Failure to Accept Partial Payments Dooms Foreclosure Judgment

Failure to Accept Partial Payments Dooms Foreclosure Judgment

By Michael J. Gelfand, Esq. / Published March 2021

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When the owner of a Florida unit or parcel is delinquent with assessments, what happens when the owner seeks to make a partial payment? Must the association accept the partial payment? Interestingly, there appears to have been some dispute, leading to severe consequences!

     The disposition of partial payments played out before a Florida appellate court, which just recently issued an opinion that should draw the attention of all involved in the assessment collection process. In Rajabi v. Villas at Lakeside Condominium Association Inc., 45 Fla. L. Weekly D 2543 (Fla. 5th DCA, November 13, 2020), a condominium unit owner made several late payments in 2010 and early 2011, leading to accumulating interest and late fees.

     As of January 2011, the association claimed the outstanding balance was $82.50. The association filed its first claim of lien in April 2011. The owner repeatedly wrote to the association requesting account information, but the association allegedly ignored his requests.

     In July 2013, the association filed the second claim of lien, claiming $9,815.35 for assessments. Although the association sent the owner a notice of intent to foreclose the second lien, the association apparently never sent the owner a notice of intent to file the second lien. The first lien had been extinguished because the association failed to act on it in a timely fashion.

     The owner continued making his monthly assessments until November 2013. The owner claimed he stopped making payments because the association stopped crediting his account and began forwarding his checks to the association’s attorney where the checks were deposited into the attorney’s trust account. The association filed a complaint to foreclose the second lien. Thereafter, the trial court granted final judgment for the association in the amount of $135,205.80.

     The Florida appellate court reversed the decision of the trial court on two grounds. First, the court found that the association failed to provide the owner with a notice of intent to file the second lien. The court explained that Florida law does not contemplate a “supplemental” claim of lien piggybacking onto a prior lien that has been extinguished by the passage of time.

     Secondly, the court found that the association erroneously handled the owner’s payments, violating both the Condominium Act and Declaration of Condominium’s allocation provisions. The court stated the following:

     The association’s failure to properly apply Rajabi’s payments as they were received was a breach of the Declaration and a violation of the controlling statute that requires reversal. The procedure utilized was particularly egregious given Rajabi’s repeated attempts to obtain account information from the association. Had the association communicated with Rajabi, it is likely the $82.50 outstanding balance in January 2011 would not have snowballed into a $135,205.80 judgment.

     In reversing the original lien foreclosure, the association was not provided an opportunity to fix its lien! To the extent the association can prove a delinquency, then the association must start anew.

     This decision provides Florida community associations with important lessons. Timely filing of assessment lien foreclosure complaints is critical, especially for condominium associations, where a claim of lien is normally extinguished one year after recording and cannot be revived after being extinguished.

     Notably, this decision does not prohibit the filing of a new claim of lien. However, if a new claim of lien is filed, then notices of intent to lien and intent to foreclose must be provided as required by law! 

    As the decision pointedly quoted from an earlier opinion, associations and those acting for associations, such as managers, who fail to accept partial payments do so at their peril!

Profanity against Directors Not Prohibited

     What is going on? We have all heard stories. Many of us have actually seen how rude some neighbors are to each other.

     Thankfully, bad behavior is still the exception, especially in small communities. But what can you do to protect yourself and your community’s staff from a neighbor yelling and cursing? Can the target ask a judge to force it to stop? What if it is far beyond rude and crosses the line into profanity? If repeated, can it be treated as stalking?

     Continuing confrontations in a South Florida condominium complex forced a Florida appellate court to address whether a stalking injunction was appropriate to “keep the peace in uncivil neighborhood interactions.” The facts in Cash v. Gagnon, 45 Fla. L. Weekly D 2467 (Fla. 4th DCA, November 4, 2020), indicated that Gagnon and Cash lived in the same condominium complex. 

     Their relationship went south when Gagnon joined the board of directors at the same time that Cash was not reelected. From that time forward, the “civil unrest” began.

     Eventually, Gagnon filed a petition seeking a judge to enter an injunction to prevent Cash from stalking him. Gagnon alleged that Cash aggressively yelled at Gagnon, that Cash accused Gagnon of lying and stealing, that Cash cursed at him about trees which blocked Cash’s view from his condominium, that Cash revved his car engine near him, and that Cash blocked him from leaving an elevator. The trial court granted the injunction.

     The Florida appellate court disagreed that an injunction was the appropriate way to deal with a dispute between two neighbors. The court noted that Florida law defines stalking as a person who “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person,” §784.048(2), Fla. Stat. (2019). The law further defines “harass” as conduct that “causes substantial emotional distress to that person and serves no legitimate purpose.” To invoke the stalking law, the prohibited conduct must occur not just once, but requires multiple acts taking places at different times.

     The court went on to explain that there must be more than just profanity and accusations of lying to satisfy the statute. The only incident that might have satisfied the statute was the incident where Cash blocked Gangon from leaving the elevator. All the other incidents were “merely uncomfortable neighborly disputes that do not rise to the level of stalking.” The court concluded that the statute does not allow the trial court to enter injunctions simply “to keep the peace” between neighbors who are unable to get along civilly toward each other.

    In other words, this Florida court wasn’t going to inject itself into name calling and yelling between neighbors. It may not be your first choice, but letting an owner “blow off steam” even if rude and profane may be necessary, and doing so without reducing yourself to being rude likely will result in the screamer being embarrassed, not you. Not responding, especially not responding with like rudeness, can also provide your community an example of calm and professionalism. 

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at or (561) 655-6224.