ARS 33-1807(K) Partial Payments Received
A neighbor is dealing with our HOA through the collections attorney for past due assessment and the law firm sent back the certified check that was for the amount of the assessment. The attorney is relying on a reading of the statute that she doesn’t have to accept a check for anything less than what she says is due including her legal fees, fees that haven’t been awarded by a court.
Who is the lead legislator to work with to get this language revised so that the attorneys don’t have this fine point to rely on? My plain language reading of the statute didn’t see this possibility because the entire provision assumes that the owner can submit payment covering only the assessment and that is has to be applied to the assessment balance.
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Is it possible that she was simply making the law fit her needs? My HOA twisted the ARS 33 – 1803 and said that homeowners had to reply to all violations and anything important by certified mail when it actually says it’s an option for homeowners they’ve done so much like this it’s ridiculous but could that be with that lawyer did? She basically made it up?
You are correct. The only provision in statute that requires a certified letter from a homeowner is in the current violation enforcement process. That I’ve been trying to get changed for years. I’ve already solicited a legislator to sponsor legislation to change the entire enforcement due process statute and eliminate this requirement and many others for the 2027 legislative session.
Because a lawyer says anything does not make it true. Lawyers get to interpret the law but the first rule of interpretation is the literal language used in the statute. Any judge will come to the same conclusion but that does not stop any attorney from interpreting the law in any fashion they believe benefits their client. While you pay for their services the homeowners are not the client of the attorney, even the board is not the client the nebulous corporate entity of the the association is the attorney’s client. Most board don’t even understand this fact and believe that the advise of the attorney is what is best for the community. It is not and will never be. For the most part it is what is best for the attorney.
Dennis
Dennis
This is an absolute lie. We clarified the statutory language in 2024 to specifically include attorneys and closed a loophole they used for years. The law requires the association and any agent of the association to accept any payment from a homeowner and apply it first to past-due assessments, then to current assessments, with a detailed listing of all subsequent payments. The law also states that the association cannot transfer control of a debt to anyone, including an attorney. The attorney can provide collection services for the association, but cannot control the debt or any payments made on it.
Your neighbor needs to be really careful here; this attorney is ignoring the protections I intentionally put into the law for their own financial gain. She needs to contact me and provide me with more details on her situation so that I can guide her directly. She may need a consultation with an attorney is this has gone too far.
Dennis
Dennis,
A homeowner in our condo association has been turned over for some time now to collection efforts by the Association’s Attorney at Maxwell & Morgan PC.
But now, when this homeowner hand-delivers a check for a significant portion of the past due assessments, fees, and awarded attorney’s costs, M&M refuses to accept any payment amount less than the full amount owed. Will you explain when this is allowed and how it relates or doesn’t to ARS 33-1256? What can a homeowner do?
This is never allowed by law since 2024 when we successfully changed the laws to counter the specific illegal activities of this law firm. Every dollar paid by any homeowner must be accepted under the law irrespective of any provision in any contract entered into with any collection attorney and apply that payment to any delinquent assessment first then to any assessment due but not yet delinquent. Neither the association or the attorney can require that only full payments be accepted. You association based on the illegal activities risk not only losing any assessment due they also risk losing any cost incurred of applied by its unscrupulous law firm, late fees and any interest on the delinquent assessment. Your homeowner must make a record of every attempted payment and any rejection of that payment by the law firm. Talking to the law firm will be useless because criminals don’t care about the law. The next time anyone from the law firm denies any payment simply respond to the law firm that you will be filing a complaint with the Arizona Bar association based on their illegal refusal to accept payment and that they will be reported the the Federal Government for breach of the Fair Dept Collect Act, and lose their ability to act as a debt collector for any client. But your Board must understand that they are responsible for the illegal actions of their agents and if they want to continue to be able to collect on delinquent assessment from anyone they would be well served to actually comply with the law, and demand that their agent do the same.. The current law also prevents any association to transfer control of the lien to any attorney or collection agency. I know because I put that provision into law. See the last sentence to section N. of the statute.
I cannot tell you how much I hate this law firm and the abuses they have caused to homeowners. There is absolutely no integrity with any of the attorneys in this firm as one of the principle patterners was cited in several cases to have intentionally committed fraud to the court by making intentionally false an inaccurate claims to a judge on a foreclosure case. Continue trying to make payments and record every attempt and the date of payment. Was the homeowner ever provided a certified letter 30 days prior to the association engaging their attorney to conduct collection activities. If you never received that certified letter in bold face all cap lettering the association also violated the law. Make a specific note of not receiving that notice. Under the law the association must reach out and offer a payment plan prior to filing an action to foreclose on your home. That is very important and your opportunity to tell the association of the illegal collection activities of their agent and advise them that the homeowner will enter into a payment plan to only pay the delinquent assessment due without late fee or interest as those were all compromised by the illegal activity of their attorney. No matter what only pay the delinquent assessment value as soon as possible. If the association or law firm refuses to comply with the law and proceeds to attempt to file a foreclosure action, immediately get an attorney. Tell him/her of the failure of the association to comply with the due process of the law and give him/her all your records. They should immediately file a motion to dismiss the case and to vacate the entire common expense lien, also seek an award of all legal fees you incurred in fighting this illegal lien and collection practices. Request that the attorney be referred to the Arizona Bar Association for disciplinary action and potential disbarment for breach of the legal code of ethics in directly violating and causing they client to directly violate state law. Your debt should be cancelled, your legal fees paid, and the law firm disciplined, if their is any integrity in the Arizona court system.
Dennis