Q: I received a summons of HOA fees that I paid to our new Management company. The old management company is suing me
We received a letter stating that we would be switching from Barnett Management to Continental Management. We paid Continental and I called Barnett to confirm the change. I was blindsided by the summons and didn't realize I owed anything to Barnett as I was told to pay Continental. I never received a bill from Barnett until I received the summons in October of this year which has legal fees and late fees attached. I tried calling Barnett but they want me to only speak to the lawyers at Kauman and Cusimano. We never received correspondence of having to pay two different management companies and feel we should not owe legal/late fees when we paid who were communicated to pay
A:
You have a defense of payment (Accord and Satisfaction). The HOA will assert that you were late in payment and never paid until the law firm was engaged and you received the complaint. The ability to demonstrate the timing of your payment will be critical to your defense.
I believe that the HOA will file liens and lawsuits because the statutory scheme in Ohio allows the HOA to recover its attorney fees. (HOA would never be able to collect one or two months of fees without the fee shifting statute.). As a result, the attorney fees that will be incurred by the HOA during the small claims hearing will be more than the HOA fees that they claim you owe. Small claims will limit the time and expense so maybe the attorney fees will be less.
If you can demonstrate that you timely paid your HOA fees and you are willing to risk having a judgment rendered against you, then you can defend the small claims and your risk would not be that great.
If you can demonstrate that you timely paid your HOA fees, and you want to increase your risk and potentially your reward, then you could file a motion to move the case to the regular docket based upon having a valid defense of payment. On the regular docket you can participate in discovery, determine whether the law firm is a debt collector, and whether the law firm knew or should have known that the lawsuit was not legitimate. If you can demonstrate those items, then you could bring a fair debt collections practices act claim.
Most likely the best approach would be to call the law firm, show them that you paid and see if they will dismiss the complaint.
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