In Texas, if you fail to pay your home association dues, an HOA has the legal power to foreclose on your home -- even if you own it free and clear. May Clauer says that she got into a funk over her husband's deployment and failed to pay bills. She let the mail pile up, even the certified letters. May and her parents owned the $300,000 Frisco home free and clear -- May's parents apparently helped her buy the place, which is about 20 miles north of Dallas.
But the Clauers lost their home by failing to pay $977.55 in homeowners association dues.
Now their case is heating up the Lone Star State, and could become a pivotal argument for changing Texas state law. In years past, bills to protect Texas homeowners from the claws of HOAs have failed. But due to the unique circumstances in this case -- Capt. Clauer is in the military, fighting to defend his country in Iraq -- the topic may come up as fast as a summer storm, once the legislature convenes in January. The story is spreading on local and national blogs, and gaining steam in the continuing saga over HOA power in Texas.
Meantime, the Clauer family has been allowed to live in the house under a judge's order, and a federal district judge ordered all the parties to try and mediate a settlement. Everyone involved in the case has hired an attorney -- some may even need bodyguards.
The story has become so hot, in fact, that the Heritage Lakes Homeowners Association and its management company, Select Management, have received death threats. The HOA hired a high-profile Dallas publicist, David Margulies, once an award-winning reporter for the local ABC affiliate, WFAA-TV. Margulies has had some challenging clients: Wal-Mart; a travel company investor accused of deceptive sales and advertising practices; the step-grandson of Anna Nicole Smith, and a troubled tile company. Margulies has been fighting back in the media on behalf of the HOA -- with a second report on WFAA, an in-depth story in The Dallas Morning News, and on local blogs.
The attorney representing the Clauers is banning her clients from interviews pending deposition.
"This is so outrageous," their attorney, Barbara Hale, told The Dallas Morning News. "There's a strong opposition to the power that HOAs are granted in Texas that goes beyond Capt. Clauer and his military status."
Clauer's military status, and whether he was active when the home was foreclosed on, is crucial to the case, according to attorneys. A federal law, the Servicemembers Civil Relief Act, protects those on active duty from certain legal and financial obligations, including foreclosure, without going to court. Captain Clauer was on active duty from Feb 15, 2008 to October 9, 2009.
But the publicist, Margulies, says that Heritage Lakes checked with the military and were told he was not on active duty. In fact, they received a certificate from the military stating that Clauer was not even in the military. Margulies claims that the Clauers were behind on their debts -- including payments to the HOA -- long before Michael Clauer was deployed to Iraq, where he commanded a convoy security company. The irony in this whole situation, said Margulies in an e-mail, is that had Capt. Clauer or anyone else contacted the HOA by telephone, fax, e-mail or regular mail, and told them that he was in the military, there would have been no foreclosure.
"The HOA has a 24/7 answering service, as well as a webpage and e-mail address," says Margulies. "Had anyone contacted the HOA and said the family was having financial trouble they would have worked out a payment plan. The family was two years behind in their HOA dues – not the two payments that Channel 8 reported."
Hale says that in spring of 2009, when May Clauer realized she was behind on the HOA dues, she called and made a payment. Later that spring, the new owner stopped by and asked if the house was a rental -- making no reference to the fact that he had purchased it at auction.
Margulies also wonders how a person could ignore bills for that length of time -- particularly utility bills. When you fail to pay your electric bill, off go the lights.
The difference, says Hale, is that the utilities give you a warning before they cut off service; Heritage Lake Homeowners Association gave no warning. According to the Morning News, the Clauer home was purchased at an auction for $3201 by Mark DiSanti and Steeplechase Productions. The house was sold in May 2009 for $135,000 to Jad Aboul-Jibin of Plano, Texas, also north of Dallas, who also now has an attorney. The attorney says his client is an innocent buyer and simply needs to be reimbursed -- which no one has offered to do thus far.
The HOA is very patriotic, says Margulies; it recently received a flag and plaque for raising money for soldiers during Operation Iraqi Freedom. And one good thing has happened out of this mess. Margulies says his clients, Heritage Lakes Homeowners Association, will now ask people when they purchase a home if they are in the military. And they also will call homeowners as part of its regular protocol during any foreclosure proceedings.
As to who gets to stay in the house, all that may be decided this week -- stay tuned.
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