When we hear the term “burden of proof”, many of us think of the television crime shows we all watch such as Law and Order or CSI, and how we always hear that the prosecution has to prove the defendant’s guilt “beyond a reasonable doubt”.  This “reasonable doubt” standard is the burden of proof in criminal cases.  In general, the burden of proof, or burden of persuasion, is the duty placed upon a party to prove or disprove a disputed fact.  Depending on the case and the arguments, either party can bear this burden. 

In civil cases, however, the burden of proof is a lower standard and only requires that the party who bears the burden prove or disprove a disputed fact by a preponderance of the evidence or by clear and convincing evidence.  Colorado courts define “preponderance of the evidence” as proving that it is more probably true than not, and have defined “clear and convincing evidence”  as proving that it is highly probable and there exists no serious or substantial doubt. It is up to the judge or jury hearing the case to decide whether a party has met its burden.

 


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 I have to admit, I’m not a fan but was intrigued when I discovered that Porscha Williams from the hit show ‘The Real Housewives’ was hit with a Judgment of nearly $18,000.00 for failing to pay association assessment fees and other charges. Apparently, a garnishment was authorized to attempt to collect the outstanding debt.  http://rollingout.com/tv/reality-tv-tv/porsha-williams-accused-owing-18000-homeowners-association/


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Has your association increased, or even decreased, its annual assessment fees for 2014? If so, it is important that the association follow its governing documents when providing notice of the change to all owners.   In addition to providing owners with proper notice of any change, the association should also notify its attorney. This will help to ensure that any accounts and/or payment plans that are with the attorney for collection are properly noted, and any increase is accurately accounted for and collected.  


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Homeowners often claim that they did not receive notice of their delinquency from the Association. Sometimes this assertion comes up after the Association files suit against the homeowner.   Fortunately, the “Mailbox Rule” can allow the Association to overcome this allegation.


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 I’ve recently been following a blog that has been discussing how the paying members of a homeowners association can find out who is delinquent in paying their assessments. We’ve been asked many times over the years whether it is lawful, or wise, to publish the names of owners who are not current in the payment of their assessments. It is interesting, at least to me, the scope of opinions about this topic.

I take the position that any member in the association who is not paying his or her assessments is being subsidized by those who do pay. I believed that the member who is paying is entitled to know who they were subsidizing.


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I previously blogged about the necessity of updating association collection policies and procedures as a result of recent legislative changes effective on January 1, 2014.  

In addition to preparing a revised collection policy, associations are also required to send new collection notices which provide specific information to delinquent owners. The notices must provide the

 With the influx of new foreclosures the past few years, you may have heard of homes in your community that are being sold through a ‘short sale’. While short sales are fairly common, few people understand what they are or how they should be handled by an association.  

 A short sale occurs when a lender agrees to accept less than is owed on a mortgage/Deed of Trust to permit an owner to sell their property. For example, an individual owning a home with a market value of $200,000 but with a $225,000 mortgage would not ordinarily be able to sell their home since a necessary condition of sale is to payoff the outstanding mortgage and any liens. In this example, the homeowner would need to come to closing with $25,000 in cash to allow the sale to close. Since most individuals are financially unable to sell their home under these circumstances, a solution is to convince a lender to accept a payment of $200,000 on their loan to permit the sale to go through. 


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It’s no secret that Colorado’s housing market continues to improve and according to the Denver Post, some buyers have even been forced into bidding wars over the low inventory in certain areas.   While the increase in home sales is great news for the local economy, this is also an important reminder to associations to