Delinquencies, Collections and the Need for a Collection Policy

johnny_automatic_bag_of_moneyCommunity associations are nonprofit corporations, which are funded solely by dues/assessments paid by members. Unfortunately, when one member fails to pay his or her fair share, the rest of the members must make up the difference. As a matter of equity, it is simply unjust for the other co-owners—who typically have not done anything wrong or have no involvement in the defaulting co-owner’s failure to pay—to make up the difference. This article explores the role of the community association board of directors, the property manager and the association’s legal counsel in collecting against a delinquent co-owner.

1. Responsibility for Assessments/Dues

Pursuant to the association’s governing documents, or by statute, as in the case of condominiums [MCL 559.169], a co-owner is required to pay assessments/dues. The governing documents of an association often include the purpose or use of an assessment, the basis for calculating the assessment, payment procedures, collection procedures for delinquent assessments and the authority for levying fines, fees, and interest. Typically, if co-owners within an association are on notice of the consequences of nonpayment, the compliance rate for payment of assessments/dues will be greater. If an association waits until delinquency becomes a problem, it may be too late for the association to obtain a proportionate remedy.

2. Implementation of a Reasonable Collection Policy

A community association’s board of directors is responsible for the implementation, continuation and enforcement of collection actions. Directors cannot ignore delinquencies for a multitude of reasons. First, the board of directors has a fiduciary responsibility to attempt to collect on delinquent assessments/dues. Second, if assessments are not collected in a timely manner, it can jeopardize the association’s economic health and stability. Third, without a steady source of income, the association may be unable to provide essential services to the co-owners, thereby deferring necessary maintenance to roofs, siding, and other responsibilities. Therefore, it is important for board of directors, with the assistance of its attorney, to create a reasonable collection policy which treats all delinquencies equally to avoid a claim for selective enforcement.

A formal collection policy is the foundation of a successful collection program in order to maintain necessary cash flows, reduce financial loss from owner defaults on assessment payments, establish and maintain reserves and present a sound financial picture to potential lenders for the association and/or a mortgage company for potential purchasers or owners refinancing their mortgages. Once the collection policy has been established, it must be communicated/disseminated to the co-owners and become part of the association’s governing documents.

A standard collection policy will set forth a firm due date for assessments [typically by the 1st of the month] and in the case of non-payment, the levying of a late fee [typically the 15th of the month]. In addition, a standard collection policy 1) outlines the steps to be taken by the manager or person responsible for collecting assessments when a payment is overdue, 2) allows for payment plans in cases of special need and financial hardship, 3) specifies when a delinquent assessment should be automatically referred to legal counsel once a delinquent account reaches a specified age or amount [typically no later than two months] to avoid any claims of selective enforcement and/or favoritism, 4) provides for the collection of any attorney fees and costs associated with collecting delinquent assessments and 5) addresses when the assessment of attorneys’ fees are incurred.

When establishing the collection policy, it is also important to make sure that your association’s collection procedures not only conform to state law, such as Article 9 of the Occupation Code on debt collection, MCL 339.901 et. seq., and the Collection Practices Act, codified in MCL 445.251 et seq., but federal statues, as well, such as the Fair Debt Collection Practices Act, 15 U.S.C. 1601 et seq., and provisions within the Bankruptcy Code, Title 11 of the United States Code, among others.

3. Involvement of Legal Counsel

Once the collection policy is implemented and a co-owner becomes delinquent for a specific amount of time, the matter should be tendered to legal counsel. The association’s attorney will evaluate the delinquent member, determine if there are assets and examine all of the various options for pursuing the delinquent member. After a thorough analysis, the attorney should advise the board members as to the best course of action. In order to effectively do this, it is essential that the association’s attorney has as much information available when the account is turned over such as a detailed breakdown of all activity on the account, the name(s), phone number(s) (if known), last known addresses, off-site addresses, names of all occupants and tenants, work addresses, and any other relevant information, copies of checks, money orders, etc., before proceeding with a collection action. If the association’s property manager is not yet involved in the matter, and often times the property manager is intimately involved, the attorney and/or the board should update the property manager regarding the board’s decision.

If the association documents include due process procedures such as notice and a reasonable opportunity to respond prior to initiating any litigation, associations after consultation with the association’s attorney may pursue other options in conjunction with the notice and hearing schedule, such as the suspension of recreational privileges and turning off utilities. In addition, in condominium communities, associations have the ability to divert rent from a delinquent co-owner’s tenant for payment of delinquent assessments/dues. See MCL 559.212.

Often times, payment plans and work-outs for first time delinquents are appropriate. If the association takes an inflexible, hardline approach from the outset, such action may cause additional issues throughout the matter and may force the owner to default on their mortgage or to file for bankruptcy. A payment plan for a “first-time” delinquent will usually result in cooperation and creates goodwill with individuals that have a legitimate financial hardship. However, accepting a payment plan does not mean that you should accept less than the total amount due, including all fees and costs.

4. Collection Litigation

If the non-litigation options fail, there are two basic methods for recovery of delinquent assessments: 1) pursuing the owner’s personal obligation to pay all assessments when they become due while he or she owns the property and 2) the use of an assessment lien which runs with the property itself regardless of who owns the property, which can by foreclosed either judicially or by advertisement, if provided for in the governing documents for homeowner associations and statutorily by MCL 559.208(2) for condominiums. The type of foreclosure will depend on such factors as whether there are junior lien holders that a title company wants a court order of priority in order to issue a commitment, whether the co-owner will vigorously contest the foreclosure, whether there are renters in the unit or simply whether there is equity in the unit.

The owner’s personal obligation entitles the association to file suit for breach of contract against an owner who fails to pay his or her assessments. On the other hand, the assessment lien theory allows an association to file a lien against the property and then do one of three things: 1) wait until the property is sold to collect, 2) foreclose the lien and take the property to satisfy the amount owed, if there is equity in the property or 3) if it is underwater, to lease the unit/home after foreclosing on the lien, until, and if, the first mortgage holder forecloses. By waiting too long to turn over an account, an association may lose out if a mortgage foreclosure is filed against the unit or the owner goes into bankruptcy. In a foreclosure, the lender will assume ownership of the unit before the association has a chance to collect its money.

5. Obtaining Attorney Fees and Costs

With regard to recouping attorney fees and costs, the Michigan Condominium Act allows for condominium associations to recoup reasonable attorney fees and costs incurred for pursuing delinquent co-owners so long as the governing documents provide for this remedy. See MCL 559.206. Likewise, homeowner associations can also recoup reasonable attorney fees and costs incurred so long as the governing documents provide for their recovery and the association prevails in the action against the co-owner/member. All governing documents should include a provision for the recoupment of actual attorney fees and costs.

When determining the reasonableness of attorney fees incurred by the association, courts will often look to data contained in surveys such as the Economics of the Law Practice Surveys that is published by the State Bar of Michigan ( to determine the fee customarily charged in the locality for such services and multiply the fee by the number of hours reasonably spent. Therefore, it is extremely important to ensure that the association’s attorney falls within the reasonable range set forth in the survey.

In addition, recent bankruptcy courts have held that delinquent homeowners are not liable for the fees and costs imposed by an association’s collection company if that company operated on a ‘contingency basis’ instead of a ‘fixed fee’ basis. Because the association was not responsible to pay the collection company’s fees directly, those fees were not costs ‘incurred’ by the association. Thus, it is important to review whether attorney fees are recoverable from the outset.

6. Conclusion

It is critical for the association’s board to continually review receivables and aggressively pursue the collection of delinquent accounts. Being proactive on delinquent accounts typically results in far fewer delinquencies and a shorter period of time co-owners are delinquent. While the association may have to recognize losses, with a firm collection policy in place and the prompt turnover of delinquent owners, the likelihood of collecting and reducing delinquencies increases dramatically.

William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or Please view The Michigan Community Association Law Blog at or for additional resources on Michigan Community Association Law. 

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Attorney’s “Community Development via Crowdfunding” Article Featured in MIPRIMA Publication

The July 2014 publication of the Michigan Public Risk Management Association (MIPRIMA) featured an informative article on crowdfunding written by Karen Daley, an attorney in our Livonia office and head of the Firm’s appellate division.

“Crowdfunding” is a term used to describe a method of raising money through the Internet. Ms. Daley’s article, Smarter, Faster, Cheaper: Community Development via Crowdfunding, outlines how local crowdfunding efforts give Michigan residents a way to invest in Michigan businesses. Furthermore, crowdfunding can be used as a tool to educate Michigan residents on the community economic development process, identify community priorities, and implement projects within the community.

To read the complete article, please click here.

Ms. Daley can be reached at (734) 261-2400 or

Google Glass: Use of wearable technology in the workplace creates the need for updated workplace policies

Wearable technology is becoming more and more present in our technologically-based society. Google Glass is “smart eyewear” featuring a small computer built into a pair of glasses. Google Glass functions much like a smartphone, but users see a visual display in their line of vision and operate the device with voice commands. The glasses provide a hands-free way to be fully connected to technology at all times.

After being in production and testing stages for over a year, Google has now made the device commercially available to the public. Wearers are able to connect to social media, take photographs with only a wink, browse the internet, and send messages all without using their hands. Other wearables are also on the horizon. Both smart-watches and wearable automatic camera clips are publicly available. While this technology may be entertaining and fun for personal use, it provides interesting challenges when such devices are brought into the workplace, and businesses should consider updating their security and personnel policies.

Though wearable technology might be the way of the future, it presents inherent risks of intrusion into the workplace. Because Google Glass has photograph and video recording capabilities, often without others being able to perceive when a photo has been taken or a recording made, use of the device in the workplace can threaten the privacy of employees, data security, or even the disclosure of trade secrets. For example, a Glass user could record other employees without their consent, record discussions at meetings, take photographs of sensitive and confidential documents or images on computer screens, or photograph proprietary information.

Software and applications on the device also carry their own risks. Because the device works much like apps for smartphones, there is a risk of third-party transmission or interception of data that can carry security risks to sensitive information. Programs not officially sanctioned by Google could have spyware or malware that could leak information to untrusted sources and impair security systems.

Several companies and organizations have already assessed the use of Glass for security purposes: Las Vegas casinos have banned use of such technology, arguing that the use can violate state wiretapping laws if a recording is made without the other party’s consent; Guantanamo Bay has banned the use of these devices after a reporter wore them to the facility; and the USAA has banned the use of Glass and other similar technology in the workplace.

Businesses should consider reworking their workplace policies and handbooks in order to account for the influx of wearable technology. Depending on your workplace, it may or may not be realistic to ban such technology outright. However, workplace rules should be in place about acceptable and unacceptable uses and should take into account the potential security threats that are involved.

Please contact CMDA to review and update your employee policies and handbooks.

New Tools for Consumers in the Fight Against Identity Theft and Credit Report Errors

In the wake of the Great Recession, which, according to the Bureau of Labor Statistics, began in December 2007 and ended in June 2009, a flurry of federal legislation was enacted to provide support for consumers.  The Fair Credit Reporting Act, which became effective July 21, 2010, was amended to provide for “one-call fraud alerts.”  Under this amendment, if you believe you have become a victim of identity theft, you may call a credit reporting agency, such as Equifax, Experian or TransUnion and provide proof of identity.  After the credit reporting agency receives this call and proof of identity from you, it must include a fraud alert in your file and provide this alert along with any credit score generated using that file for a period of not less than 90 days.  This is essential for protecting your credit in the future.

Consumers who believe they have become victims of identity theft should take the following steps:

Step 1: Place a fraud alert.  Placing an initial fraud alert is free and should be provided to all three credit reporting agencies.   This step is crucial because it will make it more difficult for the identity thief to open accounts in your name.  The contact information for the three credit reporting agencies are as follows:

Equifax:  1-800-525-6285 or

Experian: 1-888-397-3742 or
TransUnion:  1-800-680-7289 or

Step 2: Order Credit Reports.  Contact all three credit reporting agencies again and explain that you have placed an initial fraud alert, that you would like to order a free copy of your credit report, and ask each credit reporting agency to show only the last four digits of your social security number on your report.

Step 3: Create an “Identity Theft” or “Credit Repair” File.  Putting a stop to the fraud, and then repairing your credit, will be a time-consuming and arduous process.  You will find that staying organized and maintaining detailed records will help you greatly.  Your identity theft or credit repair file should contain a record of the dates you made calls to the three credit reporting agencies and include copies of all correspondence.

Step 4: Create an Identity Theft Report.   This is a two-step process, the first of which is to create an identity theft affidavit, and the second is to file a police report.  To prepare your FTC Identity Theft Affidavit, contact the FTC at 1-877-438-4338 or  If you complete the form online, simply click “submit,” and then save the complaint reference number that appears afterward.  Then, click on the “Click here to get your completed FTC Identity Theft Affidavit” link.  Make sure you print or save your Identity Theft Affidavit because you will not be able to save or print it after you leave the screen.  If you file your complaint with the FTC via telephone, ask for the complaint reference number and affidavit password.  The FTC will then e-mail you a link so that you can obtain your Identity Theft Affidavit.

The next step is to file a police report.  Bring the following items to your local police department:  a copy of your FTC Identity Theft Affidavit; any proof of the theft you may have; a government-issued ID with a photo; and proof of your address, such as a pay stub, rental agreement or utility bill.

Ask for a copy of your completed police report and retain it in your identity theft or credit repair file.  Specifically, make note of your police report number.  This number will often be requested when you file disputes with merchants for various charges.  Lastly, attach your FTC Identity Theft Affidavit to your police report and keep a copy of it in your file.

Step 5: Work to Repair Your Credit.  Submit your FTC Identity Theft Report to credit reporting agencies, merchants, health care providers, and such as you work to repair your credit.

Identity theft is occurring more often, due in part to the recent data breaches with merchants, hospitals, and various websites. In next month’s newsletter, look for an article on signs that you may have become a victim of identity theft.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, utilities Law and municipal Law. She may be reached at (734) 261-2400 or

Bill Would Allow Strip Searches for Misdemeanor Crimes

In a 2012 decision, the Supreme Court evaluated the constitutionality of jail policies that required all inmates, including inmates suspected of minor offenses, to undergo routine strip searches prior to their admission to the general inmate population.

Several organizations comprised of jail officials, among others, submitted amicus curiae briefs in which they outlined the risks that accompany the admission of inmates to the general population. Deferring to their judgment and expertise, the Court concluded that the policies bore a reasonable relationship to “legitimate penological interests.” The Court reasoned that the policies provide jail officials with the means to detect and prevent the spread of contagious or communicable diseases, to identify and treat injuries that require immediate medical attention, to ascertain gang affiliation, and to prevent the introduction of contraband.

From that premise, the Court held that the policies struck an appropriate balance between the privacy of inmates and the security needs of jails. The Court declined to comment on the extent to which its holding would apply in circumstances where inmates are arrested without a warrant and detained without assignment to the general population. Thus, the Court’s holding, though amenable to a broad application, may be subject to a narrow, yet-to-be-recognized exception.

Section 25a of the Michigan Code of Criminal Procedure may soon align with the Supreme Court’s decision.  Section 25a currently prohibits jail officials from strip searching inmates arrested or detained for misdemeanor offenses or civil infractions absent probable cause to believe that they are concealing a weapon, a controlled substance, or evidence of a crime.

Senator Jones, a former jail administrator and sheriff, recently introduced a bill that would repeal Section 25a’s probable cause requirement and authorize jail officials to strip search inmates arrested or detained for misdemeanor offenses or civil infractions as a matter of course. The bill would leave Section 25a’s warrant requirement intact. According to Senator Jones, the Michigan Sheriff’s Association approached him to discuss the prospect of introducing the bill. Whether the bill will pass remains to be seen, but it will likely receive a vote in the fall session.

Lindsey Kaczmarek, an attorney in our Livonia office, concentrates her practice on municipal law and civil litigation defense.  She may be reached at (734) 261-2400 or

Immigration: The Effect of Slyusar v. Holder on the “Incredible” REAL ID Act

What was the exact date of your first hair cut?  If you cannot remember and you are an asylum applicant, you may have just earned yourself a deportation order back to the country you were fleeing.  Under the REAL ID Act of 2005 (Act), Immigration Judges (IJ) have an “incredible” amount of power and latitude when making credibility determinations.  With the implementation of the Act, any inconsistency in an applicant’s story is reason enough to earn a deportation order, whether or not the inconsistency went to the heart of the claim for asylum.  An adverse credibility finding is the death blow to the applicant’s claims for asylum and any relief from removal, preventing such claims from being considered on their merits.

A recent decision coming out of the Sixth Circuit Court of Appeals has recognized the troubling precedent that has been set regarding credibility determinations.  The Court in Slyusar v. Holder spent a significant amount of time cautioning the IJs in their future credibility findings.  The Court acknowledged the sweeping power the Act gives to the IJs, but placed special emphasis on the Court’s prior precedent in Ren v. Holder.  The Court in Ren v. Holder noted that the power of the IJ is not the equivalent of a “blank check” enabling the IJ to, “insulate an adverse credibility determination from the Circuit’s review of the reasonableness of that determination.”

The Slyusar Court expressed further concern for precedent that even if an omission or inaccuracy is categorized as de minimis, it may still support an IJ’s adverse credibility finding.  By way of example, the Court observed multiple adverse credibility determinations that are often based on external factors not indicative of truthfulness.  These decisions seem to be in conflict with the actual language of the Act requiring that IJ’s make credibility determinations considering the totality of the circumstances, and all other relevant factors.

The Sixth Circuit appears to be moving to a softer landing on judging an asylum applicant’s credibility.  The final words of the Slyusar Court are used to urge the exercise of due care in evaluating inconsistencies when reaching a credibility determination.  Attorneys and those who work with asylum applicants should keep an eye on future asylum opinions coming out of the Sixth Circuit.  If the trend follows Slyusar, we should be on our way to correcting some of the absurdity of the Act.

Sara Lowry, an attorney in our Livonia office, concentrates her practice on municipal law, litigation, and immigration law.  She may be reached at (734) 261-2400 or

Bah Humbug! Holiday Lights and Condominium Restrictions:Navigating Time, Place and Size Restrictions

Traditionally, during this time of year many Americans enjoy displaying lights, wreaths and other decorations as part of the holiday season.  However, what happens when a person moves into a condominium project and the Condominium Association’s property manager or the Board indicates there are restrictions on what items can be hung, where those items can be hung, how long the items can be hung and when lights are permitted?  All too often, a co-owner may become irate and challenge the restrictions as unfair or a violation of the co-owner’s legal rights.  In such situations, a co-owner may be torn between family traditions and complying with community restrictions.

Some 66 million Americans live in a shared ownership community.  A hallmark of shared ownership living is that a co-owner gives up some individual rights for the good of the community as a whole.  Consequently, whether an individual lives in a condominium, a homeowner’s association, a co-operative or a summer resort association, in exchange for having the lawn mowed, the streets, driveways and sidewalks plowed and the outside of the units painted; each co-owner has some restrictions on what can and cannot be done, including holiday decorations.

In order to properly address the displaying of holiday decorations, a Board should first examine its goals in establishing restrictions.  If restrictions are deemed appropriate, the Board should consider holiday decoration restrictions, in general, rather than any specific holiday because doing so could expose the Association to a lawsuit regarding a co-owner’s religious beliefs. Moreover, the restrictions should not dictate the content of the decorations. Finally, the Board should place the restrictions in the Association’s declaration or bylaws and then utilize rules and regulations to implement those restrictions.

After determining its goals, the Board should review the Association’s declaration and/or bylaws to determine its authority to set a policy on decorations and what written provisions, if any, were included in the recorded documents.  In most instances, the Board will have the right to regulate any holiday decorations placed on the common elements or on individual homes. This includes items such as outside lights, blow-up decorations, seasonal greenery and decorations that play music.  In condominiums, most Associations will have restrictions that prohibit residents from attaching lights or individual decorations to the general common elements.  In the case of a homeowner’s association, the Board can generally regulate decorations because the decorations modify home exteriors.

After reviewing the declaration and/or bylaws, the Board should study past policies adopted by previous Boards for the Association and determine if any changes need to be made.  A copy of the policy should be mailed to each co-owner, if changes are made.  Also, a property manager may wish to include a copy of the policy in the Association’s newsletter in advance of the holiday season.

Whether the Board implements past policies or adopts new ones, the restrictions should be reasonable as to the 1) time, 2) placement and 3) size of the decorations.  When creating timing restrictions, the Board should examine how long the decorations should be available during the holiday season and at what times the lights and/or sound can be on, i.e. on at dusk and off by 11:00 p.m.   With regard to decoration placement, the Board will need to determine if the decoration can be placed on the roof, lawn, front yard, backyard, doors, windows and/or roof line.  The Board should also make a determination on whether to restrict the size of the decorations.  For example, the Board can limit the length and/or the amount of decorative lights.  Typically, co-owners do not want to live beside the Griswolds (Christmas Vacation) or Buddy Hall (Deck the Halls) with the night turning into day and/or excessive traffic in the community by gawkers traveling to see the lights.

Frequently, the Board may decide to decorate the common areas itself. The Board should take care to ensure that decorations and holiday displays do not give the impression that the community favors one particular religion over another.  If the Board were to do so, it could subject the Association to potential discrimination claims under the Fair Housing Act (FHA) and other federal and state fair housing laws.  As a matter of prudence, I frequently advise Boards to avoid decorating the common areas.  In the event that the Board decides otherwise, it may be prudent to hang general holiday decorations and signs that state Happy Holidays or other non-religious language.  However, if religious symbols are utilized, the Board should ensure that it allows equal treatment for other religious symbols.  Please note that the FHA restrictions do not apply to religious displays by private homeowners.

Another recent development regarding holiday decorations pertains to our service men and women involved in ongoing conflicts around the world.  As an example, a co-owner may request an exception to the time restrictions for holiday decorations.  In such an instance, the Board may establish a policy for such families to make a written request to the Board that includes the date when the family member is expected to return home in order to allow the Board to monitor which owners have a legitimate reason for not removing decorations and which owners simply have not complied with the Association’s restrictions.  The policy should indicate that any lights and other decorations should be removed within seven (7) days after the family member returns home.

Finally, the decoration restrictions should clearly state the penalties for noncompliance. For practical and legal reasons, the Board should remember to set reasonable standards. All too often, a Board will create intricate restrictions on holiday decorations that other owners have found to be loud, obnoxious and/or extravagant.   As a result, the Board’s knee-jerk response often leads to poorly written policies or documents, unreasonable restrictions or otherwise inconsistent provisions.  If a community’s restrictions have been properly drafted, implemented and enforced in a reasonable and consistent manner, family traditions can continue even after moving into a shared ownership community.  Have a happy and safe holiday season!

William Kolobaric is an attorney in our Livonia office.  He may be reached at (734) 261-2400 or

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Our Thoughts are with the Bieniewicz Family

John Bieniewicz, a married father of two sons ages 9 and 13, was refereeing an adult-league soccer match in Livonia, MI on Sunday when authorities said a 36-year-old player punched him in the head, knocking him unconscious.  He passed away on Tuesday, July 1.

Attorney Jim Acho was a classmate of John’s at Catholic Central High School and a close friend for 30 years. Jim explains, “He’s a fantastic human being.  A guy who lives life to the fullest.  I speak for all his friends when I say we are devastated. Crushed. Just a senseless way for a great guy to go out.  He deserved better.”

A memorial site has been created, which links to a GoFundMe site established to help with funeral and burial expenses and to also help his children moving forward.

“One senseless act in the blink of an eye has affected so many,” Jim said.  Our thoughts and prayers are with John’s wife and children.