While Arizona CAI lobbyists and HOA attorneys question the constitutionality of ALJ adjudication of HOA problems (see questions), the Legislature responded with a bill to reign in their attempts to thwart justice based on $$$$$. There are many obvious instances on the OAH audiotape records, available to the public, where the harassment, delay and frivolous claims are filed to drive away homeowners from filing complaints. Suits brought in civil court must meet the R. Civ. P. 11(a) test, found in all state rules of court, that reads (emphasis added):
The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
First year statistics of OAH decisions showed a surprising 42% victory by mostly Pro Per homeowners against the HOA and its attorneys. See stats.
Arizona bill, SB1162 attempts to reign in HOA board and attorney harassment and SLAPP suits at OAH. It will permit attorney fees in the event the other party
1. brought or defended a claim without substantial justification.
2. brought or defended a claim solely or primarily for delay or harassment.
3. Unreasonably expanded or delayed the proceeding.
4. Engaged in abuse of discovery.
d. if THE aDMINISTRATIVE LAW JUDGE OR COURT MAKES A FINDING PURSUANT TO SUBSECTION C OF THIS SECTION, The ADMINISTRATIVE LAW JUDGE OR COURT may allocate the payment of attorney fees among the offending attorneys and parties, jointly or severally, and may assess separate amounts against an offending attorney or party.
This important bill also restricts ex post facto amendments with the wording, “An amendment to the community documents does not apply to any court or administrative action filed before the amendment is adopted.”
This past Saturday I emailed all the Representatives to urge moving this bill out of the Rules Committee where it sat for an unusual period of time, about 2 weeks. On Tuesday, it was passed out of Rules. It is scheduled to be heard in COW on Monday where the reps get to debate it, before a formal vote on passage out of the House.
HOA Constitutional Government 