RESOLUTION OF THE
SKYLAND COMMUNITY ASSOCIATION
ADOPTING POLICY AND PROCEDURE FOR
COLLECTION OF UNPAID ASSESSMENTS
SUBJECT: Adoption of a policy and procedure regarding the collection of
unpaid assessments.
PURPOSE: To provide notice of the
Association’s adoption of a uniform and systematic procedure to collect
assessments and other charges of the Association.
AUTHORITY: The Declaration, Articles of
Incorporation and Bylaws of the Association and Colorado law.
EFFECTIVE
DATE: January 1, 2007
RESOLUTION: The Association hereby adopts the
following policy and procedure:
1. Due Dates. The Operation and Maintenance Assessments
shall be due and payable once a year, on a date established at the sole
discretion of the Board (“Annual Assessment”). Any levied Annual Assessment,
Noncompliance Assessment, or Emergency Assessment (hereafter collectively
referred to as “Assessment”) not paid in full to the Association within 30 days
of the due date may incur late fees and interest as provided below.
2. Late Charges on
Past Due Assessments. The
Association may impose a reasonable monthly late fee for each Owner who fails
to pay an Assessment within 30 days of the due date. This late fee shall be a
“common expense” for each delinquent Owner. Regardless of whether a late fee is
charged, the Association may also impose interest from the date due at the rate
of 18% per annum on the amount owed for each Owner who fails to timely pay
his/her Assessment within 30 days of the due date.
3. Personal
Obligation for Late Charges. Any
late charges shall be the personal obligation of the Owner(s) of the Lot or Unit for which such assessment is unpaid. All late
charges shall be due and payable immediately, without notice, in the manner
provided by the Declaration (and as set forth herein) for payment of
Assessments.
4. Return Check
Charges. In addition to any and all
charges imposed under the Declaration, Articles of Incorporation and Bylaws,
the Rules and Regulations of the Association or this Resolution, a reasonable
fee, not to exceed $20.00, shall be assessed against an Owner in the event any
check or other instrument attributable to or payable for the benefit of such
Owner is not honored by the bank or is returned by the bank for any reason
whatsoever, including but not limited to insufficient funds. This returned
check charge shall be a "common expense" for each Owner who tenders
payment by check or other instrument which is not honored by the bank upon
which it is drawn. Such return check charge shall be due and payable immediately,
upon demand. Notwithstanding this provision, the Association shall be entitled
to all additional remedies as may be provided by applicable law. Returned check
charges shall be the obligation of the Owner(s) of the Lot
or Unit for which payment was tendered to the Association. Returned check
charges shall become effective on any instrument tendered to the Association
for payment of sums due under the Declaration, Articles, Bylaws, Rules and
Regulations or this Resolution after the date adopted as shown above. If two or
more of an Owner's checks are returned unpaid by the bank within any (fiscal)
year, the Association may require that all of the Owner's future payments, for
a period of one (1) year, be made by certified check or money order. This return
check charge shall be in addition to any late fees or interest incurred by an
Owner. Any returned check may cause an account to incur late charges if full
payment of an Assessment is not timely made within 30 days of the due date.
5. Attorney Fees on
Delinquent Accounts. As an
additional expense permitted under the Declaration and by Colorado law, the Association shall be
entitled to recover its reasonable attorney fees and collection costs incurred
in the collection of Assessments or other charges due the Association from a
delinquent Owner. The reasonable attorney fees incurred by the Association
shall be due and payable immediately when incurred, upon demand.
6. Application of
Payments. All sums collected on a
delinquent account that has been turned over to the Association’s attorney
shall be remitted to the Association’s attorney until the account is brought
current. All payments received on account of any Owner or the Owner's property
(hereinafter collectively "Owner"), shall be applied to payment of
any and all legal fees and costs (including attorney fees), expenses of
enforcement and collection, late charges, returned check charges, lien fees,
and other costs owing or incurred with respect to such Owner pursuant to the
Declaration, Articles, Bylaws, Rules and Regulations, or this Resolution, prior
to application of the payment to any Assessments due or to become due with
respect to such Owner.
7. Collection
Process.
(a) After an Assessment
or other charges due to the Association becomes more than 30 days past due, the
Association shall send a written notice (“First Notice”) of non-payment, amount
past due, notice that late charges may have accrued, and request for immediate
payment.
(b) After an Assessment
or other charges due to the Association becomes more than 60 days past due, the
Association shall send a second written notice (“Second Notice”) of
non-payment, amount past due, notice that late charges may have accrued,
application of the 18% accrual, notice of intent to file a lien, and request
for immediate payment.
(c) After an Assessment
or other charges due to the Association becomes more than 90 days past due, the
Association’s manager shall file a lien and may turn the account over to the
Association’s attorney for collection. Upon receiving the delinquent account,
the Association’s attorneys shall send a letter to the delinquent Owner
demanding immediate payment for past due assessments or other charges due. Upon
further review by the Board, the Association’s attorney may be directed to file
a lawsuit. If a judgment or decree is obtained, including without limitation a
foreclosure action, such judgment or decree shall include reasonable attorney’s
fees together with the cost of the action and any applicable interest and late
fees.
(d) In addition to the
steps outlined above, the Association may elect to suspend the voting rights of
any Owner whose account is past due at the time of such voting.
8. Collection
Procedures/Time Frames. The following time frames shall be followed for use
in the collection of the Assessments.
|
Operational &
Maintenance Assessments Due Date
|
Annually, due date
established by the Board
|
|
Late Charge Date (date
payment may accrue interest and/or late fees if not received on or before
that date)
|
30 days after due date
|
|
First Notice
|
After 30 days past due
|
|
Second Notice
|
After 60 days past due
|
|
Lien Filed; Delinquent
account turned over to Association’s attorney
|
After 90 days past due
|
The
attorney is to consult with the Association as necessary to determine if payment
has been arranged or what collection procedures are appropriate.
9. Certificate of
Status of Assessment. The
Association shall furnish, for a reasonable fee, within 30 days to an Owner or
such Owner’s designee upon written request, prepaid first class postage, return
receipt, to the Association’s agent, a written statement setting forth the
amount of unpaid Assessments currently levied against such Owner’s property.
However, if the account has been turned over to the Association’s attorney,
such request may be handled through the attorney.
10. Bankruptcies and
Foreclosures. Upon receipt of any
notice of a bankruptcy filing by an Owner, or upon receipt of a notice of a
foreclosure by any holder of an encumbrance against any unit within the Association,
the Association shall notify the Association’s attorney of the same and turn
the account over to the Association’s attorney, if appropriate.
11. Use of Certified
Mail/Regular Mail. In the event the
Association shall cause a collection or demand letter or notices to be sent to
a delinquent Owner by regular mail, the Association may also cause, but shall
not be required to send, an additional copy of that letter or notice by
certified mail.
12. Referral of
Delinquent Accounts to Attorneys. Upon referral to the Association’s
attorney, the attorney shall take all appropriate action to collect the
accounts referred. After an account has been referred to an attorney, the
account shall remain with the attorney until the account is settled, has a zero
balance or is written off. The attorney, in consultation with the Association,
is authorized to take whatever action is necessary and determined to be in the
best interests of the Association, including, but not limited to:
a. Filing of a suit
against the delinquent Owner for a money judgment;
b. Instituting a
judicial foreclosure action of the Association’s lien;
c. Filing necessary
claims, documents, and motions in bankruptcy court in order to protect the
Association’s interests; and
d. Filing a court
action seeking appointment of a receiver.
All
payment plans involving accounts referred to an attorney for collection shall
be set up and monitored through the attorney.
13. Appointment of a
Receiver. The Association may seek
the appointment of a receiver if an Owner becomes delinquent in the payment of
assessments pursuant to the Declaration and Colorado law. A receiver is a disinterested
person, appointed by the court, who manages the rental of the property,
collects the rent and disburses the rents according to the court's order. The
purpose of a receivership for the Association is to obtain payment of current
assessments, reduce past due assessments and prevent the waste and
deterioration of the property.
14. Judicial
Foreclosure. The Association may
choose to foreclose on its lien in lieu of or in addition to suing an Owner for
a money judgment. The purpose of foreclosing is to obtain payment of all
assessments owing in situations where either a money judgment lawsuit has been
or is likely to be unsuccessful or other circumstances favor such action.
15. Waivers. The Association is hereby authorized to
extend the time for the filing of lawsuits and liens, or to otherwise modify
the procedures contained herein, as the Association shall determine appropriate
under the circumstances.
16. Communication
with Owners. All communication with
a delinquent Owner shall be handled through the Association’s attorney once a
matter has been referred to the attorney. No member of the Board of Directors
shall discuss the collection of the account directly with an Owner after it has
been turned over to the Association’s attorney unless the attorney is present
or has consented to the contact.
17. Defenses. Failure of the Association to comply with any
provision in this Policy shall not be deemed a defense to payment of
Assessments, late charges, application
of the 18% accrual, return check charges, attorney fees and/or costs as
described and imposed by this Policy.
18. Definitions. Unless otherwise defined in this Resolution,
initially capitalized or terms defined in the Declaration shall have the same
meaning herein.
19. Supplement to
Law. The provisions of this
Resolution shall be in addition to and in supplement of the terms and
provisions of the Declaration and the law of the State of Colorado governing
the Association.
20. Deviations. The Board may deviate from the procedures set
forth in this Resolution if in its sole discretion such deviation is reasonable
under the circumstances.
21. Amendment. This Policy may be amended from time to time
by the Board of Directors.
PRESIDENT'S
CERTIFICATION: The undersigned, being the President of the
Skyland Community Association, a Colorado nonprofit corporation, certifies that
the foregoing Resolution was adopted by the Board of Directors of the
Association, at a duly called and held meeting of the Board of Directors on
_______________ and in witness thereof, the undersigned has subscribed his
name.
SKYLAND
COMMUNITY
ASSOCIATION,
a
Colorado nonprofit corporation
By:
,
President
