PROCEDURES FOR PROCESS SERVERS

JoanneD1 (Arizona)
Posts: 447

Posted:

ARIZONA QUESTION: My guard gated community has a policy that states the gate staff do no call owners to alert them that a process server is coming to their door. We got a legal opinion on this a couple of years back and felt that the community could be put at risk by of obstruction with a court order. We now have a sitting board member who wants to change this policy because of some legal/financial problems and he obviously does not want to accept anything from the courts. Can anyone speak to this issue? Thanks!!

TimB4 (Tennessee)
Posts: 21,047

Posted:

I would point out the previous legal opinion then, if there are concerns, ask that the Board seek a new legal opinion in case the laws have changed.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

My friend was a process server. Sounds like this guy is trying to use the gate guards for protection. I would take Tim;s advice and state the previous legal opinion and established policy Make sure it is put into the official meeting note for future and permanent reference. The servers can serve someone anytime and anyplace. (For the most part). The person does not even need to pick i up or touch it as long as the processor shows they delivered it or made the attempts. This guy should live his life better and not need to worry about such things...

Post brought to you by my new google tv...LOL sorry about the typos...

Former HOA President

JoanneD1 (Arizona)
Posts: 447

Posted:

Thank you both Tim and Melissa. This really is a very serious matter and if you have a minute, I will paint the picture. The owner who is also on the board is in VERY serious trouble legally and he alleges to have had death threats. He was NOT physically in attendance at the last board meeting HOWEVER he was on a speaker phone and he REFUSED to recuse himself from the discussion and because the board president is a friend, he permitted him to stay in the conversation...and all the while the PM sits is utter silence. One of the points that was made as to NOT alert owners is the fact that we have NOT alerted other owners and do not want to discriminate. The board member would not accept the legal opinion and claimed his circumstances were different because of the threats on his life. This member has every excuse imaginable why owners must be notified by the gate when a process server is coming to their property INCLUDING that even though we get all the proper documentation from the server, "he could be an imposture". This member was also not agreeable to having a police officer accompany the server. He demands being called and he is threatening a law suit if we do not do this! He loudly passionately stated that he had a gun and a right to bear arms and if he shots an unannounced visitor, he will hold the HOA liable. Yes, this is all talk, but it is scary talk! The board president was seen having a meeting with his friend/director and now there is a very suspicious second opinion in which the attorney references having talked to a friend who owns a process service and claims there are no laws that really make the servers an "officer" of the court. There are references in the attorney email that closely resemble the arguments made by the board member and I would guess that the board member was actually permitted to submit something in writing to someone who may have passed it on to the attorney. The attorney suggested that the topic be brought up at a meeting of the homeowners BUT I think the other directors are afraid of the owner because he sounds like a person on the edge. There were over 20 owners who heard the conversation and there is chatter about removing the member from the board but I think everyone is afraid. We live in desperate times. I am going to call several process service companies. The only board member who speaks out on this has already been threatened because when he was running for office a year ago, she did some checking and there were very negative things written about this man on the internet because he "closed" a business and yet the membership voted him in despite the warnings. Wonder if contacting a third attorney who is not friendly with the PM would be the answer? Thanks again. Hope we don't make headlines!

JohnB26 (South Carolina)
Posts: 1,569

Posted:

http://www.process-servers.net/Process-Server-Trespass-Issues.asp

re: Florida > http://www.napps.org/pdf/newsreleases/Law_Allows_Process_Servers_Access.pdf

JoanneD1 (Arizona)
Posts: 447

Posted:

John, Thanks so much for taking the time to send me this.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnB26 on 01/21/2012 7:17 AM
http://www.process-servers.net/Process-Server-Trespass-Issues.asp

re: Florida > http://www.napps.org/pdf/newsreleases/Law_Allows_Process_Servers_Access.pdf

John

I see you are in SC. Please subject about filing liens.

Thanks

JoanneD1 (Arizona)
Posts: 447

Posted:

I am in Arizona John. I have passed that website on and the topic of trespassing was not mentioned in either legal "comment" that we have received. I am contacting some other HOAS in my area and also some service companies to compile some data for my own records on this. One needs to deal in FACTS and not personalities for sure.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Ther is a line between board duties and personal. call the police if he threatens damage or harm. That is illegal. Have it on record so it can be used as proof if it were to go to court. You need a histiry of activity for the courts to see.

In addition his threats are empty. They hold nothing as the HOA would not be responsible for HIS actions. Plus suing your HOA is suing yourself & neighbors. It is cheaper & better to counter sue anyways. So my response would be see you in court...Treat empty threats not as possibilities but with the air they are spoken with...nothing...

Former HOA President

TimB4 (Tennessee)
Posts: 21,047

Posted:

Joanne,

Wow.

As for the PM sitting quietly - in my opinion that's what they should do unless asked for an opinion. This is a meeting between the directors and the PM, Committee Chairs, etc. are there to make a report and be available for questions. Some Boards invite them to chime in whenever they feel it's necessary and some do not (for the record anyone who attends our meetings may contribute at any time).

As for the individual threatening to hold the Association liable if he shot an unannounced visitor - I don't think it would hold up in court. The unannounced visitor could be a neighbor or anyone.
Personally, I would contact the police and inform them that the individual claimed to have a weapon and shoot unannounced visitors (i.e. start the documentation process).

As for the lawyers opinion, you need to know what question was asked. Asking "Should we notify members when process servers have entered the property?" is far different from "Is a process server considered an officer of the court?"

I'd say ignore the attorneys and ask the courts directly. If you go to AZ Courts webpage on process servers there is an e-mail contact and phone number about the process server program. They can probably answer any questions you might have and be cheaper than an attorney.

By the way, per as pointed out in this judicial administrative order and per A.R.S. § 11-445(I) a process server is an officer of the court.

Tim

JoanneD1 (Arizona)
Posts: 447

Posted:

Tim....THANKS. In this day and age, who knows what any person would do under great pressure. I have contacted the police but have not formally done a report as I am somewhat fearful of this person and I do not want to be the test target! Will check the sites you have referenced. As far as the PM, whenever he is asked a question, he never knows the answer or gives one in the gray area or I will check on that. He has been here for 17 years!!! Found some money shortages thanks to his sloppiness (over $4600 and he paid us back) and no one will agree to fire him. I am advising my friend on the board as she took my seat when I resigned because I absolutely could not work with this individual or the president. My friend asked the manager for the legal opinion that we got when I served and instead of giving her the memo, he gave her his opinion and it was contradictory to what was actually in the memo so we have brick walls everywhere. I ended up supplying her with the info and sending her to specific sections in the declarations when she needs help. Both Pres & owner I am talking about do NOT like her at all and the other two members would not say s__t if they had a mouthful of it. I fear that if a special meeting is called or the topic comes up at the next board meeting (which is what the new legal review suggested) , the owners who were in attendance when these threats were made will remain silent but I do hear that there is talk of removing the owner from the board. Will keep you posted as this is pretty interesting and with foreclosures so prevalent, all HOA's need to know how to respond. We have had 5 in a community of 79. Thanks again!

BradP (Kansas)
Posts: 2,640

Posted:

Joanne:

Thing to remember, desperate people often take desperate and irrantional measures...Two things I would do:

1) I would inform the police of his threats and let the police know what your procedures are. If he is threatening to shoot people this is information they will not take lightly.

2) I would not change your position, in fact I would also send this information to your attorney for their digestion.

At the end of the day you have to do right by the community, not one person, I would not want to get into the middle of an obstruction charge so I would stay out of it!

JoanneD1 (Arizona)
Posts: 447

Posted:

I totally agree with you Brad and when I called the police this morning, they wanted all of my information and said they redact it but the mental state of this owners scares me. I found out that the process server was let in last week without notice to him and they will continue to try. I was also told that they came in at a very late hour and the owner would NOT open his door. I just received word that the owner now is PUSHING for the BOD to change the policy WITHOUT a board discussion or open meeting HOWEVER ONE member other than my friend is now putting on the brakes!!!! THANK GOD!

BradP (Kansas)
Posts: 2,640

Posted:

Stay the course, this guy will get more desperate as time goes and now that the police know I wouldn't be surprised if the process server has an armed escort the next time he shows up. You can't dodge it forever, they will find you, sooner or later!

JoanneD1 (Arizona)
Posts: 447

Posted:

Brad.....have no fear....I am a pit bull; when it comes to this kind of injustice and now that I have heard there is someone who is putting the brakes on all of this...I am somewhat relieved. Do not misunderstand...if the gate is not acting in accordance with the law, so be it.....but to have a BOD dictating how we are to operate so that his personal needs are met is an outrage and not what I buy into. You folks are the BEST.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

The court is going to win. This person is going to lose. Ever hear of contempt of court?

Possibilities:

If this is a civil case and the person is being served with an order to appear - if this person is a defendant and he doesn't appear, he loses by default.

This person could be arrested if he leaves the property.

The court can order him to be arrested. Try interfering with that.

The court could order the arrest of the guard and the board members for obstruction of justice.

I could go on. There is no escape. Justice will prevail.

JoanneD1 (Arizona)
Posts: 447

Posted:

Bruce, I hope you are right. I am not a judge but from what I read in the newspapers, his freedom is at risk. Time will tell and thanks for your input.

LarryB13 (Arizona)
Posts: 4,099

Posted:

I used to be a process server in Arizona. The courts have ruled that a process server is acting on behalf of the state to carry out its public policies. Therefore, no one has the authority to obstruct or prevent a process server from doing his job. In fact, it is a crime to obstruct a process server. A process server may lawfully order others to assist him and it is a crime to refuse. A process server may not be arrest for trespassing while on official business.

The guard at your gate has no choice but to allow a process server to enter and the guard would be guilty of obstructing if he alerts a resident that the resident may evade service.

Process servers are issued identification by the court and are not armed.

Your board member is asking that the rest of the board conspire with him to obstruct an officer of the court. It's all just a question of how many years you all want to go to jail.

I would love to see him sue the rest of the board members because they obeyed the law. Kind of ironic that he would have to hire some process servers to knock on your doors.

As to that second legal opinion: Lawyers do not rely on the opinions of those who own process serving companies; they research the statutes and case law. Lawyers rarely send their opinions by email, either. Remember the words of Abraham Lincoln: "The problem with email is you never know who really wrote it."

The board member's threat to shoot anyone who shows up at his door should be reported to the police immediately. The guard at your gate should also be alerted of this intent and make it known to anyone who is going to be going to this door.

This person is irrational, stressed out, misinformed, desperate, and armed. Since your board know this, he could be correct that the HOA would be liable if he shoots someone. Gross negligence is knowing of a dangerous situation and ignoring it. You need to be on the phone with every law enforcement agency until someone removes this menace from your neighborhood. If he has children, make a complaint to Child Protective Services.

There is no reason that people should live in fear of an armed nutcase. (If he lived in my community I would not hesitate to burn his home to the ground and make it look like he did it himself to collect on his insurance. Or, maybe, throw a rock through his window.)

JoanneD1 (Arizona)
Posts: 447

Posted:

Larry, I think that you are right on the money. The owner is now desperately pushing the board to abandon the current policy of NOT calling the owner to alert them and he wants to do it by UNANIMOUS CONSENT by email HOWEVER, he is so desperately failing to realized that all must agree and there is another board member that is not going to go for his recommendation so that CANNOT happen. I am forwarding this responses to my friend on the board so that she can see that even outsiders recognize this situation for what it is. The servers were here two times last week and again the owner refused to answer his door. He apparently is not only running from the courts but an ethnic group whom he shafted in this business deal That is the chatter I am hearing. The legal opinion they got was from a lawyer who responded in such a way that it is obvious that the owner spoon fed information to him. Here is a sample of what the lawyer said, "As the environment continues to change and new circumstances arise, the Board has found it necessary to revisit the process server issue. Based upon my research to date, it is my opinion that the Board can be as restrictive as it desires as a guard gated community with respect to process servers." There is no way any good lawyer would write that. This is from the owner who has his butt in a big sling! I have checked with some comparable gated communities and some call the owners and some don't. I suspect those communities have not been challenged to the degree that we have been. Will keep you posted and THANKS AGAIN.

BradP (Kansas)
Posts: 2,640

Posted:

Joanne:

I don't think it is the Board's position to as Larry put it "contact every law enforcement agency until he is removed". I think the board needs to contact its local jurisdiction, report the threats and that is your burden in my opinion.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

This person obviously is being very immature and believes that he can avoid a judgement against him if he isn't served. It doesn't work that way.

I'm not familiar with Arizona law, but some jurisdictions allow "drop" serving if a person refuses to answer the door. The process server can just leave the summons on his doorstep and it is considered served. There is also service by publication, which requires only that a notice be published in a local newspaper. If there have been numerous unsuccessful attempts to serve the person, the court (judge) can also enter a default judgement against the person, which can be enforced.

What this person doesn't understand is that the purpose of a process server is to protect his constitutional rights by informing him that legal action has been filed against him, thus affording him the opportunity to defend himself in court. He thinks by his refusal to be served he can avoid the legal action. He cannot. He is simply refusing to defend himself.

JoanneD1 (Arizona)
Posts: 447

Posted:

Good Morning! I think the reply from Brad showed passion and that many of us agree with some of the specific items. This H.O. is getting more desperate because the server is now coming multiple times per week. I am certain that there are other avenues to notice the H.O. but it his insistence, urgency and persistence to abandon the current policy and craft one for his own situation with NO respect to the other owners that is so infuriating. Here is a quote from one of his arguments,"I personally purchased a home in this community because of the implicit privacy ensured by the gate. I am certain that I am not the only person who did so. I am also certain that it is not broadly understood that the prior actions severely abridged the rights a homeowner acquires when they bought here, thus reducing the value of their bargain.The front gate to our community is the equivalent to the front door to a homeowners residence. The gate has a duty implicit in the expectations that its sole purpose is to ensure the privacy and security of all homeowners to exclude everyone uninvited, including process servers." This owner will NOT concede that the intent of the gate was not to impede with state statues or the rule of law. Again.....this H.O wants to be warned by the gate because I think he is conceding that the gate must be opened.

One argument someone presented was does this homeowner want them to call his home in the event of a health emergency and not let in the paramedics without permission?????

To be continued.......

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By BradP on 01/23/2012 7:21 AM
Joanne:

I don't think it is the Board's position to as Larry put it "contact every law enforcement agency until he is removed". I think the board needs to contact its local jurisdiction, report the threats and that is your burden in my opinion.

Brad,

I think you misunderstood my advice.

First, I do not see this as something that only the board should address. Every resident should be concerned about a paranoid whacko with a gun threatening to shoot anyone who knocks on his door. What if it is your daughter selling Girl Scout cookies? This is a community problem, not just an HOA problem. The problem with bullets is that they do not always go where they were intended to go and do not stop where they were intended to stop.

Second, my advice to call multiple agencies is based on my experience that law enforcement agencies are generally pretty slow to respond until they have a couple of dead bodies in the street. When you call the police for help in preventing bloodshed you are not likely to get much help. If the city police actually do respond on the first call, then there is no need to call anyone else. But that seldom happens and that's why I suggest persistence.

BTW, what if the paranoid guy with a gun really has received death threats? Who would make a credible death threat? The Mob, especially the Russian Mafia, comes to mind as do the drug cartels. Both are active in Arizona. It seems to me a call to the FBI and DEA might be a good alternative to ethnic gangs invading a gated community shooting at anything that moves.

JoanneD1 (Arizona)
Posts: 447

Posted:

Whacko for sure! You have to know the history and see this owner when he takes walks off property wearing a hoodie! The thinking o someone really being hurt would seem extreme except that it happens and people have been shot in HOAs. Larry...you are pretty intuitive....the Mob is the talk here and a bad business deal with not only a judgment from a bank for 2.5 million but outside threats from fired employees and one can only imagine. The latest now is that the board president wants to call a special executive session meeting but he will not recuse the H.O. Is there not a conflict of interest here? More will develop no doubt.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By BruceF1 on 01/23/2012 7:30 AM
This person obviously is being very immature and believes that he can avoid a judgement against him if he isn't served. It doesn't work that way.

I'm not familiar with Arizona law, but some jurisdictions allow "drop" serving if a person refuses to answer the door. The process server can just leave the summons on his doorstep and it is considered served. There is also service by publication, which requires only that a notice be published in a local newspaper. If there have been numerous unsuccessful attempts to serve the person, the court (judge) can also enter a default judgement against the person, which can be enforced.

What this person doesn't understand is that the purpose of a process server is to protect his constitutional rights by informing him that legal action has been filed against him, thus affording him the opportunity to defend himself in court. He thinks by his refusal to be served he can avoid the legal action. He cannot. He is simply refusing to defend himself.

Much of this depends on the nature of the action. If the plaintiffs are suing for a monetary judgment, the defendant must be served personally, although this can be done by serving any adult who answers the door at his dwelling place.

Drop service is permitted only in certain types of actions, such as evictions (aka forcible detainers). Service by publication is seldom used and normally applies to actions such as quieting title.

A party cannot usually obtain a default judgment just because the defendant cannnot be found. In most cases, if the party is difficult to serve the judge can permit some alternative service. In one recent case, a defendant managed an office and his receptionist repeatedly denied that he was in his office. After several attempts that all met with the same response, the judge ordered that service could be made upon the receptionist.

In the present case, after several attempts at service are repelled by refusing to answer the door, the judge will allow service to be made by taping a copy of the summons and complaint on every door of the house and/or sending a copy by mail.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By LarryB13 on 01/23/2012 8:46 AM

Posted By BradP on 01/23/2012 7:21 AM
Joanne:

I don't think it is the Board's position to as Larry put it "contact every law enforcement agency until he is removed". I think the board needs to contact its local jurisdiction, report the threats and that is your burden in my opinion.

Brad,

I think you misunderstood my advice.

First, I do not see this as something that only the board should address. Every resident should be concerned about a paranoid whacko with a gun threatening to shoot anyone who knocks on his door. What if it is your daughter selling Girl Scout cookies? This is a community problem, not just an HOA problem. The problem with bullets is that they do not always go where they were intended to go and do not stop where they were intended to stop.

Second, my advice to call multiple agencies is based on my experience that law enforcement agencies are generally pretty slow to respond until they have a couple of dead bodies in the street. When you call the police for help in preventing bloodshed you are not likely to get much help. If the city police actually do respond on the first call, then there is no need to call anyone else. But that seldom happens and that's why I suggest persistence.

BTW, what if the paranoid guy with a gun really has received death threats? Who would make a credible death threat? The Mob, especially the Russian Mafia, comes to mind as do the drug cartels. Both are active in Arizona. It seems to me a call to the FBI and DEA might be a good alternative to ethnic gangs invading a gated community shooting at anything that moves.

Larry...thanks but i understood it clearly the first time...when you talk about negligence which is what you were referring to earlier you always apply a standard of what would a prudent person do. In this situation in my opinion a prudent person would either ignore the dude or they would contact their local police department and fill out a report. Do board members carry a higher standard with them, maybe, but not to the extent that they need to contact every agency around. This is a police matter, once you have filled out a report it is in their hands. Now, if you want to take the extraordinary step of contacting the sheriff, FBI, DEA, CIA or whomever that is your decision, however, I don't think that step is a necessary one to mitigate the association's liability.

As for my daughter selling girl scout cookies, I don't send my kids door to door to stranger's homes. I think it is rude. My kids only sell to people we have a pre existing relationship with.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By BradP on 01/23/2012 9:40 AM

Larry...thanks but i understood it clearly the first time...when you talk about negligence which is what you were referring to earlier you always apply a standard of what would a prudent person do. In this situation in my opinion a prudent person would either ignore the dude or they would contact their local police department and fill out a report. Do board members carry a higher standard with them, maybe, but not to the extent that they need to contact every agency around. This is a police matter, once you have filled out a report it is in their hands. Now, if you want to take the extraordinary step of contacting the sheriff, FBI, DEA, CIA or whomever that is your decision, however, I don't think that step is a necessary one to mitigate the association's liability.

As for my daughter selling girl scout cookies, I don't send my kids door to door to stranger's homes. I think it is rude. My kids only sell to people we have a pre existing relationship with.

Brad,

This is in part a board problem because the person at the center is a board member, the HOA president seems to be on this guy’s side, and the problem homeowner has apparently made a number of irrational threats and demands at board meetings. Being a gated community, the homeowners have ceded much of their authority to the HOA. Under common law, the entity that takes control or has control is responsible for the outcome. I would be the first to admit that the HOA would not solely liable, but it is the only party that has big fat insurance policy.

But the board alone is not liable. Anyone who knows that this person is irrational, armed, and threatening to kill people who come to his door has a responsibility to take some sort of action. The difference between simple negligence and gross negligence is that the latter involves knowing of a danger and disregarding it.

Would a prudent person ignore the presence of a paranoid person living in their community who has publicly threatened to kill others and claims to be armed to the teeth? You imply that hiding your head in the sand and leaving is what a prudent person would do.

In east Phoenix a number of years ago there was a delusional man who lived in an apartment complex. He repeatedly complained to the apartment manager that the girl who lived upstairs on the other side of his building was interfering with his TV reception and that he would kill her if she kept it up. The manager ignored the complaints and the delusional man killed the other resident. Her estate sued and the court found the apartment owners liable because they ignored the death threats.

There are three basic elements to the problem described in this thread: irrational person, firearms, and his physical presence. If one of those elements can be altered, the danger is removed.

Filing a police report is a good first step. The chances of the police hauling this guy off for a mental health evaluation on the first call are not good. In Pima County (Tucson), for example, only twenty five percent of complaints are even investigated. Are you aware that the police have no duty to respond to calls for help?

While a police report in a filing cabinet may make you feel warm and fuzzy, it does not remove the danger. Nothing has changed until you somehow remove the person or the firearms from the community.

I do not see this as something that can wait until the next board meeting or waiting to see if some police agency is going to investigate. Hence my advice to call multiple agencies until you find one that will respond. I would not rule out seeking a court order to have the person committed for a mental health evaluation. (This is what the police should do, but the residents may have to seek this on their own.) I would do whatever it takes to eliminate the danger that this resident poses.

While I am glad that your daughter does not knock on strangers’ doors, there are many people who have a legitimate need to do so. Delivery persons and meter readers come to mind, as well as police, firemen, and process servers.

JoanneD1 (Arizona)
Posts: 447

Posted:

Hello there! I have just sent Larry's email off with some comments in a plea for a small group of us to take some kind of action. Presently, the president has called for a special meeting EXECUTIVE session for Thursday giving the subject matter as legal items. The president of the HOA thinks I am harassing him because I do call them out when they do not follow proper protocol and they do it all the time and the community divide here is one for the text books....kind of like our country right now. Regardless of how this plays out you are right Larry and I have said this, the community still has an owner with a gun who had made threats. There is nothing good about this situation. My friend on the board is worn out from everything and I try to buoy her but I think she is finished fighting. I am waiting for a response from this group if we can't come up with something...I may just take it upon myself to make the call to the police. Unfortunately we live in a "stand-by" society and people are generally NOT willing to get involved. I probably am too much in the other direction, but I do sleep well. This board does ALL it's noticing and communication to owners by email and we have owners without it. No postings are up for the meeting they just called. It is very disgusting. Thanks again for your help on this.....to be continued.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By LarryB13 on 01/24/2012 11:42 PM

Posted By BradP on 01/23/2012 9:40 AM

Larry...thanks but i understood it clearly the first time...when you talk about negligence which is what you were referring to earlier you always apply a standard of what would a prudent person do. In this situation in my opinion a prudent person would either ignore the dude or they would contact their local police department and fill out a report. Do board members carry a higher standard with them, maybe, but not to the extent that they need to contact every agency around. This is a police matter, once you have filled out a report it is in their hands. Now, if you want to take the extraordinary step of contacting the sheriff, FBI, DEA, CIA or whomever that is your decision, however, I don't think that step is a necessary one to mitigate the association's liability.

As for my daughter selling girl scout cookies, I don't send my kids door to door to stranger's homes. I think it is rude. My kids only sell to people we have a pre existing relationship with.

Brad,

This is in part a board problem because the person at the center is a board member, the HOA president seems to be on this guy’s side, and the problem homeowner has apparently made a number of irrational threats and demands at board meetings. Being a gated community, the homeowners have ceded much of their authority to the HOA. Under common law, the entity that takes control or has control is responsible for the outcome. I would be the first to admit that the HOA would not solely liable, but it is the only party that has big fat insurance policy.

But the board alone is not liable. Anyone who knows that this person is irrational, armed, and threatening to kill people who come to his door has a responsibility to take some sort of action. The difference between simple negligence and gross negligence is that the latter involves knowing of a danger and disregarding it.

Would a prudent person ignore the presence of a paranoid person living in their community who has publicly threatened to kill others and claims to be armed to the teeth? You imply that hiding your head in the sand and leaving is what a prudent person would do.

In east Phoenix a number of years ago there was a delusional man who lived in an apartment complex. He repeatedly complained to the apartment manager that the girl who lived upstairs on the other side of his building was interfering with his TV reception and that he would kill her if she kept it up. The manager ignored the complaints and the delusional man killed the other resident. Her estate sued and the court found the apartment owners liable because they ignored the death threats.

There are three basic elements to the problem described in this thread: irrational person, firearms, and his physical presence. If one of those elements can be altered, the danger is removed.

Filing a police report is a good first step. The chances of the police hauling this guy off for a mental health evaluation on the first call are not good. In Pima County (Tucson), for example, only twenty five percent of complaints are even investigated. Are you aware that the police have no duty to respond to calls for help?

While a police report in a filing cabinet may make you feel warm and fuzzy, it does not remove the danger. Nothing has changed until you somehow remove the person or the firearms from the community.

I do not see this as something that can wait until the next board meeting or waiting to see if some police agency is going to investigate. Hence my advice to call multiple agencies until you find one that will respond. I would not rule out seeking a court order to have the person committed for a mental health evaluation. (This is what the police should do, but the residents may have to seek this on their own.) I would do whatever it takes to eliminate the danger that this resident poses.

While I am glad that your daughter does not knock on strangers’ doors, there are many people who have a legitimate need to do so. Delivery persons and meter readers come to mind, as well as police, firemen, and process servers.

Larry

we will have to agree to disagree. In my opinion the board's responsibility is to inform authorities of the threats which as I understand they have. They do not have the duty to lock this person up, remove him from the neighborhood or have his guns confiscated. Nor do they have the continued responsibility to pester police to act on his original comments. Now, if he comes forward and threatens again they have the obligation to report it. You may not like it, but a lot of people turn their heads and do nothing when they hear threats or even see a crime. It is sad, but it is reality. People make statements from time to time referencing killing or shooting others in fits of rage, doesn't make it right or wrong, just is what it is. It is up to each person to determine how they interpret those remarks. I personally don't think this guy is going to shoot anyone, however, given what I have heard I would call the police, report what I heard and leave it at that. But again that is just my opinion.

In your example the key you need to look at is "repeated threats" and the onwers "ignored them". If they had filed a police report or contacted police then they more than likely wouldn't have been found at fault. Would a prudent person ignore repeated death threats, in my opinion no.

JoanneD1 (Arizona)
Posts: 447

Posted:

Well to all those who may be reading, here is what my community has to contend with. I have had this writer blocked on my computer since he was seated as a board member because he and his writings are so toxic. It was only in casual conversation that my friend on the board asked me about this and I had no knowledge because it was blocked. I find this communication to me SHOCKING! Please keep in mind when reading this that this owner over a speaker phone made statements about having a gun, a right to defend himself and if he shoots some unannounced visitor he will hold the HOA liable.

" It has been brought to my attention that you have been telling folks that you feel threatened by me and that you fear being shot by me. Don’t flatter yourself.

However, this letter is also being sent via BCC to my attorney. Your attacking my character and making libelous assertions will not be tolerated. You are hereby being warned to immediately cease and desist from this inflammatory and damaging conduct or deal with the consequences in a court of law.

Furthermore through this letter and the copies being sent to the board, I am asking the board specifically to invoke the harassment policy as it regards (my name). Her continued conduct is damaging to me and to our community and brings disrepute on all of us."

YIKES, what kind of a world do we live in?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Joanne,

In my opinion, he's contradicted himself. He states he is sending a copy of the letter BCC to his attorney. BCC stands for "Blind Carbon Copy" which means there is no indication on the original who the "BCC" recipients are. By telling you who they are, it is no longer BCC. Why would he do this?

JoanneD1 (Arizona)
Posts: 447

Posted:

Bruce, I understand what you are saying and in my opinion, this all adds up to a bully pulpit kind of thing. I think it is harassment in reverse and I will see what plays out after this executive session. In the meantime, as smart as this man thinks he is, he is leaving me a great paper trail. Love that email!

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JoanneD1 on 01/26/2012 10:02 AM
Well to all those who may be reading, here is what my community has to contend with. I have had this writer blocked on my computer since he was seated as a board member because he and his writings are so toxic. It was only in casual conversation that my friend on the board asked me about this and I had no knowledge because it was blocked. I find this communication to me SHOCKING! Please keep in mind when reading this that this owner over a speaker phone made statements about having a gun, a right to defend himself and if he shoots some unannounced visitor he will hold the HOA liable.

" It has been brought to my attention that you have been telling folks that you feel threatened by me and that you fear being shot by me. Don’t flatter yourself.

However, this letter is also being sent via BCC to my attorney. Your attacking my character and making libelous assertions will not be tolerated. You are hereby being warned to immediately cease and desist from this inflammatory and damaging conduct or deal with the consequences in a court of law.

Furthermore through this letter and the copies being sent to the board, I am asking the board specifically to invoke the harassment policy as it regards (my name). Her continued conduct is damaging to me and to our community and brings disrepute on all of us."

YIKES, what kind of a world do we live in?

Consider the following response:

"Since you have turned this matter over to your attorney it would be a violation of the Rules of the Arizona Supreme Court for us to have further direct contact with one another. All further correspondence or discussions on this matter will take place between your attorney and me, or should I chose to be represented by counsel, between your attorney and my attorney.

"You have no further need to contact me."

I doubt that this guy can afford an attorney and no attorney is going to take this case, anyway. Truth is an irrefutable defense. In addition, as an elected official of your HOA he is a "public figure." In New York Times Co. v. Sullivan, 376 US 254 (1964), the Supreme Court held that public figures cannot prevail in a libel suit unless they can prove that the statements are knowingly false, are defamatory, and made with actual malice. That's a very high hurdle.

Arizona has a statute (ARS 12-752) that allows a defendant to show that a lawsuit was brought against him/her to prevent or deter the exercise of constitutional rights. A party who brings a SLAPP suit - Strategic Litigation Against Public Participation - pays a hefty price. Again, no lawyer would knowingly take on this guy's case.

Since this person is now contacting you directly, I would strongly suggest that you contact you local Justice Court or Municipal Court to get an Injunction to Prohibit Harassment issued against him. There is no charge and the Injunction is served by a police officer, constable, or deputy sheriff.

One question: What is the "Harassment Policy" referred to in the email you received.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By BradP on 01/25/2012 9:48 AM

Larry

we will have to agree to disagree. In my opinion the board's responsibility is to inform authorities of the threats which as I understand they have. They do not have the duty to lock this person up, remove him from the neighborhood or have his guns confiscated. Nor do they have the continued responsibility to pester police to act on his original comments. Now, if he comes forward and threatens again they have the obligation to report it. You may not like it, but a lot of people turn their heads and do nothing when they hear threats or even see a crime. It is sad, but it is reality. People make statements from time to time referencing killing or shooting others in fits of rage, doesn't make it right or wrong, just is what it is. It is up to each person to determine how they interpret those remarks. I personally don't think this guy is going to shoot anyone, however, given what I have heard I would call the police, report what I heard and leave it at that. But again that is just my opinion.

In your example the key you need to look at is "repeated threats" and the onwers "ignored them". If they had filed a police report or contacted police then they more than likely wouldn't have been found at fault. Would a prudent person ignore repeated death threats, in my opinion no.

Brad,

I think we can agree to disagree. I do not take your disagreement with me as anything personal and I hope you take no offense at mine as none is intended. While I find that I sometimes disagree with you, I always look forward to your responses on all threads. Even when you are wrong, you present your arguments well.

Larry

JoanneD1 (Arizona)
Posts: 447

Posted:

Brad & Larry, I am so grateful for your comments. I think you can now understand just how spooky this dude is. I am very tempted to send your suggested comment Larry and I think I will do it through the property manager so there is NO DIRECT contact as that is the LAST thing I want. It is impossible for this man and his wife to correspond on any issue that arises without the threat of litigation. If it weren't so sick, it would be laughable. By the way, I got some information from a great friend that I met on this site. There is a bill that is going to be introduced or already has been that deals with EXACTLY what we are struggling with.....Process Servers in Gated Communities. The number is HB2341. Unfortunately, if passed, it will not go into affect until the end of the yr. Meantime, I am going to put this bully "on notice". I understand that he is going to bring this up at the Feb. BOD meeting in public. This is insanity. Thanks so very much for all of your help. There are lots of folks reading this thread and I hope it has served some purpose for them too. Boards are very POWERFUL and there in lies the importance of knowing the candidates and their agendas. Knowledge is POWER and knowing the documents, in conjunction with the state laws, is very important especially when you have a non-involved manager! I personally called some other gated communities and found no consistency from one to the next as far as process servers go...some alert, others do not. Also found the same in inquiries of process servers themselves. HB2341 takes out ALL the guess work and empowers the Process Server greatly.

JoanneD1 (Arizona)
Posts: 447

Posted:

Well,,,,,,it just keeps getting better. I sent a message to the PM who in turned just emailed me and said that this was a legal issue between two owners and he recommended I put a note into the owner's mail. I returned the email and stated that it IS an HOA issue because of an additional threat to evoke the harassment policy on me. But it does not end there! Our gate let the process server in today UNANNOUNCED and the owner has now written a set of rules that apply to ONLY him and has demanded that he be notified of the process server's delivery attempt AND THE PRESIDENT OF THE BOARD AGREED BECAUSE THE OWNER THREATENED TO SUE THE COMMUNITY!!! There is going to be another executive session next week with both lawyers present with opposing view points. I also learned that I and a potential penalty for harassment against me are going to be on the Feb agenda. Can this be discussed in an open forum? I have a mind to lawyer up and go to the meeting with legal counsel. Now what? I am so limited in what I can do because of my friend who is on the board.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Joanne

Have you even considered you might be to the point of letting ths go?

Thanks

JoanneD1 (Arizona)
Posts: 447

Posted:

John, You bet I have thought about dropping this but I have lived here for 11 years, have some great friends, not to mention almost my largest investment to protect and every person who serves on a board has an obligation to give that service with honesty, without prejudice and for nor personal gain, knowing full well that there may be lots of aggravation but for the good of all. I would hope you feel the same.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Joanne

I agree about helping but I truly think this is now more personal between you and the idiot. Also, what makes you assume you are the guardian angel of the entire complex?

For your own good, I do suggest you drop it.

JoanneD1 (Arizona)
Posts: 447

Posted:

John, I am not as nice as you make me out to be but I have a thing about people's rights and doing the right thing and since I have no real input regarding the mess of the USA, I try to clean up the trash in my own little world. I guess you might call it a flaw in my character and I will be dropping this soon as the idiot will probably be shooting himself in the foot soon. Have a great weekend and I appreciate your input.