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Condo association loses $40K roof reserve to mortgage company

  
  
  
  
  

Our condo association lost our entire roof reserve, $40,000 in 2008, when our Treasurer put the money into a promissory note, with a mortgage company. It was at a time when all 28 roofs had to be replaced, so the board sent letters telling the owners they must replace their roofs, at their expense. Even though we were not happy with the irresponsible act of the Treasurer, putting the money into something that was not insured by the government, we needed new roofs, and the board expected them done asap. There are only two left to replace and they will be in a couple of months. At our annual meeting last year, when we were told we may be getting some money back. Some where between 1 and 2%, not much we thought, but that was better than nothing.

So far we have received two payments of a little over $2000 each. The Mortgage Company tells us it may take a couple of years or more, but we will be getting up to 40% of our money back. The Board has now decided to disperse, to all owners still living here on Sept.30, 2011, monies received as of then. Any monies received after that will be put into the new roof reserve so there will be enough money for owners in twenty five years, to replace their roofs. We also continue to put money in the roof reserve monthly.

Do you think someone is pulling the wool over the eyes of us seniors? Shouldn't any monies returned from the mortgage company be giving back to us? We paid dues every month for the roofs for years, and still had to pay thousands of dollars out of pocket. If it weren't for Boards, condo living would be great.

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Comments

Why did your board put the reserve into a promissory note with a mortgage company. What were they expecting to get out of it? Were they getting some kind of interest? I've never heard of doing something like this? What was the premise?  
 
I know that banks are not paying much interest but something is better than nothing!
Posted @ Tuesday, October 26, 2010 7:58 AM by Victor
Each of you are entitled to your refunds! You are essentially being heavily taxed...twice! That would be referred to as double dipping. Take a step back. Had the board invested wisely you would have paid for your roof from reserves without having to pay, eseentially, again. You would have continued to build for reserves for the next roof replacement without condition. Why would the board feel they can take your refund check? Would this be like the government deciding they are going to keep your Federal Tax return check? Maybe I'm misunderstanding your situation however it appears to me they are keeping money that is yours. Is the 40% return to you money from the investment in the first place> At the very least the only money that should go back into reserves from your pocket would be that which would have been collected for the roof reserve over the two year period plus interest. Each resident is entitled to be reimbursed for the full amount of the money they had to pay to reroof out of pocket. Please ask for a full accounting of these monies. Run it by a licensed HOA Accountant. What is the $$$ amount you paid out of pocket to do the roof?
Posted @ Tuesday, October 26, 2010 10:43 AM by Pamela
Hello: 
 
I'm usually the last person to suggest you go hire a lawyer. However, in this case, I'll make an exception. What the Treasurer did was a clear violation of his or her fuidiciary responsibilities as the keeper of the money bag. It's time to sue the association and the treasurer for a breach of his or her obligations as a board member. If the board was wise and kept you insured, the insurance company should be able to cover the losses and then they'll likely go after the mortgage company and treasurer to reclaim their funds. That's their problem though. 
 
I can't say it clearly enough, you were wronged by a Treasurer gone wild, it's time to let the attorney handle this. 
 
Darron
Posted @ Tuesday, October 26, 2010 10:53 AM by Darron Hay
As a licensed community association manager in FL, I'd have to agree with Pamela. You do not disclose in which state is your condo so we really don't know the legal recourse homeowners may have if not satisfied with the way this whole thing has been and continues to be handled by the board. If there is proof of willful negligence on the part of the Treasurer, you all could have a case criminal or civil against this individual. If your association has Directors & Officers liability insurance, you may have a legitimate claim. It all depends on your state laws. Regardless, you should consult with an attorney in your area who is familiar with condo associations.
Posted @ Tuesday, October 26, 2010 11:08 AM by Susana Murray
The state doesn't matter if I'm reading this correctly. I've seen this before in my past life as a banker. The Treasurer took the money out of the reserve account and "invested" it with a mortgage company (MC). The MC then loaned the 40k out in a privately held mortgage. The MC was the "bank" using the association's money. The borrower defaulted and God knows what happened to the collateral (house, land, etc) and the money. So, now the MC is left trying to repay the loan out of their pocket. I'm sure there were some pretty intense discussions between the Treasurer and the MC. The MC says to the Treasurer, "Dude, I lost my butt on that loan but I'll pay you back some money out of my commission on the next loan." The Treasurer says, "pay now buddy!" The MC says, "Haha, with what? The borrower defaulted and I don't have any money to repay." I'm 99% sure that's why the MC said it would be a few years and they'd be able to pay a couple grand a month. That's money coming out of someone's commission check. 
 
Like I said, the lawyer needs to take it from here. 
 
Darron
Posted @ Tuesday, October 26, 2010 11:20 AM by Darron
Darron, I hate to disagree. State laws matter in this condo case because most board members are volunteers.
Posted @ Tuesday, October 26, 2010 11:26 AM by Susana Murray
In NJ the treasure and the president can be sued even if they are volunteers. Maybe next time the board should think of playing the lottery with the association money! 
 
Lawyer definitely needed!
Posted @ Tuesday, October 26, 2010 11:37 AM by Victor
Good Morning Susana: 
 
 
 
I know what you're saying and yes the state laws do matter. 
 
I guess my point is that embezzlement is embezzlement regardless of the state the crime is committed in. 
 
If I read between the lines correctly, this dude's in some hot water. After seeing the post again, the original poster said the MC was trying to repay the money 2,000 at a time. Guess what the average commission on a mortgage loan is? Also, he said he could only repay 40% or 16k of the original 40k. He's likely looking at his pipeline of loans and saying 8 commissions is reasonable to avoid some serious consequences. The reason this guy's giving up his commissions on loans is because he realized he screwed up pretty bad and now he's trying to stave off the hammer. 
 
All I can say is bring the heat baby. Tell the lawyer to call the DA and get the party started. 
 
Darron
Posted @ Tuesday, October 26, 2010 11:43 AM by Darron
All of these ideas treat "the symptom," but you need to attack "the disease" to prevent this from happening again. I would suspect that you are operating uder bylaws and declarations drafted at the request of your developer. The developer does not care about governance and voting rights; he cares about selling the complex quickly. As such, he has an attorney knowledgeable about HOA law in his state draft a set of docs that will "pass inspection" with state authorities. Homeowners are then left with managing their HOA with a poorly written set of documents. 
 
 
 
You need to review and rewrite your docs to afford yourselves of much more overisght of the board. However, the ultimate oversight is personal involvement. If the board members and management company know you are looking and questioning, the risk of these types of situations diminishes.
Posted @ Tuesday, October 26, 2010 1:11 PM by Larry Davis
Larry, it is easy to say how to best move forward but the original poster and his/her condo neighbors need legal advice/action pronto, and a favorable outcome from an experienced attorney. To rewrite an entire Declaration or, to amend Covenants and Bylaws, most condo associations need a majority vote. This type of process may take 1 or 2 years to finalize.
Posted @ Tuesday, October 26, 2010 1:42 PM by Susana Murray
It's easy to say anything when you're not the one who has to do it! In this case, the "horse" has left the "barn." Although there are a variety of possible legal remedies, I doubt that any of the guilty parties has the capacity to pay, so you spend money on attorneys to achieve a hollow victory. In the meantime, proper long term action is required. I can't believe that an HOA would need one or two years to revise their documents.
Posted @ Tuesday, October 26, 2010 1:49 PM by Larry Davis
I have done a bit of research on fiduciary responsibility based on my dealings with my board. I am not a lawyer but have done research via the Web and now have also spent some time in the law library researching case law.  
 
 
 
I think it does depend on the state and your bylaws but from what I have found I believe most states hold boards to a pretty stringent fiduciary responsibility in most sates. And it does not have to be so stated in the Condo Act of the State. For example, I have been advised by multiple lawyers that, since my condo association is set up as a voluntary corporation, corporate fiduciary laws most likely apply. 
 
 
 
Some of the examples that I gathered can be found at http://www.wvnorthface.info/nf/pg.php?&page_name=fiduciary  
 
 
 
My association bylaws do not appear to excuse the board if they violated the bylaws - I have a quote from the bylaws on this site.  
 
 
 
Also, even if the association has insurance the insurance policy almost always has exclusions where they will not pay.  
 
 
 
The same fiduciary page link discusses both these other issues as well.
Posted @ Tuesday, October 26, 2010 2:04 PM by Rick
Larry, I know most people use the term homeowners associations (HOA) but in some states the laws difer between an HOA and a Condo Association. Having an attorney revise the governing documents, agreeing in amendments to be made, call a special meeting to submit the proposed changes to the membership, getting all the proxy back, ect. etc. It can take up to 2 years, depending how cumbersome the process presents itself, how often the board meets and, depending on the state laws.
Posted @ Tuesday, October 26, 2010 2:06 PM by Susana Murray
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