The Zombie Fine: Resurrecting a 2022 Notice to Justify a 2025 Penalty

The Fifth Problem

The previous parts of this series told the story of a Texas homeowner whose house was sold at HOA foreclosure without them ever knowing a lawsuit existed: unclaimed certified mail and a process server who recommended the same failed method (Part One), a collection notice that was legally worthless even if delivered (Part Two), unsecured debt quietly converted into a secured claim (Part Three), and a board meeting noticed with an agenda so vague it identified no property (Part Four).

This part is about the violation itself — or rather, the violation that was supposed to justify everything, and the paper trail the HOA used to claim it.

The HOA produced a Sec. 209.006 notice from 2022 and used it to argue that the homeowner committed such an egregious violation that it had to be punished with a $200 per day fine under Texas Property Code Sec. 202.004.

Three things were wrong with that argument.

First, Sec. 202.004(c) does not authorize an HOA to levy a fine. It authorizes a court to assess civil damages. The HOA was using a litigation damages statute as if it were a self-help fining power.

Second, a Sec. 209.006 notice only “covers” the HOA for six months. To fine an ongoing violation across 2022, 2023, 2024, and 2025, the HOA had to send a fresh notice every six months. It did not — and it never sent the current notice required to collect the alleged fine at all.

Third, the same violation was the subject of a 2022 lawsuit the HOA settled and dismissed in February 2023. Relitigating that violation in 2025 was barred by res judicata — and using it to inflate a foreclosure was an attempt to collect, through the back door of the lien, a claim the HOA had already been paid to walk away from.

This is the zombie fine: a penalty that should have died in 2022, kept being wheeled out as if it were alive, and ended up buried inside a foreclosure amount.

What Sec. 202.004 Actually Says

Texas Property Code Sec. 202.004 governs the enforcement of restrictive covenants. Subsection (c) reads:

“A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation.”

Note the actor: a court. Not “an association may assess,” not “a board may levy.” The statute authorizes a judge — after a lawsuit, after findings — to award damages. It is a litigation remedy. It exists precisely because HOAs are not supposed to be able to self-assess $200-a-day penalties against their own members without a judge looking at it.

The HOA in this case flipped the statute. It treated Sec. 202.004(c) as if it were a fining power the association could invoke through its own enforcement letters — a $200-per-day “fine” derived from a statute that says a court may assess damages. That is the wrong actor, the wrong process, and the wrong amount.

There is an additional wrinkle: even if the HOA had been in court seeking Sec. 202.004 damages, it had already been in court — in 2022 — and had dismissed the case as part of a settlement. The window for asking a court to assess those damages had closed.

The Six-Month Rule: A 209.006 Notice Expires

Under Texas Property Code Sec. 209.006(d), the notice-and-hearing requirements do not apply to a violation if the owner was already given notice of the same violation “in the preceding six months.”

Practitioners describe this as a six-month “look-back” period. What it means in practice:

• A Sec. 209.006 notice sent on March 1, 2022 gives the HOA the ability to enforce that specific violation without a new notice only through roughly September 1, 2022.
• After six months, if the violation is ongoing, the HOA must send a fresh Sec. 209.006 notice to reset the clock — again describing the violation, again offering the cure period and hearing right.
• If the HOA does not send fresh notices, the original notice’s enforceability window expires.

An HOA practice guide states it directly: “If the owner cures the violation but repeats it 6 months AFTER the 209 Letter was sent, then another 209 letter must be sent.” And: “If the owner has no further recurrences of the violation class within six months, the violation is considered cured and the violation sequence is restarted.”

In this case, the HOA’s fining theory rested on a 2022 notice — three years before the 2025 foreclosure. To lawfully fine an ongoing violation across that span, the HOA needed a chain of fresh notices roughly every six months. It produced one stale notice instead. The alleged fine was built on a notice that had expired years earlier.

And the final piece of the notice requirement: the HOA never sent the current Sec. 209.006 notice at all — the notice that would have actually allowed it to levy the fine in the period before foreclosure. You cannot collect a fine based on a notice you never sent in the relevant window.

Res Judicata: The Claim Already Died in 2023

The HOA had previously sued the homeowner in 2022 over the same alleged violation. That suit was dismissed — settled — in February 2023.

Under Texas law, res judicata (claim preclusion) bars a party from relitigating claims arising from the same transaction that were — or could have been — resolved in a prior final judgment. A settlement and dismissal with prejudice is a final disposition on the merits for preclusion purposes. A party who settles and dismisses its claims cannot quietly revive them later when a better collection opportunity appears.

That is exactly what happened here. The violation the HOA cited in 2025 as “egregious” was the same violation it had already sued over and settled in 2023. The settlement was supposed to end it. Instead, the HOA:

1. revived the same violation to claim a Sec. 202.004 penalty,
2. attached that penalty (and related fees) to the account,
3. folded it into the lien, and
4. collected it through the foreclosure.

That is a textbook attempt to relitigate a resolved claim through a different procedural vehicle. The settlement price was supposed to buy peace — including peace from the same violation being repackaged as a $200-per-day fine later.

Why This Matters for the Foreclosure

The zombie fine was not an isolated overreach. It was load-bearing.

• The $200-per-day “fine” was part of the amount claimed in the notices, the judgment, the abstract, and the disbursement request described in Part Three.
• It was based on a 2022 notice that had expired under the six-month rule.
• It relied on a statute (Sec. 202.004) that does not authorize HOA self-help fines at all.
• It revived a claim already settled and dismissed in 2023.
• It was collected through a foreclosure — and under Sec. 209.009, a lien whose debt consists solely of fines and fine-related fees cannot be foreclosed at all.

Every one of these is independently fatal to that portion of the claim. Together they show a pattern: the HOA assembled a number — an inflated, unsupported number — and then used every procedural tool available to collect it, regardless of whether the underlying charges were lawful.

What Homeowners Should Check

1. Ask what statute authorizes the fine. If the HOA cites Sec. 202.004, read it: it authorizes a court to assess damages up to $200/day. It does not authorize the HOA to fine you on its own. The fining authority must come from the association’s own governing documents and a fining policy under Sec. 209.0061.
2. Demand the full notice chain. Ask for every Sec. 209.006 notice sent for the violation. Check the dates. If more than six months elapsed between notices (or between the last notice and the fine), the HOA’s enforcement clock has gaps — and each gap breaks the fining claim.
3. Demand a current notice. The fine must be supported by a notice sent in the relevant period — describing the violation, the amount, the cure date, and the hearing right. A stale notice from years ago is not a substitute.
4. Check for prior litigation. If the HOA ever sued you over the same violation — and especially if that suit was settled or dismissed — the claim may be barred by res judicata. Get the dismissal order and the settlement documents and check whether the dismissal was with prejudice or included a release.
5. Separate fines from assessments. Fines occupy the lowest priority under Sec. 209.0063, and a lien consisting solely of fines cannot be foreclosed (Sec. 209.009). If the HOA is lumping a stale fine into a foreclosure amount, it may be collecting debt it has no right to collect at all.

The Bigger Point

An HOA’s enforcement power is bounded by time, by process, and by the terms of its own prior settlements. A notice expires. A fine must be authorized — by the governing documents, not by a misread damages statute. A settled claim stays settled.

When an HOA ignores all three boundaries — reviving a 2022 notice, invoking a statute that does not grant it the power it is using, and collecting a claim it was already paid to release — the fine is not enforcement. It is a zombie: dead, but unwilling to stay buried.

And when that zombie fine is folded into a foreclosure, the homeowner does not just pay a disputed penalty. They lose the house.

This article is for informational purposes only and does not constitute legal advice. Statutes cited: Tex. Prop. Code Secs. 202.004, 209.006, 209.0061, 209.0063, 209.009; Tex. R. Civ. P. 162. This article is the fifth in a series on Texas HOA enforcement notices.