The 15-Sept. court order stipulates that until the class action lawsuit is resolved, the legal amount the Declarant (18 Paradise, LLP or its agent MJ Management) can collect for current and past months is $36 per month.
In the event of sale or refinance of a Homestead property, the closing agent will collect and transfer the disputed amount of $57 per month to a court controlled registry.
The Declarant is prohibited from taking adverse action against you for not paying the $57 increase.
NOTE – Judge Olson recused himself from the case. So it was set to be transferred to Judge Jones but he also had a conflict. Ultimately, the case was assigned to Judge David Freeman, who signed the Order which was then filed on September 15, 2021 at 3:15 pm.
Excerpt from class member attorney, David Andersson’s legal update (full update below):
“The filing of this Court Order represents significant progress in the resolution of the dispute between the Declarant 18 Paradise, LLP, its agents MJ Management, LLC and the Homestead Homeowner Plaintiffs and Class Members.
The important part of the Court Order is found at Paragraph 4 which is summarized below:
Parties have agreed to the following procedures regarding maintenance fees while the action is pending:
a). The Declarant may collect $36/month for current and past months.
b). The Declarant will not take adverse enforcement action against Homeowners who do not pay the $57 increase that was put into effect in 2020.
c). The Order shall not affect the amount actually owed, which shall be determined in the pending action.
d). In the event that a Homeowner sells or refinances his or her property while this action is pending, the escrow agent in the transaction shall be instructed to collect the amount of the maintenance fee claimed by Declarant to be owing. Upon closing of any such sale, a portion of that amount equal to a $36.00 monthly payment for every delinquent month shall be disbursed to the Declarant. The additional monthly $57.00 shall be placed in the registry of the Court under this cause number and be disbursed pursuant to order of this Court.”
Court order follows. (Hover mouse over document to zoom in/out and move to next page.)
Legal Update by Attorney David Andersson
On August 20, 2021 Homestead Homeowner Plaintiffs brought a motion for a preliminary injunction before Judge Robert E Olson.
The Plaintiffs asked the Court to “maintain the status quo ante in this case and temporarily enjoin and restrain the Declarant and its agents from threatening or engaging in collection actions to collect the disputed fees arising from the 7th Amendment until the merits of the Class Members claims have been determined.” At the hearing Plaintiffs adduced significant affidavit evidence from Class Members and appeared to have clearly established the three criteria for issuance of the injunctive relief sought. The Plaintiffs established that 1) the Class Members have clear legal or equitable rights in their property; 2) Class Members have a well grounded fear of immediate invasion of their rights; and 3) the acts of the Declarant have or will result in actual and substantial injury.
Judge Olson asked the parties to return to Court on September 10, 2021 to present the form of preliminary injunction order sought by the Plaintiffs. Prior to that Presentment of Order hearing on September 10, 2021 three important things happened.
1. Counsel for Defendants agreed with Plaintiff’s Counsel on the entry of an order resetting the maintenance fees collectable by the Declarant to the $36 per month in place prior to the implementation of the 7th Amendment on January 1, 2020.
2. Judge Olson recused himself from the case.
3. The case was assigned to Judge David Freeman, who signed the Order which was then filed on September 15, 2021 at 3:15 pm.
The filing of this Court Order represents significant progress in the resolution of the dispute between the Declarant 18 Paradise, LLP, its agents MJ Management, LLC and the Homestead Homeowner Plaintiffs and Class Members.
The important part of the Court Order is found at Paragraph 4 which is summarized below:
The parties have agreed to the following procedures regarding maintenance fees while the action is pending.
a). The Declarant may collect $36/month for current and past months.
b). The Declarant will not take adverse enforcement action against Homeowners who do not pay the $57 increase that was put into effect in 2020.
c). The Order shall not affect the amount actually owed, which shall be determined in the pending action.
d). In the event that a Homeowner sells or refinances his or her property while this action is pending, the escrow agent in the transaction shall be instructed to collect the amount of the maintenance fee claimed by Declarant to be owing. Upon closing of any such sale, a portion of that amount equal to a $36.00 monthly payment for every delinquent month shall be disbursed to the Declarant. The additional monthly $57.00 shall be placed in the registry of the Court under this cause number and be disbursed pursuant to order of this Court.
FAQ – Frequently Asked Questions
The Declarant could continue to send letters demanding payment.
The Declarant could send their delinquent account to a collections agency and with possible derogatory impact on their credit score.
The Declarant could bring a lawsuit to foreclose their lien against the Class Member’s property. However, while we are in the midst of litigation against the Declarant, we view the likelihood of such lien enforcement as very low, and are committed to defend any such actions against Class Members.
Q. Would we send in dues for 2020 and 2021?
A. The Court Order permits the Declarant to collect $36 from the date of filed Order. However, in the event a Homeowner sells their property the Declarant can assert its claim on closing that $93 per month is owed from January 2020. If it does so claim, the Escrow Agent is instructed in the Order to remit $36 per month for every delinquent payment to the Declarant. The Order then instructs the Escrow Agent to remit the disputed $57 portion of the maintenance fee to the Court to be paid out to the Homeowner when the 7th Amendment is found invalid, or to the Declarant if the 7th Amendment is validated.
Q. Do we automatically have to pay the 12% interest late fee?
A. The Court Order permits the Declarant to use any legal means to collect the $36 fee. Those include the three possible means set out above, and also application of the 12% interest. Note: 12% interest on $36 would add an additional 36 cents to the monthly fee.
Q. When does/did the order go into affect?
A. The order was signed by Judge Freeman on September 15th and affects maintenance fees from that date. So maintenance fees will revert back to $36/month for the October 2021 payment.
Q. The golf course charges a maintenance fee of $93 to my credit card each month. Will they change that back to $36 starting in October?
A. Not sure. It would be best to contact MJ Management to make sure they make the change.
Note: The provision at 4b of the Order “However, nothing in this order shall prohibit the Declarant from collecting the additional $57 than any Homeowners elect to voluntarily pay.” This means if you do not wish to voluntarily pay the disputed $57 and you have set up an automatic payment through a credit card, you MUST contact the Declarant’s agent, MJ Management, LLC to let them know your preference. If you don’t contact the Declarant’s agent, they may reasonably assume that your continued payment of the $93/month is voluntary.”