Maine Alliance for Road Associations


 

nonpayment of assessment

  • 02 Sep 2018 12:44 PM
    Message # 6650363

    We currently have a lot owner late with an unpaid assessment fee for 2018 who indicated he will not meet with the BOD to set up a payment plan to satisfy the debt by Dec 31. ( we are on a calendar year). He also indicated he will be filing for bankruptcy.

    We are a nonprofit therefor we must go to small claims court to collect with a lawyer as to my understanding. Is there clarity on this as to 13-b nonprofit act and if so where?

    We got advice to file a lien from a lawyer with the register of deeds which confuses me with no advice as to small claims court.

    Am I wrong as to procedure? Do we file a lien with the register of deeds and then go to small claims to collect?

    The lawyer was awful. He told us his client was our member filing bankruptcy therefor the client/attorney thing and we had to talk in hypotheticals. So we're looking for another lawyer (do you know of any?)

    Thanks for any help.

  • 07 Mar 2019 11:37 AM
    Reply # 7204619 on 6650363

    Hi Mike, Based upon my past experience I would look at his filing for bankruptcy as a welcome situation but my advice is not to wait...record a Notice of Claim as soon as the timing allows. Assuming that his property is involved it should be posted as an asset. Also, if there is a mortgage on the property say with bank, I assume that the bank is not being paid either and that eventually they will force a sale of the property. When that happens make sure all parties (bank, real estate agency, title company, and any other involved attorney) are aware of the recorded Notice of Claim (NOC). One of these entities may attempt to "scare" you that you can't provide such a document but what's wrong with communication. Make sure they are aware you are following a statute which you can quote if necessary. In the meantime I'd suggest drafting a document which will be the basis for an invoice that will likely be requested by the entity that pays off the Notice of Claim. I also suggest including all costs in the invoice that will include the road maintenance fee, interest at the same rate that your town applies to unpaid property taxes (my idea), recording cost for NOC, recording cost for NOC Discharge, cost of certified mailings and any other cost that your Association incurred in receiving payment-in-full.

    I believe you can still follow the NOC route even if you get involved in small claims action. I assume you are comparing the cost of a small claims attorney (I'm guessing several hundred $) with the amount owed. If so, in our case, small claims action would not be worth it.

    Feel free to debate any of my thoughts. Its been many months since I wrote about the collection procedure and I could easily have mis-spoke!

    Good luck,

    P.Dunn


     

  • 10 Mar 2019 10:44 AM
    Reply # 7208925 on 6650363

    Note: If taking someone to Small Claims Court be aware that there are many things that are not counted as income: Social Security, Disability, loans, etc...

  • 11 Mar 2019 12:05 PM
    Reply # 7210438 on 6650363

    Statutory road associations are specifically given the right to file a Notice of Claim, but I don't think there is anything that would prohibit a non-profit from filing one.  My impression is that in Maine you can file pretty much anything you want at the Registry of Deeds to make it a matter of public record.  That way when his property sells, anyone checking to make sure the title is clear will find you have a claim against it.

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