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PUBLISHING DelinquenCIES
QUESTION: The board wants to publish the names of delinquent owners in our newsletter. Is this legal? If so, is it a good idea?

ANSWER: Publishing the names of delinquent owners is an effective means of collecting monies owed to the association. Peer pressure works. Except for publishing the names of owners where the board voted to foreclose on their units (Civ. Code §5705(c)) there is nothing that prohibits publishing the names of delinquent owners. Moreover, the publication is privileged under Civil Code §47(c). That means the association is protected from potential liability for defamation even if the information turned out to be incorrect. (Wilton v. Mountain Wood.)

Privacy Issues. An argument can be made that releasing the names of delinquent owners compromises their privacy in violation of Civil Code §5215(a)(4). Currently, the issue is unsettled. To avoid running into problems, the safest approach is to not publish names.

Conservative Approach to Publishing Names. For those who want to publish names, we can look at how California handles delinquent taxpayers. According to the state's website, California mails each person on its list a certified letter providing the person an opportunity to pay their taxes before the list is published. To avoid being published, taxpayers must do one of the following: (i) pay the liability in full, (ii) establish an installment agreement, (iii) enter into an offer in compromise, or (iv) substantiate a bankruptcy filing. With that in mind, associations could do the following:
  1. Amend the governing documents to include publishing names as one of its collection policies.

  2. Amend its collection policy to include sending a certified letter, return receipt requested, to the owner giving him/her an opportunity to pay before the list is published.

  3. Distribute or mail the list to members only (not renters). Also, do not post the list in the common areas where visitors can see it.

  4. Title the list "Delinquent Owners." Do not characterize owners as "Deadbeats of the Month" or any other pejorative term, and do not state whether foreclosure has commenced against their units (per Civ. Code §5705(c)).

  5. Include a disclaimer such as: "This information was last updated on <date>. Payments made after <date> are not reflected."

  6. Be consistent in publishing names (perhaps quarterly) and be even-handed by publishing all names including directors (unless the person has paid in full, worked out payment plan, or declared bankruptcy).

Fair Debt Collection Practices. The Fair Debt Collection Practices Act specifically excludes a creditor, i.e., the association, collecting their own debt in their own name. The association's officers and employees collecting debts on the association's behalf are also excluded. (CEB Debt Collection Practice in California citing 15 USC 1692a(6).) Since an HOA collecting its own debts is not a debt collector subject to the FDCPA, Section 805 (15 USC 1692c(b)) is not applicable to HOAs collecting their own debts. If an associations posts names of delinquent owners, they need to make sure it's on their own letterhead, not the management company's.

RECOMMENDATION: Boards should seek legal counsel before publishing the names of delinquent owners. Associations needing assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Kessler PLC
    

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