Texas Condominium HOA’s and Foreclosure
A Texas condominium HOA ( Home Owner Association ) has more power than a Texas residential HOA to foreclosure on a unit. Foreclosure is a constant source of anxiety for many condominium owners that may have exiting outstanding assessment fees. If you are a condominium owner be sure to pay timely your HOA assessment fees.
An HOA may foreclose on your condominium judicially or non-judicially through a deed of trust. Read your Texas HOA By-laws carefully. The By-laws will state what power the HOA has and the notices required before the foreclosure process may be implemented. A few key things to keep in mind regarding Condominium HOA Foreclosures are:
- A Condominium HOA may foreclose if you have outstanding assessment fees;
- A Condominium HOA may not foreclose if the debt you owe is solely based on HOA fines;
- The HOA Bylaws will dictate to whether the association can foreclose on your property judicially or non-judicially;
- After a foreclosure, you will have 90-days to redeem your property from the HOA or a third-party buyer;
- The HOA must send you notice of default for any outstanding assessment fees prior to foreclosure;
If a HOA files for a judicial foreclosure on your condominium, which is utilized as a residence, then you must be given two separate notices per Texas Property Code § 52.001. First a notice of default, which gives you 20-days to cure any outstanding debt. After the notice of default, a notice of sale must be sent 21-days prior to the foreclosure sale. Both notices are mandatory for a judicial foreclosure sale.
If the notices are not properly given or if the HOA wrongfully forecloses on your condominium there is recourse. A wrongful foreclosure cause of action if successful will entitle you to monetary damages but it will be an uphill battle to regain the property if the property is sold and the 90-day redemption period has expired. It is important to know that if a foreclosure has taken place, even if wrongful, it will be difficult to recover the property, especially if a third party purchases the unit, and takes title at the foreclosure sale. It is important to realize that suing an HOA involves inherent risks. Many HOAs are not solvent and obtaining a money judgment against the association may be worthless if the HOA has no property or other assets subject to execution.
The wisest course of action is to contact a lawyer as soon as possible if you have been subjected to a wrongful foreclosure proceeding. It is far easier to stop a foreclosure during the process than it is to regain title to your property after it has been sold.
Julian Nacol, Attorney
Nacol Law Firm P.C.
Going Into Business in Texas – Picking a Business Model
There are many business structures an entrepreneur may employ in forming his business. Each structure is somewhat different and choosing a specific business model depends on each entrepreneur’s specific needs. Below are 6 important business vehicles that any entrepreneur should explore before making their final decision to start their business.
- The Sole Proprietorship: This business structure is the most simple. The business is comprised of a single individual. There is no legal separation from the entrepreneur and his business. The proprietorship and the entrepreneur are taxed as one entity. The entrepreneur reports all income and deductible expenses for the proprietorship on his personal income tax. There is no personal protection from liability for the owner with this business structure. The entrepreneur is personally liable for anything that happens with his business and receives no protection.
- The Corporation: This business structure is more complex and offers more protection. The corporation is a separate legal entity that is created and must be recognized by the state. The corporation, unlike the sole proprietorship, gives the entrepreneur significant liability protection. The corporation itself can be sued, but the shareholder is protected. Usually small beginning entrepreneurs will create a “closely held” corporation in which all shares are owned by the entrepreneur and no stock is publicly sold. The price or this liability protection is that the corporation must pay a tax. A tax is paid on the earnings of the corporation and there is a second tax on the dividends paid to the shareholders. This is commonly referred to as the “double tax measure.” If the entrepreneur wants the benefit of liability protection, he may have to address double taxes if deciding upon a corporation, or assume all income is disposed of as salary.
- The General Partnership: This business structure is similar to the sole proprietorship, but consisting of multiple people or entities. No formal agreement is necessary, but is strongly recommended. The partnership agreement will control and describe the powers and limits of each partner. Just like the sole proprietorship, there is no personal liability protection. All partners are jointly and severally liable. This means that if the partnership acts negligently, one or all of the partners will be vulnerable to being sued. The partnership does not pay a tax. Each partner will be taxed on a personal level equal to the share that the partner owns unless the partnership agreement states otherwise. However, Texas does subject general partnerships to a franchise tax.
- The Limited Partnership: This business structure is a combination of both a general partnership and a corporation. There must be at least one general partner. The general partner will assume personal liability for the partnership, but is the only partner with most management and control of the partnership. The limited partners have no personal liability to the partnership, but are prohibited from participating in management of the partnership. The partners will be taxed on a personal level equal to the share that the partner owns as well as a franchise tax. A certificate of formation must be filed with the Secretary of State in Texas.
- The Limited Liability Partnership (LLP): This is similar to the limited partnership, but the limited partners may participate in management. At least one general partner must still be personally liable for the partnership. This is a common business structure for law firms and accounting firms. The LLP is still subject to the Texas franchise tax and the proper paperwork must be filled with the Secretary of State.
- Limited Liability Company (LLC): This business structure is another combination between a corporation and a partnership. This business structure is the most common for starting entrepreneurs because an individual may guard against personal liability as well as double taxation. The individuals that comprise the LLC pay taxes individually, similar to a partnership. All members of the LLC are allowed to participate in management and decision making. An operation agreement must be formed similar to a partnership agreement that structures how the LLC will be run. An entrepreneur must fill out the necessary paperwork and submit it to the Secretary of State in Texas to properly form an LLC. The LLC is also subject to a franchise tax in Texas.
All of these business structures have both vulnerabilities and merits. It is important to sit down with an experienced attorney and discuss your options before choosing a specific type of business formation. This is the most basic and important decision an original entrepreneur must address and he/she should be aided by a lawyer with experience in the matters and decision making.
Divorce Litigation : High Asset Divorces
High Assets Divorces in Texas can be painstaking and involve substantial time and money to properly litigate an individual’s case.
1. Original Petition and Temporary Orders
Single most important event for leverage is who files their Divorce Petition first. If you file first you are a Petitioner. A Petitioner receives a crucial benefit in litigation. A petitioner is afforded the opportunity to talk first and last in litigation, sets the tempo of the divorce, and creates the narrative of the litigation. Being a Petitioner is invaluable, thus if you have decided to file you should look to file first.
Temporary Orders are usually, absent emergency relief, the first hearing the Court will have in the case. At temporary orders the Judge will likely attempt to place a Band-Aid on all assets to insure there is not wasting of assets, custody and access of the children are determined, and payments remain the same of any separate or community property assets. Temporary spousal maintenance, exclusive use of property, and injunctions are granted at this hearing. With High Assets this hearing is pivotal in determining how litigation will continue in the future. Every Court is different but multiple additional temporary order may be filed or clarification motions.
2. Discovery Phase and Experts
The discovery phase may be cumbersome and painful. Discovery consists of multiple written questions. These include production questions (asking for documentation), interrogatories (questions require a written notarized response), admission (admit or deny questions), depositions (typically 6 hour cross examination in front of court reporter at an attorney’s office), and inventory and appraisal (sworn list of assets and values of each asset). These process are usually expensive but necessary to prove the amount of the marital estate and the characterization of property.
Experts are also employed at this stage. They are costly but necessary to prove tracing, value of fraud, or overall value of the business. These issue are likely contested, thus the battle of experts continue until the final hearing.
3. Depositions
A deposition is a formal question-and-answer session used in divorce cases to gather information under oath before trial. It typically takes place in a lawyer’s office, where one spouse (the deponent) answers questions from the opposing attorney while a court reporter records everything. The purpose of a deposition is to uncover facts, clarify disputes, and assess how a witness may testify in court. While it doesn’t happen in a courtroom, the statements made during a deposition carry legal weight and can be used as evidence later.
In high-asset divorces, depositions become even more critical because of the complex financial issues involved. Attorneys may ask detailed questions about business ownership, real estate holdings, investments, hidden assets, trusts, and even potential misuse of marital funds. If one spouse suspects the other of concealing wealth, forensic accountants or financial experts may analyze records and testify about discrepancies. The opposing attorney may also scrutinize spending habits, tax returns, and financial disclosures to ensure full transparency.
Because high-asset divorces often involve prenuptial agreements, inheritance disputes, or business valuations, preparation is crucial. A well-prepared spouse will work closely with their attorney to review financial documents and anticipate tough questions. While depositions can feel intense, remaining truthful, composed, and strategic can help protect one’s financial interests and ensure a fair resolution.
4. Mediation
Meditation may occur in the middle or toward the end of the litigation process. A good mediator may range from $2,000.00 to $3,500.00 per side. The mediation process can be difficult and last from a half to more than a full day. Some mediations go for 14 to 15 hours to obtain settlement. Though this is expensive it is still less costly than going to final trial and many outcomes may be obtain by agreement to which a Judge cannot order. The flexibility of mediation makes this process less painful and costly than attending final trial.
5. Final Trial before the Court or Jury
Final trial may be performed solely by a Judge or a Jury of 12 peers. Only 10 of 12 Jury members are needed to find in favor of either party. A Jury trial is more expensive, takes more time to prepare, and may be more risky depending on the County. A trial before the Judge is cheaper and may simplify many matters. It is important to know for every 1 hour in Cout it takes more or less 4 hours to prepare.
A jury trial with a minimum of 2 experts and multiple other fact witness should take anywhere from 4 to 7 days. A trial before the Judge for a similar case may take 2-4 days, depending how the judge runs the Court.
There are many trials and tribulations an individual will have to surpass in the Court system if they are getting a divorce and the marriage contained with high assets. It will likely be costly, painful, but necessary. Many other factors such as summary judgements or motions to exclude experts, witnesses, or exhibits may increase fees. It is important to be confident with your attorney and find a firm that has experience with higher assets cases to ensure the flow and strategy of the litigation fulfills your goals.
High Asset Divorce Attorneys in Dallas Texas
Nacol Law Firm P.C.
(972) 690-3333
What is a DTPA claim?
DTPA stands for Texas Deceptive Trade Practice Act (the “Act”), which was codified in Chapter 17 of the Texas Business and Commerce Code. This act was codified in order to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breach of warranty, and to provide efficient and economical procedures to secure that protection.” The Texas DTPA statute allows a consumer to file suit against “any person whose false, misleading, or deceptive acts, or other practices cause the consumer’s harm. As a prerequisite to filing, a consumer must give written notice to the person against whom the consumer is claiming deceptive acts at least 60 days prior to filing suit advising the person in reasonable detail of the specific complaint and amount of damages, including attorneys fees reasonably incurred.
What is a consumer?
Under the DTPA, a plaintiff must qualify as a consumer to bring a claim. “A consumer is an individual, partnership, corporation, the state of Texas, or a subdivision or agency of the state of Texas, who seeks or acquires by purchase or lease any goods or services.” In order for a consumer to establish themselves as such, they must show (1) that they sought or acquired goods or services by purchase or lease, and (2) that the goods or services form the basis of the DTPA complaint.
The Laundry List
Texas Business and Commerce Code lays out a “laundry list” of examples that constitute “false, misleading, or deceptive acts or practices” that are violations of the Act. Thirty-four items are included in this non-exclusive laundry list. For reference as examples, the first five items on that list are:
(1) passing off goods or services as those of another;
(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(4) using deceptive representations or designations of geographic origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not;
DTPA Claims Under Other Statutes
According to Dorsaneo, Texas Litigation Guide, “the number of statutes that provide that their violation, or a violation of some of their provisions, constitutes a deceptive trade practice is constantly growing.” One need not only bring a DTPA claim under the DTPA statute. Violations of other statutes may give rise to claims under the DTPA statute, however a plaintiff may not recover actual damages and penalties under the DTPA as well as damages under another statute for the same acts. This makes sense, as plaintiffs should not be allowed to “double-dip” their claims.
If you believe you may have a claim under the Deceptive Trade Practices Act, please contact us to schedule a consultation with an attorney.
Nacol Law Firm P.C.
Dallas Litigation Attorneys
Call (972) 690 -3333
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
Getting a Divorce from Your Addict Spouse
Has the time come to seriously start thinking about divorcing your Addict Spouse? After much heartbreaking soul searching has the time to break the downhill addictive spiral come for you and your family? Have you decided to stop the instability and damaging personal assaults the addictive spouse and parent has inflicted on the entire family?
Here are some possible questions you may ask yourself before making the final decision of divorcing your Addict Spouse:
- Have you acknowledged to yourself that your spouse is an addict?
- Have you acknowledged to your spouse that he/she is an addict?
- Has your life and that of your family become chaotic and unstable as a result of living with an addict?
- Have you gotten help for yourself and your spouse from an addiction expert?
- Have you attended counseling with your spouse and a knowledgeable addiction therapist?
- Have you or your family experienced serious negative consequences as a result of your spouse’s addiction?
- Have you considered or tried an intervention?
- Have you told your addict spouse that you are contemplating divorce unless he/she stops using?
- Are you now ready to leave the marriage and stop the pain?
You do not have to live in this current situation. Are you, as the non-addictive spouse, already the enabler in this relationship? Many times when the addictive spouse does seek professional help it is already too late for the marriage to survive.
If you have a family, addictive reality is very destructive to you and all family members involved. Most non-addictive family members feel very helpless in stopping the family unit from being destroyed or addressing the viability of the marriage.
(credit : National Institute on Chemical Dependency: http://nicd.inspirehealth.org/)
NACOL LAW FIRM P.C.
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization