Yesterday the US Supreme Court denied hearing an appeal from the 9th circuit’s homeless decision that held “it was ‘cruel and unusual punishment’ to enforce rules that stop homeless people from camping in public places when they have no place else to go.”[1] The Boise, ID lawsuit was based on 42 USC 1983 – violation of civil rights – alleging a violation of the 8th Amendment prohibition on cruel and unusual punishment.
As many of you are aware I’ve also considered HOA foreclosure a violation of the 8th Amendment against cruel and unusual punishment.[2]
“The Tennessee appellate court in Brooks found ‘that the foreclosure sale price shocked the conscience of the court.’ A home valued at over $321,000 was foreclosed for just $12,800 of which $6,734, more than half, went directly into the attorney’s hands. That’s more than 25 times the “damages” to the HOA.”
This application of the 8th Amendment can be easily extended to HOA foreclosures for the very same failing to provide another place to go. Many foreclosures create this unconscionable state of affairs that is only meaningful against homeowners who have a high equity in their home, otherwise it doesn’t pay for the HOA to foreclose. But they still foreclose! Why? As a punishment and they have been granted this special right allowed only for banks and other hard-money lenders.
It is well beyond the time for homeowners to make use of the powerful violation of the constitution arguments against their HOA! But, get a lawyer who as an appropriate understanding of constitutional law, and not just a real estate or HOA lawyer.
We can easily forgive a child who is afraid of the dark;
the real tragedy of life is when men are afraid of the light.
(Plato).
References
[1] Martin et al v. City of Boise, 920 F.3d 584 (8th Cir. 2019).
[2] “Draconian punishment and intimidation, No. 8”, George K. Staropoli, HOA Common Sense: rejecting private government (2013). (Available on Amazon); ”HOA foreclosures and unclean hands,” George K. Staropoli, HOA Constitutional Government (2014).
HOA Constitutional Government 
I fought the fight as long and as hard as I desired. My HOA violated their contract for fourteen years. Never provided the maintenance outlined in the declarations. When I bought in 2005 the HOA had failed to have the annual audits performed on $10,000,000. Yes, TEN MILLION DOLLARS remains unaccounted for until today. Due to the failure to maintain the exterior the interior of my home sustained massive and costly damages. I refused to pay dues to the breach of contract. The HOA sued for the dues and won a summary judgement to foreclose and take my home. Two weeks ago they sold the house on the courthouse steps. My total loss is $500K. The remedy to correct the latest problem was $10K. I put the $10K into my attorney’s escrow account after we reached an agreement in mediation. The HOA then denied we had reached that agreeement even with the mediator being a sitting judge on the county bench! And he told them they HAD made the agreement. It didn’t matter. They hired four attorneys and seven paralegals and spent $125K in legal bills. They asked the judge to order me to pay that but he felt that was excessive (ah, ya think?) but awarded them $52K after he denied me a jury trial (we had 4 trial dates and prepared for each one of those…costing me big legal bills) and he denied me an affirmative defense. That’s right, I had no opportunity to present my side of the story. After doing my calculations…it is very clear the HOA spent a bundle in legal bills to recover a small percentage. They wasted the HOA dues (insurance was not involved because they’ve had the policy cancelled twice in three years) in their efforts to destroy me. It was pure hatred that was driving the HOA board and their attorneys. All because I stood up and told the truth about the corruption in the HOA and refused to pay for services not being rendered.
The judge failed to mention he was the past president of his HOA. His wife was the current president of his HOA. And the property manager involved was the same for his HOA as mine. CAI member property manager and attorney. No surprise. He refused to recuse himself and the chief judge refused to make him recuse himself. This whole thing reeks of corruption!
I live on social security. Will never own a home again. Everything I worked for to live on in my retirment years is gone. And it’s all legal for the HOA to do what they did. Nobody in their right mind should ever buy into an HOA! If this could happen to me it could happen to anyone!
You’re 100% correct, George. HOAs should not have this level of power and access to unlimited amounts of money…other people’s money at that!