The Second Problem
The previous article in this series told the story of a Texas homeowner who lost their house at an HOA foreclosure sale without ever seeing a lawsuit — because every certified-mail notice the HOA sent came back “unclaimed.” The owner was displaced — forced out of the house after burst pipes, unaffordable repairs, and a broken car — and the process server treated the empty house as permission to serve the lawsuit by posting and certified mail, the same method that had already failed.
But there was a second defect in that case, and it’s the one that can bite homeowners even when the certified mail actually reaches them.
The HOA’s § 209.0064 notice — the letter that must be sent before an HOA can hold an owner liable for a collection agent’s fees — was grossly inadequate on its face. It didn’t itemize what was owed. It didn’t really offer a payment plan. And because of that, the notice was legally defective regardless of whether the owner ever received it.
This article is about that second failure: what a § 209.0064 notice is legally required to say, what “grossly inadequate” looks like, and why a defective collection notice means the HOA can’t legally charge you collection fees.
What the Law Requires — Line by Line
Texas Property Code § 209.0064 governs what happens before an HOA turns a delinquent owner over to a third-party collection agent. Under Subsection (b), the HOA may not hold an owner liable for the collection agent’s fees unless it first sends written notice by certified mail that does three things:
Requirement 1 — Itemize the debt (Subsection (b)(1))
The notice must “specify each delinquent amount and the total amount of the payment required to make the account current.”
Note the phrase: “each delinquent amount.” That means line-item detail — each charge, each assessment, each date, each amount. Not a lump sum. Not “miscellaneous.” Not category totals. Each amount, individually identified, plus the total needed to make the account current.
Requirement 2 — Describe the payment plan option (Subsection (b)(2))
If the association is subject to § 209.0062 (payment plans) or the dedicatory instruments require a payment plan, the notice must “describe the options the owner has to avoid having the account turned over to a collection agent, including information regarding availability of a payment plan through the association.”
The statute says describe the options. That means the owner must be told, concretely, what the payment plan is: the minimum three-month term required by § 209.0062(b), how to request it, and the general conditions. Not “you may check whether a payment plan applies to you.” The HOA has the obligation to describe the option; it doesn’t get to hand that homework to the owner.
Requirement 3 — Give a real cure period (Subsection (b)(3))
The notice must provide “a period of at least 45 days for the owner to cure the delinquency before further collection action is taken.”
This was increased from 30 to 45 days by SB 1588 in 2021. The 45-day window is supposed to be a genuine chance to fix the problem — which only works if the owner can actually tell what they owe and how they could pay it.
What “Grossly Inadequate” Looks Like in Practice
Here is how the notice in this case fell short, and why each failure matters:
Failure 1: No itemization — just arbitrary category totals
The law says “specify each delinquent amount.” The notice instead listed only totals for a few categories — “assessments,” “fees,” “interest,” or similar buckets — without identifying the individual charges, their dates, or the amounts attributable to each.
Why it matters: an owner cannot verify the debt, cannot challenge a specific charge, and cannot know whether the HOA is including something improper (like fines in a collection, or double-charged interest). The entire purpose of the itemization requirement is to let the owner see exactly what the HOA says they owe. Totals for “arbitrary categories” defeat that purpose. If you can’t audit the numbers, you can’t dispute them, and you can’t know what to pay to “make the account current.”
It’s the same principle behind the federal Fair Debt Collection Practices Act, which prohibits a debt collector from making a false, deceptive, or misleading representation about the character, amount, or legal status of a debt. The Texas Legislature built a similar transparency requirement into § 209.0064(b)(1). A notice that hides the details behind opaque totals is not transparent.
Failure 2: A payment plan “option” that was no option at all
Texas law requires HOAs with more than 14 lots to adopt written guidelines for an alternative payment schedule — the statutory minimum term is three months (§ 209.0062(b)). When an HOA is subject to that requirement, the § 209.0064 notice must describe the payment-plan option.
The notice in this case mentioned a payment plan — but only as something the owner had to go find out about. It didn’t state the terms. It didn’t say the owner qualified. It just said, in effect, “check whether a payment plan applies to you.”
That is not a “description of the options.” It’s a disclaimer. The statute requires the HOA to provide “information regarding availability of a payment plan through the association” — which means telling the owner the plan exists, its basic terms (including the three-month minimum), and how to get one. An owner facing foreclosure on a home shouldn’t have to reverse-engineer their own payment plan from a vague hint in a collections letter.
Failure 3 (in this case): the notice was returned unclaimed anyway
The collection notice never reached the owner — it came back to the HOA marked “unclaimed,” just like the earlier enforcement notice. So the HOA’s collection notice failed twice over: it was sent to an address the HOA had every reason to know wasn’t working, and its contents would have been legally inadequate even if it had been read.
The Kicker: What a Defective Notice Actually Costs the HOA
This is the part that matters for homeowners fighting back.
§ 209.0064(b) is written as a condition precedent: the HOA “may not hold an owner liable for fees of a collection agent” unless it first provides a compliant notice. A notice that fails the itemization requirement, or that fails to describe the payment-plan option, is not a compliant notice. The consequence is built into the statute:
If the notice is defective, the owner is not liable for the collection agent’s fees.
That’s real money. Collection agents typically charge fees that can run to 30% or more of the amount collected — sometimes far more than the underlying delinquency. Those fees are frequently the difference between a small dispute and a foreclosure-sized debt. If the § 209.0064 notice didn’t comply, every dollar of collection fees the HOA tried to pass on to the owner — and everything built on top of it, including the lien and the foreclosure amount — is tainted.
There’s a second built-in protection in § 209.0064(c): an owner is not liable for collection-agent fees if (1) the collection agent’s fee is contingent on amounts recovered, or (2) the HOA’s agreement with the collection agent doesn’t require the HOA to pay all the fees itself. Contingency-fee collection arrangements are common — and when they’re used, the fees can’t be passed to the owner at all.
Why This Notice Fails Even Under the Current Law’s Own Logic
Recall from Part One that the 2015 amendments (SB 1168) shifted the notice rule from “the owner receives” to “the association mails.” The policy trade-off was: give the HOA certainty, at the cost of some owner protection.
But even under that pro-HOA rule, the content of the notice was never supposed to be a formality. The Legislature kept the substance requirements in § 209.0064 intact — and then strengthened them in 2021 by extending the cure period to 45 days and in 2023 by adding the § 209.0094 pre-lien notice steps. The clear message: HOAs get the benefit of the mailing rule, but only if the notice they mail actually says what the law requires.
A notice that (1) lumps charges into unverifiable category totals and (2) gestures vaguely at a payment plan without describing it fails the substance test. It doesn’t matter whether the owner was home to sign for it — the letter, if it had been read, would not have given the owner the information the law guarantees.
What Homeowners Should Check on Any 209.0064 Notice
If you receive a collection notice from your HOA — or if you’ve already been through collections and want to know whether the HOA did it right — check these five things:
- Does it itemize? Each delinquent amount, with dates, listed separately — plus the total to make the account current. If you see only category totals or lump sums, that’s a defect.
- Does it describe the payment plan? If your HOA has more than 14 lots (or your CC&Rs require a payment plan), the notice must describe the option — including the three-month minimum term under § 209.0062(b). “Check if a plan applies to you” is not a description.
- Does it give 45 days? The cure period must be at least 45 days. A shorter period is a defect (and a hangover from pre-2021 forms that HOAs were supposed to update).
- Is the fee arrangement legitimate? If the HOA’s collection agent is paid on contingency, or the HOA isn’t paying the agent directly, the fees may not be chargeable to you at all under § 209.0064(c).
- Was the notice even sent properly? Certified mail to a stale address — especially an address where other notices have come back “unclaimed” — may not count as notice at all, under the same analysis as Part One.
If any of these fail, the collection fees are questionable — and every downstream dollar that includes those fees, including the foreclosure amount, should be scrutinized.
The Bigger Point
The two failures in this case are the bookends of the same problem.
The first notice never reached the owner — a delivery failure. The second notice wouldn’t have helped the owner even if it had — a content failure. Together they show what happens when an HOA treats statutory notices as paperwork to be filed rather than information to be delivered.
The Texas Legislature has written real requirements into § 209.0064: itemized debts, described options, a genuine cure window. Homeowners who receive a letter that fails those requirements should know that the law gives them a defense — the HOA cannot lawfully pass on collection fees it never properly notified them about.
And homeowners who lost more than fees — who lost the house — should know that the defective notice is one more link in a chain that may not have been forged legally at all.
This article is for informational purposes only and does not constitute legal advice. Statutes cited: Tex. Prop. Code §§ 209.0062, 209.0063, 209.0064, 209.0094; 15 U.S.C. § 1692 (FDCPA). This article is the second in a series on Texas HOA enforcement notices; the first addressed certified-mail delivery and the unclaimed-notice problem.