I have received summons from HOA past due fees+. I have some affirmative defenses written down. Could you please advise?

Asked about 3 years ago - Yorba Linda, CA

Affirmative Defense

1. Failure to Mitigate Damages
Property was foreclosed by the bank, Aurora Loan Services, on 11/2009.
Plaintiff failed to pursuit of the property prior to bringing any action against the person
(debtor) personally according to California Code of Civil Procedure 726(a)
The bank, Aurora Loan Services, is responsible to pay.
If necessary, I seek Judge's permission to sue the bank.

2. Act of God
Defendant had 3 investment properties. One property, not listed in Summons, was lost in
fire on 11/2008 which caused the domino effect of financial hardship.
Loan modification was not granted for any of properties. Defendant lost all properties in
foreclosure. Defendant is in danger of loosing primary residence.

Thank you!!

Attorney answers (3)

  1. Pamela Koslyn

    Contributor Level 20


    Best Answer
    chosen by asker

    Answered . I don't think your affirmative defenses will succeed.

    Realize that your HOA dues are due regardless of what your lender on your mortgage does, and in many cases, the HOA dues have recorded their Deed of Trust before the bank, so their lien has priority. Your bank isn't obligated to pay your HOA dues, so a suit against the lender won't get you anywhere.

    Your finanical hardship isn't a defense either, and it's unclear from your statement about foreclosure applies to "all" properties, including your primary residence.

    Is bankruptcy a viable option? It would at least buy you some time, so depending on your other debts, you might want to see a bankruptcy lawyer for help.

  2. Frank Wei-Hong Chen

    Contributor Level 20

    Answered . Neither of these are valid affirmative defenses.

  3. Jeffrey Logan Whitcomb

    Contributor Level 13

    Answered . An affirmative defense is a fact that is outside the complaint that defeats the allegations in the complaint. For example, a statute of limitations is an affirmative defense to a perfectly alleged contract complaint if the complaint was not filed within the limitation period.

    It does not sound like the defenses you described are affirmative defenses.

    Good Luck.

    Jeffrey Whitcomb
    Whitcomb Law Firm, Ltd.

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