Monday, September 19, 2011

There ought to be a law ... easier said than done

There has been much talk lately about the very significant success that the 232-unit Spa at Sunset Isles condominium community obtained in Bankruptcy Court under its Chapter 11 proceedings. This community was able to hold banks liable for surcharges incurred as the struggling community continued to maintain the property which comprised the banks' collateral.

Naturally, after hearing of the win, the first question some association leaders asked was: how do we do it? Well, the first step would be to file for Chapter 11 bankruptcy protection and many communities are not prepared to do that either because they do not meet the conditions precedent to filing, don't want to incur the costs incurred to proceed in bankrutpcy court or find the consequences of a bankruptcy to be unappealing.

The second utterance after considering this community's award and the fact that a bankruptcy prompted it, is often: there ought to be a law to do the same thing without having to file for bankruptcy first!

Great sentiment but just how easy would it be to pass such a law?

First, one would have to contend with the very strong Florida Bankers Association (FBA), the lobbying arm of Florida's banking industry. The FBA was established in 1888 (you read that correctly, it's one of the oldest trade associations in Florida), has a 39-member Board of Directors, 19 full-time employees and is composed of more than 300 banks and financial institutions. They are the epitome of a well-organized, successful machine.

Second, one would have to recognize that approximately 1/3 of Florida's legislators have strong ties to the banking industry.

Third, one would have to understand political realities and the fact that of all the bills proposed each Session, the vast majority do not become law.

This does not mean we should throw our hands up and despair of ever passing needed legislative reforms. Community association members are becoming more effective each year at doing just that. However, there might be other avenues to achieve the same goals without having to jump through the many hurdles that present themselves whenever a change in law is contemplated. Lawyers representing associations can and are making the same or similar arguments that were made in the U.S Bankruptcy Court in the Spa at Sunset Isles case to hold banks responsible for delays in foreclosing on troubled properties and the real costs to the rest of the community as a result of those lender delays.

I suspect that much of the successes we see for associations going up against banks will take place in the courts and not in the Legislature.

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