Professional Documents
Culture Documents
Additional Resources
Table of Contents
Appendix A: Additional Readings ...................................................... 1
Reading #1: A Loan At Last ............................................................... 3
Reading #2: The Bottom Line ............................................................ 8
Reading #3: $64,000 Questions ........................................................ 14
Reading #4: Self-policing ................................................................. 17
Reading #5: Healthy Wealthy and Wise .............................................. 21
Reading #6: Cashing In ................................................................... 25
Reading #7: To Collect and Serve ..................................................... 27
Reading #8: New Fannie Mae/Freddie Mac Underwriting Guidelines ........ 31
Reading #9: Dollars & Sense ............................................................ 35
Reading #10: Association Taxes - The Basics ...................................... 36
Reading #11: Article for OR CAI Newsletter ........................................ 39
Reading #12: Enron and Community Associations................................ 41
Reading #13: Questions to Ask Before Raising Assessment ................... 45
Reading #14: How Might a Community Association Answer the Five
Questions? ..................................................................................... 50
Reading #15: Seven Ways to Violate the FDCPA & How to Avoid Them ... 52
Reading #16: Fair Disclosure ............................................................ 56
Reading #17: How to Avoid an IRS Audit ............................................ 57
Reading #18: Tax Returns: Common Mistakes and How to
Avoid Them .................................................................................... 61
Reading #19: HUD Underwriting Requirements ................................... 62
Reading #20: National Reserve Study Standards of CAI........................ 69
The CAI Bookstore 77
Appendix B: M-100 Excerpts.. 83
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By Dana James
Common Ground, July/August 2003
Keeping your associations money safe is simple. You just have to make it hard to
steal. Right? Wrong. Yes, you need to beware of embezzlement and shoddy
accounting, but associations have also been sunk by bad investments and personalinjury lawsuits.
Says Common Ground contributing editor Barbara D. Wick, CPCU, ARM, AIS, CIRMS,
president of Community Association Risk Management and Insurance Consultants,
in Northfield, Illinois: One way to think about [protecting association assets] is to
ask, How many ways can you get into trouble?
As it turns out, quite a few. While industry experts concede that myriad measures
exist to protect your reserve and operating funds, most single out a few broad
areas as being especially important: rigorous internal controls on, and annual
outside analyses of, your financial activities; an established and cautious reserve
investment program; and insurance policiesincluding liability and employeedishonesty coveragebased on need rather than cost.
Inside Out
The primary responsibility of board members is to preserve and maintain the
assets of their association, says William Owens, cpa, owner of William Owens &
Co., in Carbondale, Pennsylvania. A formidable task to be sure, but association
bylaws and state and federal regulations typically spell out requirements, such as
how often your association needs to be audited and what types of investments are
allowed. Before your board makes any decisions or enacts any policies, it first
should review and understand these rules.
Internal controls. Embezzlement and fraud are typically what associations think
of when it comes to loss of funds. The first line of defense against employee
malfeasance is strong internal controls, with separation of duties as the mantra.
Anytime one person has access to all activities involving moneyapproving,
collecting, depositing moneythats too much control in one area, says Linda J.
Schiff, cmca, president of Community Advantage of Barrington Bank & Trust Co., in
Barrington, Illinois. At a bank, an officer cant walk into a vault alone. Two
different people, two different keys, are always required to unlock that vault.... An
associations monetary assets are like that bank vault.
You can implement dual control in a variety of ways and among a variety of
players. For example, if your treasurer reconciles the bank statements, you should
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Will ensure all associations address the subject of reserves and funding of a
reserve account; with very little ability to maneuver around the new 10%
funding requirement;
Will ensure a certain level of reserve funds are accumulated by all
associations; even if the 10% requirement proves to be inadequate for a
particular association, it is still far better than having no reserves;
Will result in most associations obtaining a reserve study from a professional
provider; although as far as we know the new lending guidelines do not
dictate any standards for establishing the reserve funding needs of the
community, other than the 10% rule; the reality is most associations are
likely to end up with a professionally prepared reserve study;
Will no doubt increase the overall awareness and understanding of the
concept of reserves and reserve planning for community associations;
Will increase the level of accountability of builders & developers who create
new associations in the process of developing new housing;
Will increase the level of accountability of community management
companies, association Boards, reserve study professionals and the real
estate sales industry as a whole.
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New Terminology/Wording
The new audit standards stress the importance of management and Boards
to accept responsibility for the financial statements. They also have new
terminology for the auditor (some of which was referred to above).
How does this affect the Association?
At times, we may use an engagement letter that encompasses more of the
new standards. Because the wording is new to most people, we feel that it is
best if we err on the side of too much information! In the future, we should
be able to condense the engagement to fewer pages, but until these new
standards are more accepted and known, the engagement letter will seem a
bit more imposing.
To re-iterate the terminologies have changed somewhat, but the intent and
focus of an audit has not changed, in my opinion, from what it was in the
past. Enron and World Com brought to light the fact that management was
not accepting responsibility for the financial statements and that some CPAs
were too concerned about getting and keeping the engagement, rather than
being the independent, skeptical outside party that they should have been.
These new standards just remind us of those facts, and in more detail,
govern the audit process and required documentation.
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At the time this article was written, Gil Cross was an association manager
with the Condominium & Association Management Group Inc., in
Bloomington, Minnesota.
Originally published as A Case of Need: How Might a Community Association
Answer Five Questions? Find Out by Tracking a Fictitious Association Through
the Process, Common Ground, May/June, 2000.
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Reading #15: Seven Ways to Violate the FDCPA & How to Avoid
Them
By Thomas C. Schild
Collections dont have to be a stickup. In fact, they cant benot according to
the federal Fair Debt Collection Practices Act. For the first time in nearly a
decade, the year [2002] began with a gloomy economic forecast, including
threats of recession, layoffs, and stock-market volatility. Meanwhile,
consumer debt continues to increase and annual personal bankruptcies are
expected to remain at well over one million.
With economic uncertainty on the horizon, community associations
could face a rise in the number of homeowners who fall behind on their
assessments. Now is the time to implement collection procedures that
comply with your governing documents as well as state and federal lawand
that treat your residents in a fair and equitable manner.
Rules of the Game
In addition to provisions in your governing documents and state laws
regarding liens, foreclosure, and suits, collection of association assessments
is also affect-ed by the federal Fair Debt Collection Practices Act (FDCPA).
This law requires that debt collectors who regularly collect consumer debt be
fair in dealing with debtors. Among the acts specific mandates:
1. Written and oral communications must inform a homeowner that the
communication is an attempt to collect a debt and that any information
obtained will be used for that purpose.
2. A first notice must inform homeowners that they have 30 days to dispute
the debt and request verification of the debt.
3. Collection action must stop if the homeowner disputes the debt or
requests verification in writing within the 30-day notice period.
The FDCPA also prohibits certain actions, such as:
4. Collecting any amount greater than the debt (including interest, late fees,
and cost of collection) unless permitted by the agreement creating the debt
usually your governing documentsor by state law.
5. Depositing a check post-dated by more than five days unless written
notice of intent to deposit is provided to the homeowner between three and
10 days prior to deposit. This helps your owners avoid surprises or bounced
checks.
6. Threatening or implementing non-judicial action to take or disable
property if theres no present right to possession of the propertyor theres
no present intention to take the property.
7. Communicating with a homeowner regarding a debt by postcard. This is to
ensure privacy.
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Reading #15: Seven Ways to Violate the FDCPA & How to Avoid
Them (cont.)
The consequences of attempting to collect assessments in violation of the
FDCPA can be substantial. Violations of this law are subject to damages of
$1,000 for each instance. And, a debtor may recover attorneys fees for the
cost of enforcing the FDCPA.
Debt or Not?
Although the FDCPA was first enacted in 1977, there remains some
uncertainty as to whether it applies to collection of community association
assessments. Several federal and state trial courts ruled in the mid-1990s
that assessments were not consumer debt covered by the FDCPA. These
court rulings were based on the view that the law applied only to debt
created by an extension of credit.
However, more recent court rulings have hewed toward the view that
assessments are indeed consumer debt subject to the FDCPA. This opinion
was set down by a federal appeals court for the first time in Newman v.
Boehm, Perlstein & Bright, a 1997 decision in which the U.S. Court of Appeals
for the Seventh Circuit concluded that extension of credit wasnt required for
association assessments to qualify as consumer debt. Of course, the Newman
decision is directly applicable only to community associations located in the
Seventh Circuit, which encompasses the states of Illinois, Indiana, and
Wisconsin.
A Florida appeals court, also in 1997, disregarded the Newman decision and
ruled that condominium assessments arent consumer debt. Calling the issue
of whether the FDCPA applies to collection of condominium assessments a
difficult one, the court commented: The federal courts are groping for a
principled, logical, and consistent interpretation of a statute that is poorly
drafted and whose true scope appears hopelessly lost in its circular
definitional scheme.
In the past three years [1997-2000], however, the federal appeals court for
the Tenth Circuitwhich includes the states of Colorado, Kansas, New
Mexico, Oklahoma, Utah, and Wyomingalong with federal trial courts in
Maryland, California, Arizona, and Louisiana have, like Newman, specifically
ruled that association assessments are consumer debt subject to the
requirements of the FDCPA. Plus, several other federal appeals courts, in
cases not involving association assessments, have ruled that there doesnt
have to be an extension of credit for a consumer debt to be covered by the
FDCPA.
This issue is sure to be subject to further interpretation and analysis. But, in
light of the clear trend of recent court rulings, its nearly settled that the
FDCPA does in fact apply to the collection of association assessments.
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Reading #15: Seven Ways to Violate the FDCPA & How to Avoid
Them (cont.)
Collector Editions
What does this mean for associations, their managers, and their attorneys?
The FDCPA applies only to the actions of a debt collector as defined by the
act. Generally, this means a person who is engaged in the collection of
anothers debts.
Boards. Therefore, the FDCPA doesnt apply to any action taken directly by
an association through its board of directors or officers. Where residents
have challenged a homeowner association or condominium in this area,
courts generally have ruled that the association isnt subject to the FDCPA
because its not a debt collector as defined by the act.
However, a New Jersey court ruled in 1999 that a condominium association
recorded a lien in violation of the act. And, in 1998, a federal trial court in
Maryland ruled that although a homeowner association wasnt subject to the
FDCPA, it might be liable for breach of good faith and fair dealing if it knew,
or should have known, that its attorneys collection practices violated the
FDCPA.
Attorneys. For association attorneys, its clear that where the attorney is
regularly engaged in the collection of assessments or other consumer debt,
the FDCPA does apply. Thus, unless the collection of assessments is done
only on an occasional basis and is a very small part of the attorneys law
practice, the act is binding.
Managers. What is somewhat less clear is the applicability of the act to
community association managers. The 1999 decision of a federal trial court
in Minnesota, in Alexander v. Omega Management, concluded that the FDCPA
didnt apply to the actions of a management company to collect homeowner
association assessments where the management company was responsible
for collecting assessments before they became overdue. In this case,
because the management company spent almost all of its time managing and
maintaining the property and devoted less than three percent of its
operations to collecting past-due assessments, the court ruled that the
company wasnt a debt collector as de-fined by the FDCPA.
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Reading #15: Seven Ways to Violate the FDCPA & How to Avoid
Them (cont.)
However, theres no certainty that other courts would similarly conclude that
a management company isnt a debt collector on the basis that collecting
delinquent assessments is a small portion of the management responsibility.
So long as a manager regularly engages in the collection of unpaid accounts,
the percentage of time relative to other management tasks may not be
relevant. This is especially true where management is engaged only for
financial-management services and where assessment collection makes up a
substantially greater proportion of the services provided.
Its also unclear whether managers would be exempt from complying with
the FDCPA where a delinquent account is inherited from a prior management
company or a self-managed association. Without clear guidance from the
courts, managers could be liable for not abiding by FDCPA procedures
especially in cases in which they dont have responsibility for collecting an
account prior to the debt becoming past due.
With so much still uncertain, the only sure bet seems to be that the
applicability of the FDCPA to community association assessments will
continue to evolve through litigation alleging violations of the act.
Clarification may also arrive in the form of legislative amendments,
administrative rulings, and regulations issued by the Federal Trade
Commission.
Meanwhile, with near-unanimous agreement among the courts that
community association assessments are consumer debt covered by the
FDCPA, and faced with the possibility of a $1,000 fine for each violation,
association attorneys and managers would do well to carefully follow FDCPA
procedures and requirements when collecting assessments. Its good
business senseand, not coincidentally, the fair way to treat your residents.
At the time this article was written, Thomas C. Schild was a partner in the
law firm of Silverman & Schild, LLP, in Silver Spring, Maryland.
Originally published as Your Assessment or Your Life, Common Ground,
May/June 2000.
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y
y
Copies of tax returns for the years immediately prior and subsequent
to the year under audit.
Financial books including general ledger, cash receipts, and cash
disbursements.
Minutes of all association membership and board meetings, especially
copies of any elections passed by the general membership on handling
of excess membership income.
Copies of annual budgets.
Copies of banks/brokerage account statements holding segregated
capital improvement funds (If an association claims that part of its
assessment income is a nontaxable capital contribution, these funds
should be segregated and not used for normal operating activities. The
IRS will frown upon loans from capital reserves to everyday
operating funds.)
Invoices and canceled checks to support expense deductions, including
payroll, arranged in categories as they appear on the return (i.e.,
repairs and maintenance, utilities, supplies, etc.)
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At the time this article was written, Peggy McGinnis was tax manager for Glenn
Ingram & Company Ltd., a Chicago-based accounting firm.
Originally published as Avoiding IRS Audits: How Your Association Can Avoid the
Scrutiny of the IRS, Common Ground, September/October 1995.
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Due to the declining housing market, recent turmoil in the credit markets and
residential mortgage industry, the Department of Housing and Urban
Development - better known to most of you as HUD - has enacted new
lending requirements for certain types of federally insured mortgage loan
programs.
One such rule change with far-reaching implications for condominium
associations and community management companies, is the new
underwriting requirement making it mandatory for all existing condominium
associations to maintain minimum percent funded levels in their reserve
account in order to qualify for FHA insured mortgages. An existing
association is defined by HUD as any condominium association which is not
under the control of the original declarant.
Newly constructed condominium developments are subjected to different
underwriting requirements than those required for existing associations; as
are condominium conversions which are still under the control of the original
declarant. Control of the association is said to exist until such time as the
declarant conducts a turnover meeting which officially relinquishes decisionmaking control of the associations affairs to a board of directors comprised
of homeowners within the community.
Existing Associations: When determining if an existing associations
reserve fund meets the minimum funding requirements, HUD underwriters
require a current reserve study containing a funding projection which clearly
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LEVELS OF SERVICE
The following three categories describe the various types of reserve studies,
from exhaustive to minimal.
I. Full: A reserve study in which the following five reserve study tasks are
performed:
Component inventory
Condition assessment (based upon on-site visual observations)
Life and valuation estimates
Fund status
Funding plan
II. Update, with-site-visit/on-site review: A reserve study update in
which the following five reserve study tasks are performed:
Component inventory (verification only, not quantification)
Condition assessment (based upon on-site visual observations)
Life and valuation estimates
Fund status
Funding plan
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PROFESSIONAL DESIGNATION
The following is an outline of the designation application. The RS designation
is intended for individuals, and is designed to demonstrate a basic level of
competency within the industry. The application comprises four parts:
background, experience and sample work product, references, and
continuing experience. All four parts must be completed and submitted to
apply for the credential via the Reserve Specialist (RS) Application.
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