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Subject: 2 Board members bring Injunction suit without voting
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GuyM1
(Ohio)

Posts:222


10/25/2017 7:02 AM  
3 Member board and Board president brings Injunction suit with recoveries.
Board President says that himself and 1 other board member agreed with the injunction without a meeting.
3rd member didn't have any knowledge of this.
Unit owners never voted or knew of the action.
Unit owner never was sited or never received a formal letter from the Association on violation.
Many others have violated the same bylaw for years and years.

What are proper procedures?
How much can this cost the Association?
Will a court through this out for not following procedure?
AugustinD


Posts:902


10/25/2017 7:29 AM  
Posted By GuyM1 on 10/25/2017 7:02 AM
3 Member board and Board president brings Injunction suit with recoveries.
Board President says that himself and 1 other board member agreed with the injunction without a meeting.
3rd member didn't have any knowledge of this.
Unit owners never voted or knew of the action.
Unit owner never was sited or never received a formal letter from the Association on violation.
Many others have violated the same bylaw for years and years.

What are proper procedures?
How much can this cost the Association?
Will a court through this out for not following procedure?


1.
Are you saying that two directors had the HOA attorney file suit against a member, without the knowledge of the third director? If so, then here are my thoughts:

2.
When a lawsuit is filed, it is public record at the courthouse. Unit owners should have been informed by the board, if only in financial statements in a footnote. Unit owners do not get a vote on whether to file suit against a member. Filing suit is a board decision. I cannot say that any major law was broken by the board's not informing members. Or at least I do not think this will be relevant in the member's defending him- or herself in the lawsuit. No formal HOA vote having been done to bring suit may be relevant.

3.
The member never having been cited and never having received a formal letter is a denial of "HOA due process." It's a big no-no. Judges expect HOAs to try to be fair and reasonable. Judges also expect HOAs to try to keep disputes out of their courtrooms. Court time is precious and expensive to the taxpayer. I think a competent HOA attorney would not have filed suit without first trying to settle this dispute via the procedures in the HOA's governing documents. If the governing documents are vague, then this does not excuse the HOA attorney from not trying to settle this matter on behalf of the HOA via communications with the member.

4.
If others have violated the same Bylaw and have not been cited, then what is being done to this one member is selective enforcement. The courts do not want to see this either. Still, proving it can be hard. To comment intelligently, I would need more information about what Bylaw or rule has been violated. Can you elaborate about the nature of the violation?

5.
I think a judge would not be happy about seeing this dispute in his or her courtroom, due to 3. and 4. in particular.

6.
Costs for the initial steps of preparing the court complaint, filing, and getting it served would be around $5000 where I am. I am not in Ohio but nor am I on the coasts. What happens next will determine the remaining costs.


AugustinD


Posts:902


10/25/2017 7:51 AM  
GuyM1, I just read your thread at http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/235569/view/topic/Default.aspx . It sounds like there has been plenty of back and forth to try to keep this out of court, so ignore 3. above. To me, I think two legal strategies come into play here. First by far is what your HOA's governing documents say about who is responsible for damage. I think either your HOA's governing documnents are clear that the HOA is responsible for the damage, and so the HOA must have a fool for an attorney. Or your HOA's governing documents are not clear about who is responsible for the damage. The latter comes up a lot in HOA disputes that reach the courts. It sounds like a mess that will take a long time to sort out, and at great legal expense to all. Are you using an attorney?

The second legal strategy involves a defense (in part) of selective enforcement and retaliation.
SheliaH
(Indiana)

Posts:2156


10/25/2017 9:16 AM  
Guy mentioned he had an attorney so at this point, I think he's better off letting the attorney do his/her job and see how it goes, then come back with an update. Any legal questions he has regarding what's legal or not should be addressed to his attorney. We aren't attorneys and conflicting information can muddle things up

Guy, as I said before, it's ok to come here and vent, but remember, you never know who's reading this website, and what might happen if a board member or other neighbor happens to come across it, read all your conversations, put two and two together and figure out it's you? That may or may not bite you in the behind, especially since relations between you and the board appear to be at subzero temperatures, so be careful
GuyM1
(Ohio)

Posts:222


10/25/2017 11:21 AM  
Insurance said they would pay for it but denied the claim because of blocked gutters and rotted siding. Board never voted and the President only went to Lawyer, he just says other board member agree's with him. the third member never new about it until I was served and I told that member. No notice of any meetings by the board to all unit owners of such action. The board had no meeting or a unanimous vote to bring injunction. Members were notified after at the Annual meeting and when minutes were read for all meetings before annual meeting there were no minutes for that topic read. In Ohio board must have a unanimous vote.
JanetB2
(Colorado)

Posts:3959


10/25/2017 10:59 PM  
Posted By GuyM1 on 10/25/2017 7:02 AM
3 Member board and Board president brings Injunction suit with recoveries.
Board President says that himself and 1 other board member agreed with the injunction without a meeting. Injunction generally means they are stopping something ... so what are they stopping and what do they expect to recover? LOL ... If they do not have meeting minutes then your attorney could have a field day.
3rd member didn't have any knowledge of this.
Unit owners never voted or knew of the action. This depends on your State Law ... some states require Owner's to approve becoming involved in any lawsuit.
Unit owner never was sited or never received a formal letter from the Association on violation. What unit owner ... and what violation???
Many others have violated the same bylaw for years and years. Not sure what is being violated.

What are proper procedures? LOL ... Ask your attorney.
How much can this cost the Association? Could cost both sides in the thousands of dollars. Some States via their Laws will award attorney fees to the winning party ... so would depend on who wins and your state laws.
Will a court through this out for not following procedure? Maybe ... but is a question to ask your attorney. You need to consult an attorney and consider a potential counter suit if you have cause. Which from other postings might have cause for foundation issues.

GuyM1
(Ohio)

Posts:222


02/03/2018 10:29 AM  
Hi all...This went to trial finally and just received the ruling the other day. Well first off I dropped the countersuit in January because now we are filing suits after Parking violation suit ends. The new suit will be against the Board and personally against board members. So the Parking suit was won by me on all counts. State law violation on Board no unanimous vote, selective enforcement and the 3 prong test. So thanks for the help now on to the damages to my unit. Oh, by the way, the other sides Attorney was around $20,000 in fee's and they wanted court costs plus damages. Now I'm asking for the same things.
TimB4
(Virginia)

Posts:15724


02/03/2018 5:35 PM  
Guy,

thanks for the update and the congrats on the win.

It's a shame the issue had to go to court. However, when a Board doesn't comply with governing documents and refuses to acknowledge that they failed to do so, there sometimes isn't another option.
GuyM1
(Ohio)

Posts:222


02/04/2018 6:01 AM  
Thanks Tim
Sadly this will cost the Association a lot of money. Sad thing is that money would have paid for all the damages to my unit from water and foundation problems. Then I would have sold and there would be no more truck issues. I wonder what damages the Judge will assess the Association for the two board members that lied that there was a meeting of the previous board which they had no minutes or signatures for the vote. Think the two tried to get that past board member that moved to sign a document but pretty sure she wasn't going to sign a fraudulent document. Sadly one person can destroy a little 9 unit Association by his own vengeance of another member. I would love to live in another Association but this time I'll go through everything before I buy in another one.
JanetB2
(Colorado)

Posts:3959


02/04/2018 9:04 PM  
You need to check and see if your State Statutes are similar to mine. In Colorado if an owner wins a lawsuit against the HOA they cannot be assessed any of the HOA attorney fees. Unfortunately everyone else can ... but they should have stood up to the BOD who was violating the one owner.
GenoS
(Florida)

Posts:2087


02/04/2018 9:28 PM  
What Janet describes is also the situation in Florida. Maybe it's the same in Ohio.
GuyM1
(Ohio)

Posts:222


02/04/2018 10:24 PM  
Thanks, My Lawyer is filing for Attorney Fees, court costs, damages and I did tell him that I saw other states rule that the Association can't assess because it harms the winner.
JanetB2
(Colorado)

Posts:3959


02/04/2018 11:04 PM  
When we had to sue our developers we had one owner with young children and a new baby who stated they could not afford to pay an attorney. My family and another agreed to pay a bit more if they were willing to be included (we figured high probability of winning and wanted them protected). When lawsuit was settled they did not receive money for attorney because they did not participate with money, but it protected them from being assessed for any of the HOA attorney fees. YEP ... developer had to pay their attorney and HOA attorney fees plus what was paid to the homeowners.

GuyM1
(Ohio)

Posts:222


02/05/2018 6:01 AM  
That was great! The sad thing is Attorney firms that represent Associations really don't care about the people in the Associations it's the money. Firms try and stop Legislation that would help Association members have more rights and push for Association boards to have more Hitler like power. This is what is destroying HOA Associations by turning owners against other owners. In my opinion, Boards have to much-uncontrolled power which can lead to dividing Association members which in turn destroys the harmony of the Association. In my opinion, Boards need to work with all owners before heading to a court and if necessary Lawyers should give advice to all members on Litigation pros and cons. Lawyers should tell boards they are stepping over the line and stop them because they work for all members, not the Board or Individual members. If my state of Ohio doesn't have the Assessment rule I'm going to try and set precedence for this for the rights of all unit owners here in Ohio. Boards need to be Transparent and Owners need to be more involved which I would think that just like this case it would have never gone to court and would have been handled in-house as they would say.
JanetB2
(Colorado)

Posts:3959


02/05/2018 10:47 PM  
Hope you succeed ... Agree that HOA attorneys forget that they represent the entire HOA and not just the BOD. That is the biggest issue especially in developer controlled HOA’s. Even when an attorney is supposedly hired to represent the HOA they instead give preference to the BOD or Developer. We argued with our developer, their BOD, attorney, etc. for almost a year showing State Laws violated before finally having to file our lawsuit. In my state if you do not file a lawsuit within one year or less of an amendment then it becomes permanent with no recourse. We tried really hard to avoid that course of action. What is hilarious is what we offered to avoid the lawsuit is essentially what they ended up with plus the costs.
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