Tag: due process

HOA Syndrome reaction: you knew what you were getting into

Professor Gary Solomon held his seminar describing a collection of physical and emotional disorders collective named, the HOA Syndrome.i In the Las Vegas FOX5 News coverage of the eventii, Solomon said “dealing with a homeowners association is enough to cause physical and emotional harm, including stress, anger, fear and paranoia.” He added, “Harass the neighbors enough, keep them in line and set them up with fine after fine after fine.”

It may be a surprie to some, but this is not new stuff. Viewing these same symptoms from a legal standpoint, Donie Vanitizian, JD, wrote about Post Traumatic Stress Disorder (PTSD) in her 2002 book, Villa Appalling!iii Part II of this 519 page book is devoted to these issues and the causes of these issues. Examples include:

“Toxic Turmoil – “Because there is no viable means for homeowners to express their frustrations with the conditions under which they are forced to live, they are plagued with acute stress. . . . With no government agency interested in their plight or the problems created by these developments in general, homeowners are left to their own devices.” (p. 225).

 Vanitizian goes on to say that, Homeowners very foolishly trust that board members automatically have a ‘conscience.’ They don’t. Homeowners blindly look to the association as a ‘figurehead’ that somehow oversees that justice and truth prevail. It doesn’t.” (p. 233).

As expected, denials came from association managers who are at the heart of the HOA Syndrome, as HOA boards defer the operation of the HOA to these persons. In a statement by one manager, speaking about the homeowners, we see the truth of the matter when the manager states, “Homeowners shouldn’t complain because they knew what they were buying into. You know what the expectations are.”  This a frank admission of the oppression and intimidation caused by HOAs that produce anxiety, fear, emotional stress, and the obvious loss of one’s home and financial conditions. Does this person really believe that Americans are demented and masochistic, relishing injuries to be inflicted upon them? And freely, openly, and willing accept these conditions while giving their home as collateral to the survival of the HOA, and forgoing any semblance of due process protections for the greater glory of the HOA? Really!

I ask this manager and all managers, especially those trained by the national HOA “educator” Community Associations Institute, CAI, “How come you by this falsehood?” This attitude reflects a “You’re damn right we consider the harsh, unjust strict enforcement of arbitrary rules as the way of life in an HOA.” Most of these so-called professionals do not understand the origins and intentions of the profit-seeking individuals who created this legal scheme, where these authoritarian and draconian methods were necessary for the survival of this new, untried approach to housing in 1964. And is still carried forward today where state legislators see no evils with authoritarian, private governments protected by state legislation — no enforcement by means of penalties for HOA board violations, but the homeowner can lose everything — and operating outside constitutional protections. The HOA, for some unstated government interest, must survive and the Constitution can be denied when necessary!

So, what do HOA boards and managers have to fear if they are unethical, violate state laws, and are grossly unjust and arbitrary in their dealings with their members? A slap on the wrist, maybe, if the homeowner is principled enough to spend his time and money just to get the HOA to do what it’s supposed to do. Apparently, our government doesn’t think that the compliance by private government HOAs with their statutory and contractual obligations is not a matter of general public concern. Apparently, they, too, believe in a masochistic and demented American population who cherish living under such conditions and need no protections.

Welcome to the New America of HOA-Lands.iv


References

 i  See “Psychologist defines the HOA Syndrome caused by oppressive HOAs”, HOA Constitutional Government, October 7, 2010.

ii  See “Professor: Homeowners Get Ill From HOAs”, Fox5 News, Las Vegas, October 1, 2010.

iii  Villa Appalling! – Destroying the Myth of Affordable Community Living, Donie Vanitizian and Stephen Glassman (Villa Appalling Publishing, Inc 2002).

iv  See Understanding the New America of HOA-Land, George K. Staropoli (StarMan Publishing 2010).

Stop your HOA foreclosure –demand the HOA to prove title

The real issue as I’ve pointed out is:  Does the foreclosing party hold the deed?  That’s what all the “robosigning” and “document irregularities” are all about — saying that they held the title.  The MSNBC Dylan Ratigan show at 1:00 PM MST described the problem quite well.  You can track it down by going to the internet and viewing the segment online. (View http://www.msnbc.msn.com/id/31510813/).

Ratigan asked if the foreclosure fraud was intended to cover-up the larger mortgage “give away” fraud.  Ohio AG said foreclosures  “involved filing fraudulent evidence” in the foreclosure process – “fraudulent affidavits.”  Ratigan said it quite clearly: “the banks to bypass the normal court procedures  to force the mortgage holder to prove they own the property in order to foreclose.”

 HOAs DO NOT HAVE TITLE TO FORECLOSE!   

While the CC&Rs  and state laws allow them to foreclose, most must follow the laws regarding mortgage foreclosures.  Homeowners facing foreclosure should get an attorney to stop any pending HOA foreclosure, ASAP!

And, have you asked yourself, why didn’t the HOA attorneys know about holding title?  Why didn’t the national HOA education and lobbying group’s College of Community Association Lawyers (CAI’s CCAL) know about holding title?  Why not?

See HOA foreclosures illegal under “no title” rulings?

HOA foreclosures illegal under “no title” rulings?

I now address the overall legitimacy of this right by the HOA to foreclose. I have said enough about the HOA draconian foreclosure right, its discriminatory nature, and its cruel and unusual punishment aspect when the homeowner losses more than 10 times the amount owed the HOA. Or the fact that it reflects the mismanagement by the board who refuse to use standard AICPA “provisions for bad debts” to ameliorate any shortfalls.

Most CC&Rs and state laws grant the HOA a lien on the homeowner’s property from the day the assessment is due, and that the perfection of that lien is automatic when the CC&Rs are filed with the county clerk. They go on to say that the foreclosure of the lien is the same as a mortgage foreclosure. And, to get around the protections against deficiency sales, the right to a personal judgment is given the HOA by the unsuspecting homeowner. However, if the underlying right to foreclose is invalid, then the personal judgment is notwithstanding. Also, the claim that the lien is supposedly a valid consensual lien is irrelevant to the argument advanced below.

Recent developments (see in general, “MERS: Is Your Home Foreclosure Proof?”) have surfaced the longstanding rule of law that to foreclose on real property, the plaintiff must be able to establish the chain of title entitling it to relief. Although the court rulings pertain to the electronic deed filing service, MERS, the reasoning can easily be applied to HOAs since they do not hold title, nor can they establish a chain of title for relief. The law requires that the party foreclosing must produce a promissory note or assignment that it is entitled to relief. The recent court cases held that, in regard to MERS, if the foreclosing party is not the title holder of properties held in its name, the chain of title has been broken, and no one may have standing to sue.

 

We all know that the HOA is not the title holder, nor has an assignment of interests in the property. Remember that the laws and CC&Rs explicitly specify that the HOA foreclosure procedure follows a mortgage foreclosure procedure, which renders its right to foreclose invalid under the recent court holdings (California, Florida, Kansas, Nebraska all serve as persuasive precedent). If the laws so favored the protection of a person’s home as to require a proof of a chain of title, there should be no exception for the HOA to have a bona fide right to foreclose.

There cannot be unconstitutional special laws for a private organization without passing judicial scrutiny as to an appropriate level of government interest or purpose. If there is such a compelling necessity, and not just a convenience, then why not protect the homeowner by declaring the HOA a government entity subject to the same constitutional restrictions and prohibitions as all other government entities are subject?

 

These recent developments also raise the issue of an entitlement to relief. What is the entitlement to relief owe to the HOA that warrants cruel and excessive punishment through foreclosure? What are the damages to the HOA that are never stated by the HOA to warrant such a draconian procedure? Damages that favor and benefit the third-party HOA attorney more than the HOA itself? If the lender must produce a chain of title when it has advanced hard cash, why is the HOA, who has not advanced any hard cash, entitled to the same relief?

 

Homeowners facing HOA foreclosures should immediately contact a lawyer to pursue this defense and put a stop to draconian foreclosures that serve to intimidate and punish homeowners who have fallen on hard times.

Psychologist defines the HOA Syndrome caused by oppressive HOAs

Psychologist, Dr. Gary Solomon, a professor at the College of Southern Nevada, has advanced a definition of the HOA Syndrome, a disorder not too different from Post Traumatic Stress Disorder (PTSD). He describes the syndrome as,

HOA Syndrome falls into the psychiatric category of Anxiety Disorders. The Syndrome is characterized by a cluster of signs and symptoms– psycho-physiological indicators – such as:

  • feeling angry much of the time
  • anxious
  • on-edge or irritable
  • unhappy in one’s own home
  • depressed and sad
  • worried
  • nihilistic (hopeless)
  • sleeping disorders and/or nightmares
  • fear of going to one’s own mailbox,
  • paranoia
  • fear of allowing one’s children to play in their own neighborhood
  • fear of having one’s car ticketed or towed
  • stressed out
  • hyper-vigilance
  • restlessness
  • fear of losing one’s pet

 

The cause of this disorder, according to Dr. Solomon, lies in,

[T]he HOA strategically begins to focus on the homeowner’s minor, if not non-existent infractions. The purpose for these attacks is to create an income stream. This income stream makes its way into the pockets of the management companies, collection agencies and attorneys, none of whom live within the community that they are harassing. Like ravenous parasites, these organizations feed off of fear-based harassment. The homeowner, now locked into a mortgage, feels powerless over the HOA’s relentless hounding for more and more money. In short: the evolution of schoolyard bullying and lunch money stealing has turned into adult comportment known in the legal world as, racketeering, financial exploitation and extortion, and neighborhood money pilfering.

I, myself, have been contacted many, many times over my 10 years of involvement by widowers, seniors, single moms and “youngsters” seeking a resolution to the stress caused by the harassment and ostracism by the HOA through its newsletter or verbal statements, the HOA’s assault on their persons or properties, or the HOA’s slanderous actions. The HOA, or management firm, or attorney do not return calls or answer questions. The homeowner gets just another letter from the attorney with its $150 fee tacked on to the stated monies owed the attorney. In one outrageous flaunting of absolute power, an attorney, who is also an outstanding CIA member, kept on dunning this senior women although she sent the attorney statements from her bank that the HOA had cashed her assessment checks.

These homeowners, who may have opposed the board or one it its friends, or was the target of an unsupported and arbitrary fine, feel helpless because the police, the county attorney, the consumer protection agency, and the attorney general offer no assistance. And when they do try to contact an attorney, and are not rejected because the attorney works for an HOA(s) and won’t take the case, they may find an attorney who will take the case with his standard upfront retainer fee payment of a few thousand dollars. These homeowners feel isolated and persecuted by the HOA board, and the failure of the supposed democratic process within the HOA, which requires participation by “civic minded” neighbors. These neighbors do not exist – “Not my problem”. They, too, also fear the retaliation through fines and liens for opposing the board, making HOA governance a mockery of justice and the democratic process.

Dr. Solomon will hold a seminar on the HOA Syndrome:

 October 15, 2010

6:00 to 8:00 pm

College of Southern Nevada-Henderson Campus

Room C133

700 College Dr., Henderson, NV 89002

 

For more information please contact Dr. Robin Huhn: 702.812.4599

Read the poster.

Comments on CAI opposition to FHFA ban on HOA transfer fees – Notice 2010-N-11

Community Associations Institute, CAI, distributed its Oct 10, 2010 release in opposition to HOA transfer fee ban by the Feds — disguised as a generic appeal for the desperate need for property transfer fees to help mismanaged HOAs.    That’s “mismanaged” and mis-educated by the national educator of HOA boards, homeowners, government and everybody else — CAI.

It’s surface argument, designed to create fears in the minds of unknowing readers, is that the transfer fee gives HOAs much needed income, and the ban will take away what is a right of the private business HOA. The proposed Fed regulation would ban mortgage lenders from dealing with property sales subject to transfer fees.  Implied is that the HOA, like public government, must not be allowed to fail.

Here are a number of questionable statements from the national educator, controlled by lawyers.

1.  For HOAs to comply with the ban on fees in order to get mortgage lenders, CAI claims that the CC&Rs would need to be modified by the “standard” 2/3 vote, a near impossibility.  Well, not so. Most HOAs just take this on as a board decision, defending themselves by declaring that the CC&Rs allow the board may charges fees.  Period.  And if the CC&Rs were modified to include the new transfer fees, what’s the problem?  What say you, CAI?

2.  That these fees have been helped to fund reserve accounts is another CAI claim.  I say, What reserves?  I say, What “reserves for bad debts” standard AICPA procedures has been taught by CAI and used by HOAs to protect against income shortfalls?  None!  (See Using Bad Debt Accounting in HOA Budgets).  So, poorly managed HOAs by boards with defective and incomplete education resort to “socking it to them,” the sellers who will receive no consideration for the fee,. It goes to the HOA and the seller receives no benefit, except for the “payoff” to be able to sell his home.  Furthermore., some HOAs have been advised to stick it to the buyer by placing this payment as one that the buyer must pay into the sales agreement.  WOW!!  Where does the HOA get the nerve to impose on third-parties a cost of buying into the HOA, when there is no contract beyond buyer and the HOA?

3.  And CAI offers the “carrot” to existing homeowners, as if they are not subject to the fee.  CAI states that it will help “financially strapped community associations keep monthly assessments low.”

4.  With this release, CAI continues to promote the New America of HOA-Lands with its authoritarian, undemocratic private governance operating outside Constitutional protections for homeowners.  See Understanding the New America of HOA-Land.

5.  CAI should be investigated for a pattern of activity that supports subversive local governments that deny constitutional protections, sold under questionable methods —  the lack of informed consent and information about life in HOAs.

Ref:  

Notice of Proposed Guidance on Private Transfer Fee Covenants (75 FR 49932) 

Notice 2010-N-11 10/15/2010