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How to Recover Protested Late Fees

Richard Siegler in Co-op/Condo Buyers

In the New York State case Robinson v. Mansfield Gardens Inc., decided in July 2004, plaintiff Ms. Robinson owned three co-op apartments and was seeking restitution, alleging that she paid the co-op $4,000 in improper late charges. The co-op moved for summary judgment dismissing the complaint, claiming that the voluntary payment doctrine bars the action, and also that the action was started against the wrong party. Robinson amended the complaint to name the co-op as the proper party defendant.

Pride and Prejudice

In support of its motion for summary judgment, the co-op submitted an affidavit of Juan Sinnreich, president of the company that serves as managing agent for the co-op, located at 3410-3320 Avenue H in Brooklyn. He stated that Robinson owned three co-op units in the development and that the late charges were properly assessed against her because of her history of paying certain lease charges late. He went on to state that plaintiff never served the co-op with any written notice objecting to the charges and never wrote "under protest" or "without prejudice" on any of the money orders tendered as payment for the charges.

Robinson submitted her own affidavit stating that the payments were not "voluntary," as alleged, and stated that she challenged the charges. But not tell the court when and to whom these so-called challenges were made. She also stated that she paid the charges only because the co-op threatened to evict her and sell her cooperative shares at a non-judicial foreclosure sale. She likewise did not state when and by whom these threats were made.

Finally, Robinson stated that due to provisions in the proprietary leases and the co-op's security interest in her shares, she would not have been able to challenge an eviction proceeding and a forced sale. But, she did not submit copies of the proprietary leases nor did she cite any authority supporting the above claims. Most significantly, said the court, she did not address in her affidavit why the late charges were improper.

What's Up, Doctrine?

The court said that the common-law doctrine of voluntary payment bars recovery of payments voluntarily made with full knowledge of the facts and in the absence of fraud or mistake of a material fact or law. This rule is premised on the common-sense notion that "[w]hen a party intends to resort to litigation in order to resist paying an unjust demand, that party should take its position at the time of the demand, and litigate the issue before, rather than after, payment is made." Thus, when a lessee's payments of disputed charges are made voluntarily, without protest, and neither mistake of fact or fraud was involved, the lessee is not entitled to restitution of those payments.

The co-op established that it was entitled to summary judgment dismissing the complaint by submitting proof that Robinson voluntarily paid the late charges and that neither fraud nor mistake of fact was at issue.

In the court's view, Robinson's assertions that she paid the late charges under duress were unavailing. Duress is established when the party making the claim proves that he or she was forced to act by means of a wrongful threat precluding the exercise of his or her free will. The court noted that the "[t]hreatened exercise of a legal right cannot constitute duress under any circumstances." According to the court, Robinson did not submit any proof demonstrating that the late charges were improper or that Mansfield Gardens acted unlawfully in threatening to evict her and sell her shares if payment were not forthcoming.

Finally, one does not act under duress "where there is available adequate legal remedy to redress the threatened coercion." Robinson's assertion that she had no legal remedy to thwart an eviction or a forced sale of her shares was unconvincing to the court. Certainly, she did not demonstrate that she would have been unable to obtain an injunction enjoining Mansfield Gardens from performing these acts if the late charges were improper, as she alleged. Because Robinson failed to create a triable issue of fact, the complaint was dismissed.

Most co-op shareholders do not pay late fees until there is a resolution of the non-payment issue which invariably gave rise to the late fees. If, however, you decide to pay late fees before there is a resolution of the arrears issue, you should mark the payment "paid under protest." This reservation should preserve your claim to recover such fees when there is a settlement.


Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.


Adapted from Habitat November 2004. For the complete article and more, join our Archive >>


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