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A Better Partnership
July 08, 2015

COA awards attorney fees to summer resort based on bylaws provision contemplating both lien and legal action to collect delinquent dues

In Great Lakes Shores, Inc. v. Bartley, No. 320913, the Court of Appeals awarded plaintiff, a summer resort, attorney fees associated with the legal action to recover delinquent dues from defendant, a lot owner, based on a bylaws provision contemplating both a lien and legal action to collect delinquent dues.  Plaintiff alleged that defendant paid her dues from 2004 through 2009, but then stopped paying.  In December 2012, plaintiff recorded a lien for the unpaid dues and filed suit.  Plaintiff moved for summary disposition, seeking $400 in unpaid dues, $40 in late fees, $574.40 in court costs, and $6,007.29 in attorney fees.  The trial court granted plaintiff’s motion because defendant failed to provide any evidence to contradict plaintiff’s evidence showing that defendant had indeed received invoices for the dues, but declined to award plaintiff attorney fees.  Plaintiff appealed.
 
The Court of Appeals concluded that the bylaws entitled plaintiff to its attorney fees.  The relevant provision stated:
 
All annual dues and/or special assessments levied against any or all members not paid by August 31st each year shall become a lien upon the property of the delinquent member and such delinquencies may be enforced by Court action. All costs of such action shall be assessed to the member and become part of said lien, including by [sic] not limited to actual attorney fees.
 
Rejecting defendant’s argument that attorney fees were only recoverable if plaintiff foreclosed its lien, the Court concluded that the provision contemplates permitting both a lien and a separate action to collect delinquent dues.  In light of its reversal with respect to attorney fees, the Court of Appeals also directed the trial court to include in the award $40 in late fees even though plaintiff failed to include such fees in it proposed order adopted below

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