Lenders Beware: HOAs Pack a Punch in Foreclosures

Walk into almost any homeowners’ association (HOA) meeting, listen to the discussions about unleashed dogs and roof repairs, and you might think the organization is of little consequence to anyone outside the neighborhood. But you’d be wrong. The seemingly lowly HOA wields a great deal of power — and banks and mortgage servicers must be aware.

Currently, in 34 states, HOAs that are owed unpaid dues have the right to launch nonjudicial foreclosure, meaning they can foreclose on properties without a formal court proceeding.

What’s more, in 22 of these states, homeowners’ associations have “super lien” status, meaning HOA dues owed by a delinquent homeowner take priority over the mortgage. In super lien states, a homeowners’ association can stop a short sale or foreclosure and prevent a property from transferring to real estate-owned (REO) status. In fact, an HOA’s “super priority” status can even wipe out mortgage-related liens.

That’s what happened in September 2014, after the Nevada Supreme Court ruling in SFR Investments Pool 1 LLC v. US Bank, N.A.. Both the bank and an HOA had launched nonjudicial foreclosure proceedings on a property. A real estate investor purchased the property and received and recorded a trustee’s deed. The investor then held that the HOA’s super lien status gave its foreclosure “super priority” and eliminated the bank’s first lien. The court agreed.

As The Wall Street Journal reported following the Nevada court’s decision, the result “is that homes can be put up for auction by HOAs — without the blessing of the mortgage lender — and sold, extinguishing the first mortgage and allowing the investor to get title to the home. Such sales often are for an amount equal to or slightly above the HOA dues in arrears.”

This presents a very real — and potentially widespread — concern for lenders and servicers. One in five U.S. homes belong to an HOA. More than 200,000 HOA-linked homes are in delinquency. And 42% of all delinquent home loans are in super lien states, according to data and technology company Sperlonga in February 2015.

One of the best way for lenders and servicers to protect their first-lien position is by knowing which properties in their portfolios belong to HOAs. Not only will this help enable them to be able to notify HOAs of bank-initiated foreclosure proceedings — as required by Fannie Mae and Freddie Mac — it also will give them a more accurate picture of their exposure in states where HOAs may have the greatest power.

Understanding exposure is key because the “practical impact” for lenders in super lien states is that they must act quickly to pay HOAs what they’re owed in order to protect first-lien position of their mortgages, according to The National Law Review.

Lenders and servicers may save time and increase data accuracy by tapping national databases and related services from third-party providers. Such providers can identify HOA-affiliated properties in lenders’ portfolios; determine whether those properties are delinquent on HOA dues; and contact HOAs on behalf of lenders to ensure required foreclosure notification.