Tag: constitution

Who prosecutes on behalf of homeowners in HOAs?

Qui Pro Domina Justitia Sequitur

(‘who prosecutes on behalf of Lady Justice?’)

 

 

Attorney Penny Koepke appeared on the Nov. 19th Arizona KPHO TV segment, “HOA Disputes,” as the demure and soft spoken attorney from the Ekmark & Ekmark law firm, and spoke in favor of the demise of due process protections for homeowners. (See http://www.kpho.com/local-video/index.html and select “HOA Disputes”). The court case discussed in this news segment was Gelb v. DFBLS (in re Sedona Casa Contenta HOA).

 

Please note that the Carpenter Hazlewood law firm, which pursued the constitutionality challenge to the state agency adjudication of HOA disputes in three cases leading up to the Gelb decision, does not appear in the KPHO segment. Partners Carpenter and Hazlewood, as well as Curtis Ekmark, are all members of the national HOA lobbying trade organization (not an educational 501(c)3 organization), Community Associations Institute, CAI. Ms. Koepke does not admit to being a member, but frequently speaks and lectures at seminars and conferences for CAI.

 

In 2004, Ms Koepke also appeared before the Arizona House FMPR committee hearing on the HOA foreclosure reform bill, HB 2402. She addressed the committee and responded to questions by the bill’s sponsor, Rep. Farnsworth, for about 21 minutes. (The audio CD is available from the Clerk’s office archives for a small fee).

 

Following this hearing, I produced a segment on HB2402 from the House audio CD. In her testimony Ms Koepke had stated that she was an ethical person of integrity who foreclosed only as a last resort upon the instructions of her HOA clients. However, she had a problem with making use of alternative methods of collecting debts as are available to all lien holder in other arenas, and saw no moral issue with completely stripping the homeowner of all his equity for a few pieces of silver. Her justification was that they were “scofflaws” who needed to be punished to deter future untimely payments. In the complete audio, you will hear the committee Chair informing Ms Koepke that such actions were “unconscionable.” I added a commentary as an addendum, which presented a few background cases and incidents in which Ms Koepke was involved. This short commentary video can be found at Foreclosures.

 

It should be apparent by now, with respect to foreclosures and due process protections in general, that a homeowner can get a better deal from the IRS than from his HOA backed by attorneys. There is no requirement in the HOA “contract” — the CC&Rs “constitution” — requiring the HOA to be fair, just, compassionate, conciliatory or charitable. Remember: “It’s the contract, stupid,” and you are not protected as one would think under state laws and constitutions.

Calif. HOA laws and community service districts

November 18, 2010

                                                                                                                                   email letter

Mr. Brian Hebert

Executive Secretary

California Law Review Commission
4000 Middlefield Road, Room D-1
Palo Alto, California 94303-4739

                                                                                       re: Study H-855

                                                                                       Memo 2010-8

                                                                                       CID Law

Dear Mr. Hebert:

 I am quite disappointed with the Commission’s continued effort to replace the Davis-Stirling using a carbon copy with revisions dealing with the minutia of CID operations.  And still refusing to recognize CIDs as de facto governments, much as Cuba is an unrecognized but de facto government.  Furthermore, CLRC has seen fit to retain the placement of these special laws for the governance of communities under the Civil Code. 

 It appears that the special interest agenda, promoted by the national lobbying trade organization, Community Associations Institute (CAI), still dominates the Commission’s thinking.  Is the Commission aware of CAI’s repudiation of the US Constitution when it wrote in its amicus brief to the NJ appellate court in Twin Rivers that, “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . ” ? Committee For A Better Twin Rivers v. Twin Rivers Homeowners Association (TRHA), Docket No. C-121-00, 2004.

Davis-Stirling and the Commission’s proposed rewrite continue to reflect the State’s exercise of “coercive power”, and “significant encouragement, either overt or covert”  with regard to CIDs.  The CID Laws portray the CID  in a “symbiotic relationship” with the state, “entwined with governmental policies,” and the state government is “entwined in [the CID’s] management or control.”  Such conditions give easy rise to declaring the CID as a state actor.  (See the summary of state action criteria as set forth by the US Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 2001).

I cannot understand why the Commission continues to permit agreements by private parties to create local, private governments that are authoritarian and that deny homeowners their rights and freedoms to which they would otherwise be entitled.  These “declarations” and CC&Rs are just that – devises to circumvent the application of constitutional protections and prohibitions with respect to local communities.  The unsuspecting public is bound to these so-called agreements by virtue of taking hold on their deed sight unseen, without ever having to read, understand or sign these CC&Rs.  The filing of these CC&Rs alone are necessary and sufficient to bind the homeowner, under servitude laws, and not contract law; where the legal-academic aristocrats offer advice that if a conflict exists between servitude law and constitutional law, servitudes law should prevail. (See Restatement Third, Property: Servitudes, § 3.1, comment h).

 It is even more disturbing when existing California law, and similar laws in other states, permit the ability to attain the advertised benefits to the greater community of California and to the local CID community under municipality laws.  In general, they are the special taxing district laws, and in California they are the District and Community Service District Codes (see Government Code, Title 6, §§ 58000 and 61000 et seq. below for the relevant excerpts).  If town hall democracy, local autonomy and the “voice of the community” are indeed the objectives of good government, then the District Code  will meet these objectives, where the replacement of Davis-Stirling is nothing more than a top-down imposition on the local community of special laws for private organizations.  The CID would be subject to the 14th Amendment as are all other public entities, and the laws of the land would indeed be equal for all people.

 I outline the simple method for accomplishing the transformation of CIDs to taxing districts in Chapter 2 of
Understanding the New America of HOA-Lands  (attached for your edification and convenience).  Chapter 3  explores ideal HOA constitutions and Chapter 4 is a lengthy discussion of the two forms of American political government:  HOAs and public entities.


 The Commission should cease and desist its current efforts to further promote the establishment of the second form of American political government, the CID, and return to supporting the principles of democratic government under the US and California Constitutions.

 

Respectfully,

George K. Staropoli

President

Citizens for Constitutional Local Government

 

References

California  Government Code Title 6,  Districts, Division 1, General, § 58000 et seq., and in particular Division 3, Community Service Districts, § 61000 et seq. as relevant.

 

§ 61001.

(a) The Legislature finds and declares all of the following:

(1) The differences among California’s communities reflect the broad diversity of the state’s population, geography, natural resources, history, and economy.

 

(b) The Legislature finds and declares that for many communities,community services districts may be any of the following:

(1) A permanent form of governance that can provide locally adequate levels of public facilities and services.

(3) A form of governance that can serve as an alternative to the incorporation of a new city.

 

(c) In enacting this division, it is the intent of the Legislature: (1) To continue a broad statutory authority for a class of limited-purpose special districts to provide a wide variety of public facilities and services.

(3) That residents, property owners, and public officials use the powers and procedures provided by the Community Services District Law to meet the diversity of the local conditions, circumstances, and resources.

 

Independent tribunal adjudication of HOA disputes in AZ held unconstitutional

An Arizona appellate court declared that the independent tribunal adjudication of HOA disputes by the Off. of Admin. Hearings was unconstitutional. After four attempts, the Arizona CAI law firm of Carpenter Hazlewood Delgado & Wood had finally obtained its long sought victory. (See Gelb v. Casa Contenta HOA, CA-CV 09-0744, Ariz. App. Div. 1, Oct. 28, 2010).

If you followed my time line in the Merrit case (2008), Carpenter was desperately seeking to get OAH declared unconstitutional.  It started with Brown v, Terravita, but no decision was made.  Next followed Waugaman where Judge Downie decided it was unconstitutional, but applied the decision only to the HOA at issue.  Along came Merrit v. Phoenix Townhouses and a decision was quickly made to take the case up on the constitutionality question, wherein Carpenter sought the Downie ruling to be applied to ALL HOAs.  However, Merrit got out of the HOA before the appeal was made, making it a moot question without a concrete issue. However, the decision was not challenged except by me, and I was snubbed and denied any further filings in the case. (See The State of Arizona will not protect buyers of HOA homes! for the case study and court filings.)

At the same time as Merrit, perhaps Carpenter realizing this serious problem of standing to sue, raises the constitutionality question in Gelb at the superior court trial level (see ¶ 6) – just in case.  This was in Aug 2008, at the time Merrit was going on.  There was really nothing new in the Gelb decision as it reads from both Cactus Wren and Hancock, like with Downie in Waugaman, except the slap at the legislature trying to get around the courts that was made by Downie is missing.

 Question:    The HOA had won at the Office of Administrative Hearings.  Gelb was contesting the decision.  Why on earth would the HOA’s attorney challenge the constitutionality of the decision, which upon a win, would invalidate the OAH decision in favor of his client, the HOA????  Who was Carpenter working for????

America Revisited – My Country Was of Thee

America Revisited

 

My country was of thee.

Now with no liberty,

whose loss I sing.

Land where your freedom died

 Constitution aside

where HOAs reside,

profiteers bring.

 

Government by the few

Is Constitution through?

Sadly I cry.

My private property

is mine no longer free.

Accepted as it be,

freedom will die. 

 

Private contracts decide

writ by a few who hide.  

It cannot be.

Aristocrats control,

the people lost their soul

gave up their noble goal,

this do I see.

 

HOAs override

democracy they hide,

of this I sing.

Legislators  agree

no evil do they see.

From sea to shining sea,

let freedom ring.

                                

                                 George K. Staropoli

                      Oct. 21, 2010

 

 

 The national homeowner rights advocacy  patriotic  song.   Recite same as America (My Country Tis  of Thee). 
  
 

 

Unrecognized, de facto government: the State of Frankland should have written CC&Rs

 
And you thought that unrecognized de facto goverments, like HOAs regimes, were a figment of my imagination.

The State of Franklin was set up in 1784 out of the westerly portion of the colonial state of North Carolina. Shortly after the War of Independence the original colonies were asked to pay for the war efforts and create a country with a sound financial policy. Since the taxing the population was difficult and cash was in short supply North Carolina ceded the western portion of the state to the federal coffers. Before the Congress could accept the offer North Carolina withdrew the offer. The citizens of the region decided that federal rule in the meantime was probably a good idea since North Carolina as a state had given this remote region little support in its fight with the Indians or protection from criminal refugees. They saw other benefits as an independent state in terms of taxation, representation and an understanding attitude toward local problems. Representatives of the North Carolina counties of Sullivan, Washington, Greene, and Davidson accepted the offer of cessation to federal territory. The state of Franklin existed for only four years to finally merge with the new state of Tennessee. 

http://www.next1000.com/family/GRUBB/sullivan.tenn.html

Attempt at statehood
  
The State of Franklin, known also as the Free Republic of Franklin or the State of Frankland (the latter being the name submitted to the Continental Congress when it considered the territory’s application for statehood[1]), was an autonomous United States territory created in 1784On May 16, 1785, a delegation submitted a petition for statehood to the Continental Congress. Seven states voted to admit what would have been the 14th federal state under the proposed name Frankland. The number of states voting in favor of statehood, however, fell short of the two-thirds majority required to admit a territory to statehood under the Articles of Confederation. Late the following month, the government again convened to address their options and to replace the vacancy at Speaker of the House, which had been held by the late William Cage. Addressing the vacancy, Joseph Hardin was elected to the Speaker of the House position. Then, in an attempt to curry favor for their cause, delegation leaders changed the proposed name to “Franklin” (after Benjamin Franklin), and even initiated a correspondence with the patriot to sway him to support their cause. Franklin politely refused, writing:

I am sensible of the honor which your Excellencey and your council do me, but being in Europe when your State was formed I am too little acquainted with the circumstances to be able to offer you anything just now that may be of importance, since everything material that regards your welfare will doubtless have occurred to yourselves. …I will endeavor to inform myself more perfectly of your affairs by inquiry and searching the records of Congress and if anything should occur to me that I think may be useful to you, you shall hear from me thereupon.[4] —Franklin’s letter to Governor John Sevier, 1787

Independent Republic

After the failed statehood attempt, the now de facto independent republic was ‘officially’ re-named Franklin.

 Up to this point, the government had been assembling at Jonesborough, mere blocks from the competing (although idle) North Carolina seat of government. Because of this, Greeneville was declared the new capital. The first legislature to meet there did so in December, 1785. At Greeneville, they finally adopted a permanent constitution, known as the “Holston Constitution”,[5] a decree which was modeled on that of North Carolina with few changes.

The new legislature made treaties with the Indian tribes in the area, opened courts, incorporated and annexed five new counties (see map below), and fixed taxes and officers’ salaries.[6] Barter was the economic system de jure, with anything in common use among the people allowed in payment to settle debts, including federal or foreign money, corn, tobacco, apple brandy, and skins (Sevier himself was often paid in deer hides). Citizens were granted a two-year reprieve on paying taxes, but this lack of currency and economic infrastructure slowed development and created confusion.

The year 1786 was the beginning of the end of the small state. Franklin was placed in a precarious position by not having been admitted to the United States. Because it shunned North Carolina’s claims of sovereignty over it, Franklin did not have the benefit of either the national army or the North Carolina militia. North Carolina offered to waive all back taxes if Franklin would reunite with its government. When this offer was rejected, North Carolina moved in troops under the leadership of Col. John Tipton and re-established its own government in the region. The two rival administrations competed side by side for many months. Loyalties were divided among local residents.

http://en.wikipedia.org/wiki/State_of_Franklin