What would you do?

Next month I am being deposed in the largest law suit our HOA has ever been involved with.

It may not be large by other standards, but the legal fees are now over 10k and the loser will likely be ordered to pay those costs. I have urged the Board to drop or settle this, but strong personalities are involved.

I was on the board at the time of this issue, which involves "excessive fines" assessed to a homeowner. This homeowner asserts that he was unfairly singled out for fines, and the board President had personal biases against him.

Ok- here is the issue- I am very well documented and have two years worth of emails between board members. These emails, in my opinion, do show a bias toward this homeowner...oh, hell, why sugar coat it? The Board President has a personal vendetta against this guy and the emails make her and the HOA look really bad.

The homeowner’s attorney apparently has not thought to ask me for these emails, but if he had them I can not envision the HOA wining this suit. With emails that say “Let’s fine the hell out of him, maybe he’ll get the message and move” and another where a board member says “Let’s not fine (homeowner A)…if it was (homeowner B) we would, but not her”.

(on a side note to Board Members- be carfull what you say in an email- they can come back to haunt you)

The real dilemma is this- what comes first, the greater good of the community or sending a message to a Board that you can not treat an individual homeowner this way? This homeonwer is no longer a resident and had moved. The Boards actions in this represent all that give HOA’s a bad name. As an example, the board fined him $2800 in just four days for overnight parking violations.

I’m not sure these emails are even legal to disclose. As I said, I have urged the board to drop the suit but the Board President is adamant that it goes forward. I know ultimatly I must make up my own mind, but anyone see a high road or a low road in this case?

These emails were NOT part of meetings, nor are they in the minutes (were they?)

So . . . it's gossip and opinion - although very disturbing conversation.

I doubt if these emails would be admissable in court UNLESS there was business conducted over email that could be interpreted as a meeting outside an official open meeting - which would be a violation.

Are you saying that there was collusion on a motion done by email BEFORE a meeting?

If the emails were asked for in discovery, and withheld, the HOA is breaking the law, and could be severely punished. If they were not, then bad lawyer on the plaintiff side for not including a request for "any documentation between interested parties pertinent to this case" or something.

Go to the depositions; answer the questions you are asked.

If the emails come forward, so be it. If they do not, then you can either bring them forward in deposition, or mail copies anonymously to the plaintiff, or get a copy of the discovery and interrogatories and see if they were included in material that should have been provided, and advise the board and legal counsel that you have them and they should be included. Or, if your morals allow, you can remain quiet.

RZ,

If you're deposed, you'll most likely be giving testimony, under oath, to attorneys from both sides. You will have to be truthful or risk being cited for perjury. It's basically the same as giving testimony on a witness stand in a courtroom.

However, I believe you simply have to answer the questions asked, truthfully. I don't believe you have to offer anything. In fact, one lawyer or the other might object if you did.

If the emails come out, they do. That's it. Be truthful, and let the events take thir course.

Sending a message to the board is more important. This lawsuit will likely repeat itself over and over with other residents unless its fixed. Loosing this lawsuit may be the best thing that can happen to your HOA. Residents will become upset and replace the people responsible.

I understand any member of the association has a right to go through all Board correspondence. This would include email. If a member can request email certainly a court can request email..

RZ, wish you good luck. These disputes are usually so unnecessary but some people will never learn.

Just so I am clear. You sat on this Board for at least two years while this went on.

Then for another period after resigining in protest you did nothing to change the Board or its actions. Sat back and did nothing.

But for all this time you retained e-mails and records from during your time of service.

Now you decide to go out of your way to act in a manner that might serve to damage the property and the majority of owners who had nothing to do with this. And in most cases probably knew nothing about it.

But in order to justify your actions now after the fact, you claim the Board brought this on themselves and the owners well you feel "bad" about that but doing what's right in your mind simply required collateral damage.

He's what I think might have happened. You sat on the Board and did not agree with their actions. You sat by for at least two years and did little. Then you decided to take the easy way out even though the Board representing your property was acting in a way that you considered improper you decided best for you to resign and let things continue. Doing the "right" thing just wasn't that important back then.

Now some years later you have this golden opportunity to get back at the Board, my guess especially the President and in the name of doing what's right you are willing to screw over your neighbors and the best you can do is feel "bad".

And you can sleep at night? So to wrap this up screwing over your neighbors and property is worth YOU teaching the Board members a lesson. And that's YOUR high road.

I just have to wonder how the neighbors might feel over you doing the right thing.

Melissa,

I agree with this statement 100%.

Unfortunately, when you have a board that makes bad decisions and stubbornly refuses to admit they're wrong, there is no recourse left but to go to court to force them to do what's right.

RZ,

As Jon said, you have to sleep at night.

Sometimes people keep quiet because they don't want to start trouble. Then, when the s*** hits the fan, they realize they have valuable information that can help one side or the other. What to do?

The answer is simple.

Be truthful.

Let your conscience guide you.

As far as the emails go, the court (judge) will decide whether or not they are relevant, whether they are official records or not.

Never try to predict what a judge or court will decide. The usually follow the law; not logic.

Melissa- This resident sold his property and moved out of state. The HOA turned his account over to collections and he sued to stop the collections. The HOA, in response, counter sued to collect the fees so that is where it stands. Our HOA has a bulldog lawyer that loves to litigate and the ex-homeowner apparently now has an anti HOA specialist law firm representing him. So you can see the dynamics forming.

Back to the emails- these were emails sent openly to all board members discussing the issue. Our board did a lot of communicating that way. Most of it mundane stuff but since we only met once a month, there was a lot of community issues discussed and even resolved. The reason I am being deposed is that a lot of the munities show me as the only "NO' vote on this ex-homeowners fine assessments, and my comments about the un-even application of fines are part of the record.

Jon- your comments are puzzling to me. True, I wanted all viewpoints, which is why I posted the situation but why the judgmental, almost angry tone? When I was on the Board I had one vote out of seven. Should you ever find yourself being railroaded by your HOA I suspect you would not be so quick to judge a person that would let some sunshine in on an out of control HOA. You mention the financial impact to the community, but regardless, the community elected this Board so the community must stand by the boards actions. What of the financial impact to the lone homeowner who would stand this expense all alone?

My deposition is the first of September and the trial date is mid September- I appreciate all the feedback and I'll let the forum know what happens- as others said, maybe the Judge and/or attorneys will find the emails irrelevant.

Now that I get a better picture of what is going on it makes more sense to me. Your HOA is counter-suing which is what I had suspected. Counter-suing is less expensive than suing. The real hang-up with it is that HOA's typically need represented by a lawyer in court. (Unless you trust a board member to do it). I can also understand why they are asking you questions because they do have reference to you directly noticing the very point the ex-homeowner is trying to make. Sounds like those emails aren't irrelevent at all.

Your best bet is to tell the truth and the whole truth. Answer "yes and no" to their questions. The lawyers are going to try to draw their own picture. No matter if you agree with them or not. Plus they will talk really really fast at you. Don't be afraid to ask them to repeat a question. They actually kind of like it, as it allows them to repeat their point. Your not doing anything wrong by answering the questions. Everyone is guilty no matter how innoncent we think we are...It's just the lawyer's job to prove it beyond a reasonable doubt and the court to approve it is so.

Did the HOA file the collections prior to the owner selling? Once that owner sells their property they become an Ex-member of the HOA. Which means they don't have a right to collect against a non-member. It's kind of complicated so stick with me... The HOA should have filed a lien for the money owed prior to the sell of the home. That means the owner could never have sold their property until the lien was paid off. The HOA can't lien the new owner or force the new owner to pay the lien. They also can't force the old owner into paying past dues/fines if they have already let the property go. It's a case of little too late on BOTH parties side... (Again everyone is guilty...)

This case has a good likelyhood of being tossed out. Each side paying their own legal costs. I'd call this a wash and a learning experience for all...By the way, JonD has issues and we just play along so he won't blow....LOL...

RZ

I will try to be brief. You serve on a Board to act in the best interest of your community.
Not to provide justice and teach life lessons at the communities expense. If that were your agenda you should have never joined the Board.

These e-mails were private communication between Board members not official records. No one but yourself has considered providing them as evidence in this proceeding. So it sounds to me like you are going out of your way to settle up.

Now on to me. I joined the Board here back in 1987. At that time is was run like the old boys club. Deals, waste, the Board President out socializing with the MC every Friday and Saturday night, no maintenance work, little services and at the end of the year all the money seemed to disappear. Then when I arrived at the monthly meeting I could tell everything was already decided among the Board leaders. Who by the way had the IQ of a carrot.

It was 8-1 in their favor and they thought I posed no risk to their empire. Just sit there and play along was the program they had for me.

Things had to change. I did not resign. I did not walk away. I did not act in a manner to damage my own property. I went to work. I spoke to people. I asked for their support and SLOWLY I got things changed. Very slowly. 14 YEARS of slow. Let me repeat that 14 years.

Then in 2001 after serving or should I say abusing the property the President and VP were voted out of office. Never saw it coming. A few months later the MC was fired.

He took us to court. Guess who showed up to testify on his behalf? The EX President.

My guess he was looking settle a score even if the property had to pay.

The MC lost and got not one nickel.

So that was 14 years of effort condensed into a few lines.

That is what I did. I did not walk away and throw my hands up and then find a way to teach lessons to the members of the Board and now suggest the owners accept the cost of the Board's actions because they voted them into office.

I could have done that but decided it was not the right thing to do. Easy and requiring little effort but in the end damaging to the property.

Change things don't settle for petty victories and claim you accomplished something.

Just my opinion.

And Melissa:

I do have issues. One being people who speak to matters they know little about.

I studied the law many years ago. I have a degree in Criminology.

You throw around legal terms as if you understand fully their meaning when it is clear you do not. Mechancic's lien comes to mind.

The standards of proof in criminal and civil matters are different. Resonable doubt as you mentioned, is used in criminal court not civil matters such as this.

A lawsuit between two parties over fines and collections is not a criminal matter.

But that is just one of my issues.

And to now predict the case will be thrown out? Just what do you base that on? If anything.

You are not as knowledgable of the law as you would like to believe.

Another issue of mine.

RZ please take the time to update us on what happens and your role.

I say "Hang Em High"

The homeowner sued to stop the collection of fines, not assessments. The Board, presumely the President, decided to counter sue. The operational expenses of the Association are funded by the collection of assessment, not the collection of fines. When an indivudual is fined $2800 over a four day period, one it's excessive and most likely a vendetta, as evidenced by the statement "Let’s fine the hell out of him, maybe he’ll get the message and move”. I would agree that going after an individual after they left over past due assessments could be justified, going after one for fines, after the comments that were made, NO.

As I would look at it, RZ could be standing up for the "wronged" homeowner and "getting" the President is just a bonus. Emails between Directors are NOT privilidge. While they may or may not be part of the "official records of the Association", they may be part of discovery in matters of litigation.

I am speaking from personal experience. I started two years ago "righting a wrong". Unfortunately, as in RZ's case, it wasn't 10K, but 25X that.

RZ, Best or luck to you

Under Rule 26.1 of the Arizona Rules of Civil Procedure, parties are required to disclose all relevant facts and documents to the opposition. In theory, the former homeowner should already have copies of all the emails. In actual practice, the attorney representing your HOA cannot disclose documents that his client is keeping hidden. Given the level of animosity that the president had toward the homeowner, I strongly suspect that president has withheld the emails from the HOA's attorney. (Believe it or not, clients do lie to their own attorneys.) If the president has not tendered copies of the emails to the HOA attorney then the opposing attorney has not received what he is entitled to.

The interest of justice would be best served if you made it known to both attorneys that you have copies of the emails. I can see no liability for you by informing both parties about the emails and a whole lot of liability if you knowingly withhold that information.

It is not your position to decide if the emails are relevant or admissible. That will up to the judge if the case goes to trial.

I hope your HOA is not being represented by Maxwell and Morgan.

You bet your money those emails are evidence and if they say what you say they do they show a pattern of behavior and a premeditation. They are just as relevant as the official minutes of the HOA.

If I were you, I would seek out an attorney, have a one hour consultation with him/her, pay their fee and solicit their advice on what to do with the emails. If this case has gone this far it ain't getting thrown out. Based on the little we have heard here I would wager on the homeowner winning. $2,800 in four days seems a tad bit absurd.