What to do if my debt was improperly referred to an attorney for collection but although I was never notified of the delinquency?

The debt is to a HOA and the rules state I must be notified in writing before referral for collection. I have, however, no way to prove the negative (that I didn’t receive a notice). I attempted to pay just the debt (not attorney fees) but they returned the check uncashed. The HOA claims to have sent a single letter a year ago. I have made some payments since. Will a court negate the fees and force the debtor to accept my payment of just the legitimate debt.

Asked on June 11, 2012 under Bankruptcy Law, Maryland

Answers:

Rebecca Coleman

Answered 8 years ago | Contributor

The court will look to the contract or agreement with the HOA to determine whether to allow attorney fees (as well as any late fees, interest, etc.). If the contract allows for the attorney fees, then the court will allow them. 

As for the notice requirement, if the payments you made after getting a letter from the HOA a year ago did not fully pay off what was owed, then the original letter likely counts as sufficient notice (again, it will depend on what the HOA documents and contract say specifically about this). If you think that the HOA rules require more notice than you were given, you can raise this issue with the court as a defense, and the court might refuse to allow the attorney fees. But remember that once a lawsuit is filed and the attorney appears in court, the attorney fees amount might go up even higher because of the extra work involved. So if you lose, you could wind up with an even higher amount of fees to pay.

 


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