Q: HOA Lien Foreclosure. Does FL 720 require that a lien be FILED/RECORDED w court before Intent to Foreclose is sent?
720.3085 (5) states the the notice for Intent to Foreclose must be substantially in the following form “This letter is to inform you a Claim of Lien has been filed…”. The text “has been filed” (past tense) leads me to believe the lien must be recorded before Intent to foreclose notice. However the notice from HOA stated “a Claim of Lien is being recorded” and the HOA “intends to foreclose the lien”.
TIMELINE OF CASE
Month 1 - Intent to Claim of Lien for Fines sent by HOA
Month 4 - HOA atty prepared & signed Lien (not recorded until Month 11)
Month 5 - Notice of Intent to Foreclose sent. Text stated “a Claim of Lien is being recorded” and the HOA “intends to foreclose the lien”.
Month 11 - Lien filed with Clerk of Circuit Court
Month 12 - Foreclosure filed with Clerk of the Circuit Court (50 days after lien filed).
QUESTION : Should a new Notice of Intent to Foreclose be sent AFTER lien recorded & BEFORE the Foreclosure filed? If so, is the foreclosure already file valid?
A: The lien does need to be recorded prior to the notice of intent to foreclose being sent. Anytime you are dealing with a procedural irregularity it needs to be properly addressed. The appropriate legal procedure must be followed in the foreclosure action or the right to claim it as a defense may be waived. Please feel free to reach out for a free consultation.
A:
Filed and recorded are two different things in the legal world. Filed means it was sent to the clerk and recorded means the clerk recorded the document. There could be a situation where the document was sent to the clerk but not recorded (lost in the mail? lost by the clerk?). Not all attorneys e-file liens. In reality the judge will tell you that you had 7 months to pay the debt and didn't.
The more viable argument would be was the intent to lien sent after 07/01/2021 and, if so, did you first receive a notice of late assessments that included just the fine, interest and late fees first. If not, then you should contact a debt collection defense lawyer about a Fair Debt violation-- both state and federal.
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