Foth & Foth

02/21/2022

Condolences to the family of Arthur. May he rest in peace.

Livestream Link for the Mass of Arthur Foth Arthur F. Foth, 80, of Medina, passed away peacefully, February 9, 2022, in Berea. He was born April 23, 1941, in Cleveland to the late Arthur and Irene nee Lazar Foth. Art was an accomplished attorney for over 40 years and founded

04/28/2021

Cleveland area law firm seeking an associate attorney. Applicant must be hard working, service oriented attorney willing to work flexible hours. Background in foreclosure, evictions and real estate preferred. Candidate must be admitted to practice law in the State of Ohio and Federal courts. Strong research and writing skills a requirement.

If you have any questions or if there is any other information you need to complete this process, please call (440) 846-0000 extension 228 and ask for Francine Ryan.

10/23/2020

HOA CASE ALERT: Last month, the United States District Court for the Southern District of Ohio weighed in on a developing conversation concerning association liens for homeowners associations in the State.

In the case, plaintiff purchased a lot within the association at foreclosure sale and believed the purchase was clear of any association liens despite a lien being of record.

The court disagreed, noting that the foreclosure sale did not extinguish the association lien under the facts presented. Moreover, the court observed that the owner failed to bring a discharge of lien action as required by Ohio’s Planned Community Act (PCA) which necessitated that the court decline to determine the issue of lien validity.

Accordingly, the decision becomes the third federal decision since July 2019 analyzing the interplay between association lien rights and individual owners’ ability to invalidate liens under Ohio’s PCA. Fortunately for Ohio associations, each decision has upheld the need for owners to bring a procedurally proper challenge. Such a requirement helps associations make more confident decisions when moving forward with collection efforts—and less legal expense in the long run.

09/24/2020

Uncertain how to celebrate Halloween in your association?

Within the last week both the Ohio Department of Health and the CDC have released guidance and recommendations concerning fall holidays.

Board members and owners alike are encouraged to consult these materials so fall fun can continue!

09/10/2020

CONDO CASE ALERT: Informative opinion issued earlier this week upholding a trial court judgment in favor of a Franklin County association.

The case involved owners who initiated suit asserting that the association failed to investigate possible siding damage and failed to perform foundation repairs.

Within the opinion, the appellate court observed a failure on the part of the owners to demonstrate an ongoing harm or resulting damages. Here, the court found that the possible siding damage was speculative while there was no evidence of actual foundation damage. Accordingly, judgment in the association’s favor was appropriate.

An important takeaway from this decision is the court’s reliance on the testimony of the association’s board member and the structural engineer who consulted with the association even before litigation commenced. Boards are always encouraged to consult with professionals when maintenance issues arise.

07/21/2020

Check out our Quarter 3 Newsletter: COVID - 19 Edition. Copies will be headed to our association boards this week!

05/18/2020

HOA CASE ALERT: Last week the Ninth District Court of Appeals affirmed a municipal court’s award of approximately $11,500 in attorneys fees incurred as the HOA pursued an owner to judgment for approximately $2,500 in unpaid assessments.

Takeaway: owners who are tempted to ignore their association assessments because the amount owed is thought “too small” or “de minimis” should note that Ohio’s public policy supports an award based on the reasonable value of attorneys fees for work performed, which may not directly correlate to the amount of unpaid assessments owed.

This is an important policy that helps protect associations and all other owners within the association who might otherwise have to subsidize collection efforts against owners attempting to frustrate—or otherwise failing to observe—the association’s purpose.

05/18/2020

Associations and their boards should be doing their best to remain up-to-date on obligations that may be tied to swimming pool operators.

Ohio Department of Health guidelines form a valuable source of information and influence that will assist boards in modifying policies.

With Memorial Day quickly approaching, make sure your association has a clear awareness of what is expected of (1) the pool operator(s), (2) the pool users, and (3) what the protocol should be in the event of a confirmed COVID—19 case.

05/04/2020

CONDO CASE ALERT: A thought-provoking Memorandum of Opinion (not for publication) issued out of the Northern District bankruptcy court after a debtor owner objected to the proof of claim filed by the condominium association in her Chapter 13 petition.

In short, the owner attempted to avoid the securitization of approximately $8k in attorneys fees and subsequently accruing maintenance fees that went unpaid and were committed to a foreclosure judgment.

The bankruptcy court distinguished and limited influential Eighth District (state-based) cases that interpreted Chapter 5311 to prevent certificates of lien from reaching after-acquired debts.

In so doing, the bankruptcy court observed that trial courts have the right to include post-lien amounts in its foreclosure judgment that, resultingly, will define the association’s modified interest.

Although the opinion is not precedential in effect, it represents continuing conversation within the courts geared at feathering out the unique treatment of condominium liens (as distinct from HOA “continuing liens”) while encouraging cautious application of 5311’s language to prevent construction that ends up harming associations.

04/28/2020

HOA CASE ALERT: A very timely opinion issued last week where a homeowners association saw its written denial of an owner’s solar panel installation application invalidated.

As many associations try to take advantage of “actions without a meeting”, it remains imperative that corporate formalities are followed. With any action without a meeting the general requirement is that a board fulfill:

(1) the unanimity requirement,
(2) the signed writing requirement, and
(3) the memorialization requirement.

These general requirements are derived from Ohio non-profit corporate law, though individual association documents may be even more stringent.

In the case mentioned, the association saw the trial court’s judgment reversed and the reviewing court indicated that the owner could proceed with the solar panel installation because the attempted disapproval in this case was ineffective.

Specific findings included the determination that “the mere exchange of emails” does not satisfy the signed writing requirement and, also, that there is no “good faith” exception that will allow unauthorized corporate action to be ratified through the courts.

Please make sure that your board is familiar with the requirements so that board actions maintain their legitimacy.

04/17/2020

HOA CASE ALERT: Recent Tenth District decision results in HOA being awarded $17k+ in attorneys fees after Court finds owner who initiated a small claims action against the association over a $122.50 towing charge did so frivolously.

The Court in awarding the HOA judgment observed that the association lawfully restricted the owner’s parking on portions of common property. Further, the Court noted that the owner’s conduct appeared to demonstrate ongoing efforts to disturb the peace within the association and to harass the board over legitimate policies.