ability to know what they are doing, a simple way to ensure that the elder’s bills are paid is to add a trusted family member as a joint owner of the elder’s bank account and investment accounts, and have that family member manage the elder’s money and pay his or her bills.

If the elder person can safely stay at home but not manage their finances, and no trusted family member can take on this responsibility, the family can hire a daily money manager (DMM) who is bonded and insured.  Accountants are good sources for locating DMM’s.  A DMM is usually given a checkbook for an account set up for the elder, and they use the funds in the account to pay bills, arrange and pay for services such as cleaning persons or Meals on Wheels, submit insurance claims, and help prevent financial exploitation of the elder by contractors and others. 

The DMM should be required to give the family a monthly accounting of money spent and received on behalf of the elder.  Regular deposits made to the checking account managed by the DMM should be limited to what is needed to pay only a month or two of the elder’s reasonable living expenses. If the family lives in another state, it should authorize a local attorney to visit the elder’s home and communicate with the DMM whenever the family has questions about the care needed or provided, or the amounts being spent, for the elder.

5.  Other Services

In addition to the above, there may be other ways to assist an elderly person with Alzheimer’s.  Most larger communities have adult day care available at a daily rate.  Meals on Wheels or a similar service can be hired to deliver nutritious meals.  Cleaning services can do dishes and provide weekly housekeeping services.  A home health care aide may be hired to assist with bathing and grooming for a certain number of hours each day. 

If the elder cannot safely stay at home, board and care homes are usually less expensive than nursing homes and can provide more comfortable living accommodations.  Typically, five or six Alzheimer’s patients will share a specially modified residential home, and will be cared for by professionally managed staff, with daily visits by a nurse.  These homes can cost several thousand dollars per month, which must be paid for from the assets of the elderly or by the family.  A court order of financial conservatorship may be needed for this, although the reporting is easier since most services will be furnished at a set price by the board and care home.

6.  Medi-Cal Planning

If the elder person’s health or mental capacity has diminished to the point where it is not safe for them to live at home or with a relative, and a board and care home is not feasible, the elderly person may need to go to a nursing home.  Because Medi-Cal is not available to pay the high cost of a nursing home until the elder person has no more assets, the family and the elder person should meet with a skilled Medi-Cal planning attorney as soon as the Alzheimer’s diagnosis is made.  There are numerous Medi-Cal planning techniques to help preserve the elder’s assets for the benefit of his or her spouse or family.  The sooner this planning starts, the more assets can be preserved.  However, it can still be possible to preserve many assets once the person is in a nursing home, even if they have been turned down for Medi-Cal.  You will need an experienced Medi-Cal planning attorney for this process, which is legally complicated.

San Diego Law Firm’s Elder Law Services

San Diego Law Firm provides a wide variety of services for families who need to assist an elder with Alzheimer’s.  We have years of experience in preparing reasonably-priced, carefully tailored wills, living trusts, health care powers of attorney, general powers of attorney, and more.  We also create and help manage conservatorships, and can give you good advice and skillfully handle all of the document preparation and paperwork needed for a Medi-Cal application, and for asset preservation.  New clients are always welcome.  Please call San Diego Law Firm today at 619-794-0243 to schedule an appointment.

United States copyright law protects original articles, books, maps, sheet music, drawings and paintings, plays, movies and recordings, computer programs, and many other types of creative work.  It gives the creator the exclusive right to copy, distribute and adapt the creative work for a number of years, and to license or permanently sell and transfer their rights to others.  There are some limited exceptions to a copyright owners’ control.  For example, a parody of a creative work, or a review that quotes from or reprints a very small part of the work, may be considered “fair use,” which does not require the permission of the copyright owner.  There is also no copyright for a mere idea or concept; the creative work must be in a fixed form that can be seen or heard by others.

A copyright exists from the moment you put your creative work into a fixed form.  However, if you want to bring a lawsuit against someone for using your work without permission, you will have to register the copyright with the United States Copyright Office.  If someone then uses your work without your permission, you file for a court order to permanently stop their use, plus compensation for lost profits, attorney’s fees, and more.

Applying for copyright registration is not difficult, but there are specific rules to be followed.  For example, an application to register a single song must be made on a different form than the form for a group of songs to be registered together.  For another example, website content must be copyrighted separately from any original coding, such as the HTML or programming that governs the display of the content.  There are also specific rules for registration of an automated database that is continuously updated.  For that reason, it is worthwhile to have an experienced attorney file your copyright application if your creative work has potential value. 

If you have produced a creative work that has potential value, the knowledgeable attorneys at San Diego Law Firm can help you protect it.  We can prepare and file the proper copyright application, send formal “cease and desist” letters to anyone using your creative work without your permission, and file suit for compensation if an unauthorized person has used your work for their profit rather than yours.  Please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.  We look forward to helping you.

Detailed terms in the fine print of a contract may determine whether you should accept, negotiate or reject it.  For example, many unemployed persons find temporary work during a tough economy.  In most cases, they must sign an independent contractor agreement with the person or company who hires them.  The contract may list what types of services the persons will provide, how long the job will last, and how much the pay will be.  But this temporary work contract may be full of “legalese,” and the employee may not completely understand all the terms.  This can be risky:  for example, the temporary employee may be agreeing to give up all legal rights to their creative output (such as graphic design or original computer coding), or to not accept work with competitors for a particular period of time.

The same is true with contracts between businesses.  For example, if the commercial landlord for the property where you operate your business gives you a new lease to sign, there may be plenty of problems hidden in the fine print.  The lease may automatically renew several months before the end date, keeping you from cancelling it unless you give notice many months ahead.  Or it may hold you responsible for paying for what seems to be normal property maintenance, such as repaving a parking lot.  Even worse, the fine print of the commercial lease may say that anything you attach to the building – from a sign to an air conditioner – belongs to the landlord at the end of your lease.

The business and real estate attorneys at San Diego Law Firm have years of experience in negotiating, preparing, and revising California contracts.  If you are unsure about whether to sign a business or real estate contract that someone else has prepared, we can review it and work to negotiate and then draft revised terms to make the entire contract more favorable to you.   Before signing a contract “as is,” particularly one whose terms are unclear, please call San Diego Law Firm today at (619) 794-0243 to arrange an appointment.  We look forward to helping you.

For example, if you are sued by a creditor and you ignore the suit and choose not to participate in your defense, your inaction is equivalent to agreeing with everything the creditor says in their legal documents.  You are essentially admitting that you owe the money.

If you do not respond, your creditor will obtain a default judgment against you for the amount of their claim, and possibly, money for their attorney’s fees as well.  The creditor can then enforce their judgment by garnishing your wages or levying your bank account until the entire amount of the judgment is paid.  A garnishment can take up to 25% of your gross paycheck, and a levy can potentially take all the money in your bank account.

There can also be serious consequences if you do not respond to a notice of foreclosure.  Even if you are trying to work with your mortgage lender on a loan modification, it’s important that you also respond to the notice of foreclosure.  If you do not respond, your mortgage holder may obtain a court order that your home be sold at a trustee’s sale, and you will then face eviction by the sheriff. 

If you receive any notice of a legal proceeding, in any type of case, please contact the experienced trial attorneys at San Diego Law Firm for an appointment.  We can explain the numerous options available to you to resolve the dispute, and help you choose the best one for your situation.  For lawsuits, these options may include settlement discussions, mediation, arbitration, or motions to dismiss the court case; for foreclosures, they may include a HAMP program application and/or a bankruptcy filing.  There are other options depending on the type of legal case you are facing.

By obtaining good legal counsel early on, you’ll avoid the possibility of a default judgment with a wage garnishment and/or a bank levy.  You’ll also have the peace of mind of knowing you are receiving high-quality legal help by seasoned attorneys who have your best interests at heart.  If you have been served with a lawsuit, or received a notice of foreclosure or other legal proceeding, please contact San Diego Law Firm today at (619) 794-0243 for help.

The Process

There are four basic considerations in granting or denying an application for social security disability insurance.  They are:

• A Qualifying Medical Exam
• Medical History
• Work History
• Education Level

While the Social Security Administration determines eligibility using all of the above factors, the most crucial element may be the qualifying medical examination.  When a person applies for benefits, the SSA may ask the individual to be examined by a doctor who works for the Social Security Administration. This may not be in the best interest of the applicant, and it may be better for the applicant to get his or her own doctor to perform an exam.  The opinion of the doctor(s) about the nature and severity of a person’s impairment – including symptoms, diagnosis, and treatment – can be the deciding factor in whether an application is approved or denied.

Controlling Factors

Under Social Security Regulations, the doctor’s opinion is the most important medical opinion evidence.  The doctor’s opinion may be given “controlling weight” in the case.  That means that the SSA will adopt the doctor’s opinion as its own.   The SSA imposes many requirements to get to the point where a doctor’s opinion is given “controlling weight.”  It is important to know that not all doctors qualify to provide such opinions. Also, other medical professionals, such as nurses and rehabilitation consultants, will fall into the category of “other sources,” and their opinions will not carry as much weight as those of doctors who are deemed “acceptable” by the SSA.

Importance of Advice of an Attorney

If an applicant’s original claim is denied, and the applicant’s request to have the application reconsidered is denied, the next step is to request a Disability Hearing with an Administrative Law Judge.  Since over 60% of disability applications are denied at the application level, it is best to seek the counsel of an experienced attorney from the start. Success at a disability hearing turns on being able to present the judge with the right kind of evidence that gives a clear picture of the injury. At the same time, the applicant has to be able to respond to the vocational and medical experts who may be asked to testify about the severity of the injury sustained.

Call San Diego Law Firm for Help

The experienced injury attorneys at San Diego Law Firm can advise you on your potential eligibility for social security disability benefits and help you through the application process.  Please contact us at (619) 794-0243 for a consultation.

The monthly and periodic assessments that a HOA collects from its homeowners are the source of the HOA’s operating capital, and allow the HOA to provide services such as maintenance for common areas, security, and amenities enjoyed by the community as whole. When one homeowner fails to pay an assessment, the HOA has less capital available to pay for these items. The result:  to maintain the same level of services, maintenance, and amenities, the other homeowners in the association will end up paying more in monthly and/or periodic assessments.  This situation has become more common with the recession, as many homeowners have lost their jobs or been unable to refinance “sub-prime” adjustable rate mortgages, and have stopped paying their HOA assessments. 

Collection Options

There are several common methods for HOAs to collect delinquent assessments:

1.  Negotiations with the homeowner.  These may be successful if the delinquent assessment is a result of a job loss, and the homeowner has equity, some reasonable expectation of finding a job in the future, and a desire to stay in his or her home. 

2.  Filing a small claims court lawsuit against the homeowner personally for unpaid assessments of up to $10,000.  This is an inexpensive option, and may be a good choice if the homeowner still has funds, or may have funds in the reasonable future, and the mortgage far exceeds the value of the property.  The association can renew the small claims court judgment and seek collection from the homeowner / former homeowner any time in the 20 years after it obtains the judgment.  

3.  Filing a lien on the property for the unpaid assessments.  If the property is sold, the lienholders – who include the holders of any mortgages on the property – are paid from the sale proceeds, or at least have the opportunity to negotiate with the buyer for partial payment of their lien before they agree to the sale.

4.  Non-judicial foreclosure on a lien.  To begin a non-judicial foreclosure, the past-due assessments must be at least $1800 and more than 12 months delinquent.  There are many complications to this method, chiefly that any mortgage holders are likely to outbid the HOA simply by bidding the amounts of their loan.  (This does not wipe out the homeowner’s debt to the association, but it wipes out the immediate security for that debt.)

Consulting an Attorney

If you are a board member of an HOA with one or more delinquent assessments on the books, you should consult an attorney who is knowledgeable about the laws that govern California HOA’s and your options for collecting unpaid assessments.  Our attorneys at San Diego Law Firm can help you select the best collection method for your HOA and help you identify what steps are in your HOA’s best short-term and long-term interest.  Please call us at (619) 794-0243 for a consultation.