{"id":81,"date":"2026-09-02T05:29:51","date_gmt":"2026-09-02T05:29:51","guid":{"rendered":"https:\/\/fightmytxhoa.com\/home\/?p=81"},"modified":"2026-09-07T23:30:42","modified_gmt":"2026-09-07T23:30:42","slug":"part-seven-the-phantom-vote","status":"publish","type":"post","link":"https:\/\/fightmytxhoa.com\/home\/part-seven-the-phantom-vote\/","title":{"rendered":"The Phantom Vote: How An Amendment That Should Have Failed Can Inflate A Decade of Dues — And A Foreclosure"},"content":{"rendered":"\n\n
\n Part Seven of the HOA Foreclosure Series<\/strong> \u00b7 The previous parts documented unclaimed notices, a worthless collection letter, inflated charges, a vague board meeting agenda, a resurrected fine, CARES Act funds, and same-day notices. This part addresses the foundation under all of it: a phantom 2015 amendment vote that allegedly failed basic statutory requirements, making the dues it authorized void from the start. Series index<\/a>\n<\/div>\n\n
\n\n

The Seventh Problem<\/h2>\n\n

The previous parts of this series told the story of a Texas homeowner whose house was sold at HOA foreclosure through a cascade of statutory defects: unclaimed certified mail and a process server who knew the house was displaced (Part One); a \u00a7 209.0064 collection notice that hid the debt and offered no real payment plan (Part Two); unsecured debt quietly converted into a secured claim (Part Three); a board meeting noticed with a vague agenda that didn’t name the property (Part Four); a $200-per-day “fine” resurrected from a 2022 notice (Part Five); and federal CARES Act pandemic-relief money paid to the HOA followed by same-day notices and an intent-to-sue (Part Six).<\/p>\n\n

This part goes to the foundation under all of it: the dues themselves.<\/strong><\/p>\n\n

Around 2015, the HOA allegedly sent absentee ballots to amend the declaration so the board could raise dues by up to 10% per year without seeking homeowner approval of at least 67%. The ballots allegedly did not include an option to vote against the amendment, did not contain the statutorily-mandated disclaimer that an in-person vote supersedes an absentee ballot, and were mailed again and again \u2014 because a nonresponse was never counted as a vote against, the mailings simply continued until enough of the holdouts returned ballots for the amendment. If all of that is true, the amendment never received the legally required 67% approval and was never validly enacted.<\/p>\n\n

That matters because every dues increase the HOA has charged since 2015<\/strong> depends on the validity of that amendment. If the amendment is void, so are the inflated dues. If the dues are void, so is the lien. If the lien is void, so is the foreclosure. The phantom vote at the foundation collapses the entire chain \u2014 and a homeowner’s loss of a home over a debt that should never have been owed in the first place.<\/p>\n\n

\n\n

What the Statute Actually Requires<\/h2>\n\n

Texas Property Code Chapter 209 lays out the procedure for amendment votes and absentee ballots with unusual specificity. The reason for that specificity is the same reason for any voting rule: to make sure the result reflects what the owners actually wanted.<\/p>\n\n

1. The 67% threshold (Tex. Prop. Code \u00a7 209.0041(h)).<\/h3>\n\n
“Except as provided by Subsection (h-1) or (h-2), a declaration may be amended only by a vote of 67 percent<\/strong> of the total votes allocated to property owners entitled to vote on the amendment of the declaration…”<\/blockquote>\n\n

A supermajority. The statute presumes amendments are significant \u2014 they change the contract that binds every owner \u2014 and demands a substantial showing of consent.<\/p>\n\n

2. The “for or against” requirement (\u00a7 209.00592(c)(1)).<\/h3>\n\n

When a vote is conducted by absentee ballot, the solicitation must include:<\/p>\n\n

“…an absentee ballot that contains each proposed action and provides an opportunity to vote for or against each proposed action<\/strong>“<\/blockquote>\n\n

Read that carefully. The ballot must give the owner a real choice \u2014 yes or<\/strong> no. A ballot that only allows voting in favor is not a ballot under the statute. It is a petition masquerading as an election.<\/p>\n\n

3. The mandatory disclaimer (\u00a7 209.00592(c)(3)).<\/h3>\n\n

The solicitation must contain the following language verbatim:<\/p>\n\n

“By casting your vote via absentee ballot you will forgo the opportunity to consider and vote on any action from the floor on these proposals, if a meeting is held. This means that if there are amendments to these proposals your votes will not be counted on the final vote on these measures. If you desire to retain this ability, please attend any meeting in person. You may submit an absentee ballot and later choose to attend any meeting in person, in which case any in-person vote will prevail.”<\/blockquote>\n\n

That language is not optional. It is not a suggestion. It is the statutory floor for an absentee-ballot solicitation, set by the Texas Legislature precisely because of the kinds of abuses that occurred in this case. Without it, an owner may sign what they think is a vote in favor, only to discover \u2014 too late \u2014 that an in-person vote at a meeting could have changed the outcome, but they never knew they had that option.<\/p>\n\n

4. The 20-day notice (\u00a7 209.0056(a-1)).<\/h3>\n\n
“For an election or vote of owners not taken at a meeting, the property owners’ association shall give notice of the election or vote to all owners entitled to vote on any matter under consideration. The notice shall be given not later than the 20th day before the latest date on which a ballot may be submitted to be counted.”<\/blockquote>\n\n

Section (b) is even more pointed: “This section supersedes any contrary requirement in a dedicatory instrument.”<\/strong> The CC&Rs cannot waive these notice rules.<\/p>\n\n

5. The in-person supersedes absentee rule (\u00a7 209.00592(b)(2)).<\/h3>\n\n
“any vote cast at a meeting by a property owner supersedes any vote submitted by absentee or electronic ballot previously submitted<\/strong> for that proposal”<\/blockquote>\n\n

If a vote was conducted both by absentee ballot and at a meeting, the in-person votes control. An absentee ballot that did not include the mandatory disclaimer telling owners they could change their minds by attending the meeting denies owners that statutory right.<\/p>\n\n

\n\n

What Allegedly Happened<\/h2>\n\n

If the allegations in this case are true, every one of those five requirements was violated in 2015:<\/p>\n\n

1. The ballot allegedly had no “against” option.<\/h3>\n

A solicitation that lets owners only vote “yes” \u2014 or treats a nonresponse as a “yes” \u2014 fails \u00a7 209.00592(c)(1). It is not an election. It is the appearance of one, with the outcome predetermined.<\/p>\n\n

2. The ballot allegedly omitted the mandatory disclaimer.<\/h3>\n

Without the verbatim language required by \u00a7 209.00592(c)(3), owners were not informed that an in-person vote could have superseded their absentee ballot. Owners who might have attended the meeting to vote against the amendment had no statutory notice of that right.<\/p>\n\n

3. The ballots were mailed again and again \u2014 until the amendment got the votes it needed.<\/h3>\n

The re-mailings were not an accounting problem; they were the mechanism. Because the ballot offered no way to vote against the amendment (the first defect above), an owner’s only way to oppose it was to withhold the ballot \u2014 and a withheld ballot was not counted as a vote against. Silence never counted. That made every new mailing a free option for the amendment: no round of silence ever became final disapproval, and there was no downside to sending another. An election that keeps soliciting until it gets the result it needs is not an election; it is a solicitation loop.<\/p>\n

Who received the re-mailings determines only what else the loop proves. If \u2014 as the homeowner, then a member of the board, recalls \u2014 the repeat mailings were aimed at the owners whose ballots had not come back, then the association knew exactly who had voted and kept soliciting the known holdouts until enough gave up and returned a ballot for the amendment: a solicitation loop aimed at the losers, and a ballot-secrecy problem on top of it. If instead every owner received each mailing, the ratchet worked the same way \u2014 but someone still had to know, round by round, where the count stood, because the management company was able to tell the board it had the votes. That means returned ballots were being tallied against the owner list while the solicitation was still open. Either way, the association was tracking the vote as it came in. And either way, the statute provides no procedure for any of it: no re-solicitation rule, no point at which opposition becomes final, and no answer for which ballot controls if an owner returned more than one.<\/p>\n\n

4. The 67% threshold was supposedly met \u2014 but only by counting votes that should not have been counted.<\/h3>\n

When invalid absentee ballots are excluded, the actual valid vote may fall well short of 67%. The amendment never received the consent the statute requires.<\/p>\n\n

5. The 20-day notice may not have been given.<\/h3>\n

Section 209.0056(b) makes the notice requirement non-waivable. A shorter notice window, or no notice, voids the procedure.<\/p>\n\n

If even one of these failures is provable, the 2015 amendment was not lawfully enacted. If the amendment is void, the dues increases it authorized are unauthorized.<\/p>\n\n

\n\n

The Board Knew How Hard 67% Would Be<\/h2>\n\n

One more fact belongs with these defects, because it changes what they look like. According to the homeowner \u2014 who served on the board at the time and heard it firsthand \u2014 the board discussed the amendment at its monthly meetings and was candid about the arithmetic: 67% approval was going to be extremely difficult to achieve. Then the management company, which ran the balloting, reported that it had the votes. The board was pleased. What nobody at that table apparently asked was how a threshold everyone agreed was nearly out of reach had suddenly been cleared.<\/p>\n\n

That matters for two reasons. First, a result that surprises its own supporters invites scrutiny \u2014 and the five defects above are what that scrutiny finds: no against option, no disclaimer, repeat mailings, a cancelled in-person vote. Second, the board’s own knowledge defeats the innocent-default defense. An association that knew the amendment was struggling, accepted a count that said otherwise, and never asked how, has not been misled by its vendor \u2014 it has ratified the method. And in litigation, that knowledge has a source: a homeowner who sat on the board heard these statements firsthand, and board members’ statements at board meetings about association business are the association’s own admissions.<\/p>\n\n

It also identifies who actually ran the vote. The ballots, the mailings, and the tally were the management company’s work \u2014 the same for-profit management company that Part Fourteen shows is reachable under the consumer statutes the association itself may evade.<\/p>\n\n

\n\n

The Cascade: Void Amendment \u2192 Void Dues \u2192 Void Lien \u2192 Void Foreclosure<\/h2>\n\n

This is what makes the phantom-vote theory so powerful. It doesn’t just affect one dues increase. It unwinds a decade.<\/p>\n\n

Step 1 \u2014 The amendment is void.<\/strong> A declaration amendment that fails the 67% threshold, fails the “for or against” requirement, or fails the disclaimer requirement is not validly enacted. Under long-standing Texas contract and property law, an amendment procured by fraud or that fails to satisfy statutory formalities is void.<\/p>\n\n

Step 2 \u2014 The dues increases are unauthorized.<\/strong> Every “up to 10% per year” increase that was authorized by the phantom amendment is itself unauthorized. The HOA was collecting amounts it had no authority to charge. From 2015 through 2022 (when the Texas agency paid via CARES Act), the assessment ledger was inflated by an amendment that never lawfully existed.<\/p>\n\n

Step 3 \u2014 The “delinquency” is fictitious.<\/strong> When the 2022 lawsuit was filed and the 2025 foreclosure was pursued, the alleged delinquency was calculated against these inflated dues. The amount the homeowner supposedly owed was \u2014 to the extent of the invalid increases \u2014 money the HOA was never entitled to collect.<\/p>\n\n

Step 4 \u2014 The lien is void or voidable.<\/strong> A lien securing dues that were never lawfully owed is not a valid lien. Even where the surrounding statutory procedures were followed (or alleged to be followed), a lien resting on a fraudulent dues calculation can be challenged directly.<\/p>\n\n

Step 5 \u2014 The foreclosure is wrongful.<\/strong> A foreclosure sale based on a void or inflated lien is a wrongful foreclosure. The homeowner has a cause of action; the buyer at the sale (and the HOA) may have liability.<\/p>\n\n

The cascade matters because it does not depend on whether the homeowner personally received the certified mail, or whether the board meeting was properly noticed, or whether the \u00a7 209.0064 letter itemized the debt. Even if every procedural defense in Parts One through Six failed, the phantom-vote challenge remains: the dues were never lawfully owed, so the foreclosure was never lawfully justified.<\/strong><\/p>\n\n

\n\n

Why This Argument Works Even If You Didn’t Vote<\/h2>\n\n

Homeowners sometimes assume they cannot challenge an amendment vote they did not participate in. The opposite is true.<\/p>\n\n

You do not need to have voted against the amendment. The question is not whether you personally objected \u2014 it is whether the amendment was validly enacted in the first place. If the statutory procedures for the vote were violated, the amendment is void as to everyone<\/em>, including owners who never received a ballot or never responded.<\/p>\n\n

You do not need to have been “harmed” in a traditional sense. Statutory procedural violations in an amendment vote are structural defects \u2014 they invalidate the vote itself, not just the impact on a particular owner. That’s why the Legislature wrote specific requirements (67% threshold, “for or against” option, mandatory disclaimer) and made them non-waivable (\u00a7 209.0056(b)).<\/p>\n\n

\n\n

What Homeowners Should Check<\/h2>\n\n

If your HOA’s dues have increased over the past decade \u2014 or if you are facing a foreclosure based on accumulated delinquencies \u2014 go back to the source.<\/p>\n\n

    \n
  1. Check the amendment.<\/strong> Request the dedicatory instrument amendments and the dedicatory instrument history from the HOA under \u00a7 209.005. Find the amendment that authorized the dues increase. Read the text. What does it actually say?<\/li>\n
  2. Check the voting records.<\/strong> Request the absentee ballot solicitations, the returned ballots, and the meeting minutes for the vote. Was a 20-day notice given? Did the absentee ballot solicitation include an option to vote “against”? Did it include the mandatory disclaimer language from \u00a7 209.00592(c)(3)? Were multiple ballots sent to the same owners? And demand the mailing list itself \u2014 how many ballots were mailed to each owner, and on what dates. That document is what proves the solicitation loop: re-mailings aimed at the owners whose ballots had not come back. Ask also who counted the ballots, and demand the tally \u2014 when did the count first reach 67%, and when did the management company first tell the board it had the votes?<\/li>\n
  3. Recalculate the vote.<\/strong> Subtract any ballots that did not include a “for or against” option, that were sent without the disclaimer, that were counted without proper notice, or that were counted more than once. Did the remaining valid votes still reach the 67% threshold?<\/li>\n
  4. Trace the dues back.<\/strong> If the amendment authorizing the increase is void, the increases it authorized are void. Trace each increase to its authorizing amendment. Was each one properly approved? Were any chained off a foundational amendment that itself failed?<\/li>\n
  5. Ask for an accounting.<\/strong> Under \u00a7 209.005, demand a complete accounting of all charges, payments, and applications. If the CARES Act payment (Part Six) was applied as a partial payment while invalid dues kept accruing, the priority-of-payments rule under \u00a7 209.0063 was likely violated.<\/li>\n
  6. Consider a declaratory judgment action.<\/strong> A suit to declare an amendment void can be brought directly. Texas courts have long recognized that an improperly-enacted amendment to a declaration is not entitled to enforcement. The 4-year statute of limitations for a direct attack generally runs from the date the amendment was enacted \u2014 but the timeline can extend when fraud is involved, and may not apply to owners who did not receive proper notice.<\/li>\n<\/ol>\n\n
    \n\n

    The Bigger Point<\/h2>\n\n

    Every HOA lien, every foreclosure, every “delinquent assessment” rests on a foundation: the declaration, the amendments, the dues the HOA was actually authorized to charge. If that foundation is rotten \u2014 if an amendment was passed through ballots that didn’t give owners a real choice, didn’t include mandatory warnings, didn’t meet the 67% threshold, or was voted on in a meeting that was improperly cancelled \u2014 then every dollar the HOA collected under that amendment is in question. And every lien, every collection action, and every foreclosure built on those unauthorized dues is itself suspect.<\/p>\n\n

    When an HOA cannot show that its amendment vote followed the law, the question is not whether the homeowner should have paid sooner or attended more meetings or kept up with their mail. The question is whether the HOA ever had the legal authority to demand the money it took the home for.<\/p>\n\n

    \n\n\n
    \n
    \n \u2190 Part One<\/a>
    \n     \u2190 Part Two<\/a>
    \n     \u2190 Part Three<\/a>
    \n     \u2190 Part Four<\/a>\n <\/div>\n
    \n Part Seven<\/strong>
    \n The Phantom Vote<\/span>
    \n     Next: Part Eight \u2192<\/a>\n <\/div>\n<\/div>\n\n

    \n This article is for informational purposes only and does not constitute legal advice. Statutes cited: Tex. Prop. Code \u00a7\u00a7 209.0041, 209.0056, 209.0058, 209.00592. This article is the seventh in a series on Texas HOA enforcement notices. Previous parts addressed certified-mail delivery, defective collection notices, lien inflation, and board meeting notice issues.<\/em>\n<\/p>\n","protected":false},"excerpt":{"rendered":"

    Around 2015, the HOA sent absentee ballots for a dues increase amendment. Allegedly, the ballots offered no “against” option, omitted a mandatory disclaimer, and the in-person vote was cancelled. If true, every dues increase since has been unauthorized.<\/p>\n","protected":false},"author":1,"featured_media":82,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"pagelayer_contact_templates":[],"_pagelayer_content":"","footnotes":""},"categories":[72,74,6,7,73],"tags":[75,78,81,82,76,80,77,79,84,85,83],"class_list":["post-81","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-amendments","category-dues-increases","category-hoa-foreclosure-series","category-texas-property-code","category-voting","tag--209-0041","tag--209-0056","tag--209-0058","tag--209-00592","tag-67-percent","tag-absentee-ballot","tag-amendment-vote","tag-dues","tag-foreclosure","tag-phantom-vote","tag-void-amendment"],"_links":{"self":[{"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/posts\/81","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/comments?post=81"}],"version-history":[{"count":3,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/posts\/81\/revisions"}],"predecessor-version":[{"id":117,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/posts\/81\/revisions\/117"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/media\/82"}],"wp:attachment":[{"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/media?parent=81"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/categories?post=81"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fightmytxhoa.com\/home\/wp-json\/wp\/v2\/tags?post=81"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}