Tag: justice

What happened to the AZ lawsuit against HOA attorney for aiding & abetting missing $650,000?

In 2009, homeowners in DC Lot Owners Association obtained a court appointed Receiver to find out what happened to some $650,000 in missing HOA funds. CAI members, and CCAL members, Maxwell & Morgan were the HOA attorneys.  (See Arizona Capitol Times Oct. 7, 2009 article, Casa Grande HOA stripped of powers over accusations of theft and fraud).

In 2010, the Receiver then filed suit against Maxwell & Morgan and Charles Maxwell, personally — DC Lot Owners Assn v. Maxwell & Morgan, CV 2010-004684 — charging aiding & abetting, disgorgement, and breach of ethical duties among other charges.  As of this date, some 18 months after filing the complaint, the Pinal County, Arizona Superior Court shows no record of the case number, or of a complaint being filed naming DC Lot or Maxwell & Morgan as parties.  There is no record of a minute entry order to seal the court records, leaving the public totally ignorant of this important case involving HOA attorneys.

After some persistence, it was determined from a call to the Pinal County Clerk’s Office that the case was indeed sealed, no date given.  Why is the public being shut out?  Who ordered the sealing of the records?  The Judge?  Or was it pressure from the national HOA lobbying organization to squelch bad publicity about one of its self-declared, honored CCAL attorneys?  There is no legitimate reason for sealing the records of this case.  What happened to the $650,000?  Who is responsible for the loss?  The public has a right to know!

I am pursuing the matter seeking the help of media organizations to unseal the records.

NV agency opinion: stop making homeowners pay HOA attorney fees

The purpose of the homeowner in an HOA is to pay and pay and pay.     Donie Vanitzian, a homeowner rights advocate and author, said it back in her 2002 book, Villaappalling! Destroying the Myth of Affordable Community Living,

When homeowners move into [an HOA] they have only: Obligations to pay out money. . . They also pay out when and if the board tells them, ‘You have to pay’  . . . . Should you disagree with the board’s order (agenda or whim) to pay, you still have to pay to prove that you don’t have to pay.  (P. 296).

This message was recently taken to heart by the Nevada Real Estate Dept. (RED) in response to a request for an advisory opinion by homeowner rights advocate, Jonathan Friedrich.  This issue is a common, and one example of the broader issue of, “the homeowner pays and pays everything.”  Friedrich asked: “Does NRS 116.3115(6) give an association the right to charge a unit’s owner an attorney fee when the association’s attorney attends a hearing against a unit’s owner?”

The RED concluded,

Exercising the due process right to a hearing on an alleged violation under NRS 116.31031 is not in and of itself “misconduct,” “willful misconduct,” or “gross negligence.” Associations should not be using NRS 116.3115(6) to pass on any attorney fees resulting from a hearing, especially where the association imposes a fine to the maximum extent possible under NRS 116.31031. NRS 116 specifically provides for attorney’s fees to be provided to prevailing parties under NRS 116.4117 in civil actions to enforce the governing documents or NRS u6. The court is not required to award attorney’s fees even if an association is the prevailing party. Association board members who chose to have an attorney present at alleged violation hearings do so at the expense of all the unit owners. Such expense cannot be passed on to a particular unit owner.

Let’s look into some of these money making practices, not for the HOA, but for the HOA attorney, which serve to intimidate the homeowner by means of legalized extortion – demanding payments under the threat of harm or injury.

Understand that the modus operandi here – the reason for doing – is fostered by the legal HOA scheme that allows the HOA attorney to control and strongly influence board decisions in its favor.  (Relying on expert advice will relieve the director of any personal liability).  And that is to go to court under the justification, “You can’t let the masses get away with anything as it undermines your authority to rule.”  My words, but to the point.  So, why not adopt a hostile, no holds barred approach which generates income for the attorney. And, making this approach more appealable to the board by pointing the HOA legal scheme, the attorney tells the board, “Don’t worry, you can charge all this back to the homeowner.”

Another  prevalent tactic occurs in an attempt to work out issues with the board on matters of alleged fines or late assessment payments.  The homeowner is often told to talk to the attorney and not anyone else, where the attorney tacks on his usual fee of $150 – $300 per  transaction.   Shades of  banana republic justice!  This amounts to legalized extortion —  pay to resolve our charges even before a hearing on the merits takes place.  But, we all know the hearing is just window dressing  — we’ll give you a fair hearing before saying, “Guilty.” Makes you wonder why the HOA attorneys do not fight for a fair and just due process procedure like that offered by the Office of Administrative Hearings in Arizona, doesn’t it?

I congratulate the Nevada RED for its just and fair opinion, and Jonathan Friedrich for seeking the opinion.  We need justice for homeowners from our state protective agencies to put a stop to these obvious HOA banana republic tactics.

We need to seriously look into the roles of the HOA attorneys and their overbearing advice to go to court no matter what.   And many times these court actions are frivolous and violate rules of civil procedure relating to  a meaningful action  based on an examination of the facts and the law by the attorney.

Are HOAs part of this country, this community, or are they secessionist?

“While Terry believes HOAs wield far too much power, Marta Gore has a different opinion. “We all want our property values to increase. In order for them to increase, we all have to hold to a certain standard,” said Gore.”

And that requires, as history has well demonstrated, strict enforcement of the rules to coerce obedience to the objectives of the state[1], which flows not from the US Constitution, but from the HOA organic law based on The Homes Association Handbook and UCIOA[2]. Wait, wait . . . do you hear the refrains of Deutschland uber alles, the adopted hymn of HOA-Land?

HOAland, HOAland über alles,

Über alles in der Welt,

Wenn es stets zu Schutz und Trutze

Brüderlich zusammenhält.

. . . .

HOAland, HOAland über alles,

Über alles in der Welt!

HOAland, HOAland above everything,

Above everything in the world,

When, for protection and defence, it always.

takes a brotherly stand together.
. . . .

HOAland, HOAland above everything,!

Above everything in the world!
“Gore is with Texas Community Association Advocates; an organization that represents hundreds of HOAs in Texas. The McKinney resident says a few abusive HOAs give the rest of the industry a bad and undeserved reputation.”

Why are they continually opposing reforms to hold the rogue and intentionally wrongful HOAs accountable to the state, and to demand good corporate citizenship.  Are they saying that it’s not the job of our HOA, that it’s not in the CC&Rs?

 See Powerful HOAs Leave Many Texans Feeling Homeless

References

1. HOA Gestapo tactics — the slippery slope steepens

2. Legislative protection of HOAs: replacing US organic law with HOA organic law

Colorado report on HOA problems needs to be corrected

The Colorado real estate department issued its first report on the state of HOAs and condos for 2011, raising some questions of integrity. A total of all the complaints in the chart shows 893 complaints, or almost twice as many as proclaimed. In fact, totaling the listed percentages show almost a doubling to 194.2%. See the chart link below, where “adj pct” is the “normalized” percentages.

The normalized analysis shows that all the complaint types that can safely be attributed to governance issues, the top 16 in the table, make up 84.3% of all complaints. And, those 4 explicitly stated management complaint,  amount to 31.1% of all complaints.

If those in power refuse to face the reality before them, then they live in a delusional world where effective reforms can never occur. And where there are unjust laws, then the government is seen as illegitimate and not representative of the people who are the State of Colorado.

See Colorado report

Why did the judge allow seizure of HOA member’s home for rent payments?

In continuing my mission as a homeowner rights advocate and activist, rather than taking the politically correct stance of “one of the boys”  and we are all in this together kumbaya, allow me to dig a little deeper into the Florida HOA takeover of a homeowner’ home.  (See Behold the power of the HOA over your private property).

My thanks to Florida attorney Jean Winters’ who directs her blog readers’ to the Florida law in question, FS 720.3085.  Another statute that reflects a pro-HOA public policy.  (Does F.S. 720.3085 allow an HOA to take possession of a homeowner’s home and bar her from her own property? )   

Winters’ rightfully questions the judge’s order to grant HOA possession of the member’s  property, which was most likely sought by the HOA in its “prayer for relief” section of  its complaint.  It is important to understand the driving force behind many HOA actions.  Solomon, another Florida attorney, commented on this incident (quoted in Behold the Power above),

“Judges rely on what rights attorneys tell them their clients are afforded under the law,” Solomon said. “If there’s no attorney on the other side to argue that it’s wrong, the judge most often takes the word of the attorney and grants the motion. Plus, these judges hearing these cases usually are not experts in real estate law.” [Nor HOA law].

Winters’ asks,

What statute or provision in the Declaration of Covenants permits an HOA in this situation to rent or act as the owner without title to the property? What gives the HOA the right to threaten the lawful owner (and her attorney) with trespass and to bar her from access to her own property without a foreclosure proceeding?

First, subsection FS 720.3085(8)(a)(1), dealing only with the right to collect rent payments, requires a notice be sent, which was not done.  Furthermore, (8)(d) allows for eviction of the tenant only if payments are not made, but explicitly denies bona fide landlord rights to the HOA.  And, if this is not satisfactory to the HOA, it can have a court appoint a Receiver to collect rents – period. 

What we have here is the disgraceful state’s interference with a contractual obligation between landlord (member) and tenant granting the third party HOA preemptive rights to collect monies under the contract.  This interference cannot be justified as a bona fide government interest as it protects one party over the individual. In fact, subsection (8)(a)(1) grants powers to the HOA to collect rents for any debt owed the HOA, and that means fines, attorney fees, interest, etc., ”If the parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association . . . .” 

Please understand the special privileges granted to the HOA. For example, under a mechanic’s lien judgment, the worker cannot have rent payments be delivered to him personally.  And he would first have to get a court order.  Even under garnishments a court order must first be obtained.  But no, the HOA has the power to act on its own.   Again we have another example of pro-HOA public policy favoring special rights and privileges for HOAs only, and not any other business or creditor/debtor relationships. 

I’ve written about the culture and climate that is an open invitation for intentional wrong-doing by HOAs, presumably with the approval of their attorneys. With this pro-HOA public policy, “HOAs have no restraint on running amuck, and on intentionally running amuck.”