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Subject: HOA failed to notify of a decision to fine in time
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Author Messages
JohnP39
(California)

Posts:9


07/11/2018 7:42 AM  
Hi, I was recently fined an absurd amount for a minor violation by my HOA. (The details would make for an interesting thread on their own) I would anticipate an easy victory in small claims court were I to challenge it but would prefer to avoid having to go to that trouble.

Fortunately my HOA made two mistakes. Our bylaws require 15 day notice of a call to hearing. They dated and mailed the notice to me 11 days prior to the closed session hearing. So by our rules I don't believe I was ever properly called to a hearing. I sent a response via email to management company but did not attend. My response included a request to postpone and received no response.

They also didn't notify me of their decision to fine until over 50 days after the hearing. California requires them to notify me within 15 days as I understand it.

I'm planning to list my unit soon and sell it. My thought is that I could let the fine sit on the books until I sell and don't point out their errors until it is too late for them to call me to another hearing, which I assume they would do. Unfortunately I have a very petty and vindictive board that has no problem with selective enforcement.


I was assuming the below section of 1363 invalidates the fine but I would like to confirm and greatly appreciate any feedback.

Thank you, - John

1363 h If the board imposes discipline on a member, the board shall provide the member a written notification of the disciplinary action, by either personal delivery or first-class mail, within 15 days following the action. A disciplinary action shall not be effective against a member unless the board fulfills the requirements of this subdivision.
LetA
(Nevada)

Posts:483


07/11/2018 7:51 AM  
You should have sent you reply to the management company via certified mail with return receipt request. Their silence in not replying to you could mean one
of two things, A. they did not receive or are ignoring your reply or B. they're in the corner licking their wounds.
LetA
(Nevada)

Posts:483


07/11/2018 7:53 AM  
Be sure to save those envelopes with the postmarks and the letters they send you. You should have some regulatory agency in California to file a complaint.
I would advise doing that over going to small claims court.
RichardP13
(California)

Posts:2993


07/11/2018 9:00 AM  
Posted By LetA on 07/11/2018 7:53 AM
Be sure to save those envelopes with the postmarks and the letters they send you. You should have some regulatory agency in California to file a complaint.
I would advise doing that over going to small claims court.



There is no regulatory agency in California to complain to. Small Claims Court is only option, and that is a crap shoot.
RichardP13
(California)

Posts:2993


07/11/2018 9:01 AM  
Here is section on Due Process:

https://www.davis-stirling.com/HOME/Due-Process-Defined
JohnP39
(California)

Posts:9


07/11/2018 9:39 AM  
Thanks. I'm trying to avoid having to go to small claims though this board is really dysfunctional.

Since they never properly called me to a meeting and didn't notify me within 15 days of their decision I'm assuming the fine is invalid.

Looking for any experts who might confirm that.


Thanks
KerryL1
(California)

Posts:5656


07/11/2018 10:39 AM  
Don't know what the right word is, JohnP, but you don't want this "violation" on your unit when you sell. Violations must be disclosed to prospective buyers.

I'd continue to try to work with them by sending a certified letter return receipt requested to the MC and to all directors if you know how to reach them. Make sure you cite the correct cCvil Code per Richard's post. Request another hearing--politely. Attend this time!

Btw, gthe alleged violation and the fine mount are listed for all Owners to read, right? If not, that's another error they made.
CjC
(Maryland)

Posts:136


07/11/2018 10:44 AM  
Do you know for sure that they actually voted on the fine at the hearing? if they postponed it looking for more info etc (or any reason) maybe they did notify you within the right amount of time. Since you weren't at the hearing, who knows?
JohnC46
(South Carolina)

Posts:7695


07/11/2018 11:33 AM  
John

Do you disagree with the fine, regardless of timing/procedures? How much is the fine for?
JohnP39
(California)

Posts:9


07/11/2018 12:05 PM  
I agree. Worst case I would pay the fine under duress and go to court where I would prevail based on the merits if not the technicalities.

I don't want to sound like the crazy owner but this BOD is really quite hostile. If I were to request another hearing I am confident they would ignore all reason, as they did with the first case, and fine me the same. There is no working with this group. There is an effort by others now to recall them that it looks like will eventually succeed.
JohnP39
(California)

Posts:9


07/11/2018 12:08 PM  
Yes, I was able to verify that. I did confirm with the assistant to the manager (she is sympathetic and not a fan of the BOD) that they did in fact decide this far outside of the 15 days they are required to notify me per CA law.

Also the call to hearing was only 11 days before the hearing. Bylaws require 15. That is easily proven by the dates on the letter calling me to the hearing.
JohnP39
(California)

Posts:9


07/11/2018 12:20 PM  
I suppose anyone fined by an HOA would disagree with the fine and this is no exception. 500 dollars for a parking violation.

Essentially the BOD changed the valet service from 24/7 to one where they have no valet 4 times a day while the valet on duty goes to lunch. They didn't inform anyone of the change in advance. No mailings, email or postings in the building. When I arrived home the day of the change the valet was not able to grant me access to the building. He told me to leave my car outside the locked gate and he would move it in 10 minutes when his break was over, which he did.

The president of the HOA learned that my car was left there and decided to make it an issue. We have had run-ins in the past and I'm sure he was excited at the opportunity to fine me.

I did respond to the call to hearing, explaining that this was obviously a one time issue as I wasn't aware of the new valet policy at the time and I am now. There is absolutely no chance this would happen again so there was no need for such a severe fine. I have served on BODs in the past and my experience would have been to fine someone and suspend the fine based on no repeat offenses in the future.

I know I sound like the criminal swearing innocence but this BOD has serious issues. The president I am sure took great delight in fining me.

To justify the excess sum he used the "safety issue" fine schedule that ranges from 500-5000 dollars.

In short I'm sure in small claims this would be found to be excessive and unreasonable. I'd prefer to avoid that hassle and have it cleaned off the books because they didn't follow the rules.
JanetB2
(Colorado)

Posts:4151


07/11/2018 12:26 PM  
As LetA also noted when you are dealing with potential legal type issues it is best to send all correspondence “Certified Return Receipt”. I would recommend sending them such a letter noting the exact dates they sent information to you, the dates you received and the text from the Statutes and your Governing Documents violated. Note that you want the improper fine removed within 30 days and a proper hearing notification, if they wish to continue to pursue the matter. And if they refuse to follow the State Laws and Governing Documents that you will then have no choice but to seek an attorney to protect your property rights.

Then sit back and see what they say. When they have to sign for the letter it will hopefully get their attention that you are tracking them and they need to send a proper response. When you get the signed card back be sure to staple to your copy of your letter sent.
JanetB2
(Colorado)

Posts:4151


07/11/2018 12:29 PM  
Also, be sure to put your version of what happened in the letter ... and can or will the valet verify???
KerryL1
(California)

Posts:5656


07/11/2018 1:02 PM  
Yes, JohnP: Per my, LetA and now Janet, send the letter. Also include the first note of the new valet procedure that was distributed to residents. It's cheaper & less time consuming that any other alternative.

IMO, $500 is excessive and our urban high rise a has a fine $100 for parking violations. We do often waive the fine if no repeat violations of the same type in 6 months. It does help if the violator is contrite an also if they attend the hearing. If repeated, our fines can double.
RichardP13
(California)

Posts:2993


07/11/2018 1:04 PM  
Posted By JohnP39 on 07/11/2018 12:05 PM
I agree. Worst case I would pay the fine under duress and go to court where I would prevail based on the merits if not the technicalities.

I don't want to sound like the crazy owner but this BOD is really quite hostile. If I were to request another hearing I am confident they would ignore all reason, as they did with the first case, and fine me the same. There is no working with this group. There is an effort by others now to recall them that it looks like will eventually succeed.



DON'T ever think you can take a matter to small claims and win.

I took a management company to court on behalf of my client because the other MC refused to turn over all the records. They showed one sheet of paper where a courier had signed for a pick up and I had 75 pages showing what was delivered and all the documents that were missing. I lost, because the judge didn't think was important. Now I have to spend $20K of association money to get records and file their taxes.
JohnP39
(California)

Posts:9


07/11/2018 1:21 PM  
Normally, and with a BOD that was accepting of reason, I would agree. However, as noted two members of the HOA have no problem abusing their positions to force me to pay an unreasonable fine. The other members defer to them. I am 100 percent confident that regardless of the facts they would come to the same conclusion.

While I was unable to attend the original hearing I did present a write up detailing the facts which they ignored and I was contrite. I also did present the fact that the new policy was shared with the residents via email only the day after it was implemented.

When I served on boards we did as you suggested. Waive the fine if no repeat offense. That is an appropriate method of discouraging behavior. Unfortunately this isn't about right and wrong or enforcing rules, it is about attacking me. It really is that bad.

I have been able to review a former board members minutes and noted that not once has anyone ever been called to a meeting over a parking violation. Many friendly and appropriate warnings have been distributed, primarily for not displaying one's permit.

Fun story, one day I parked a different car (that was properly registered with HOA) in the garage instead of my usual vehicle. The hostile BOD president was in the garage and saw me. I was then sent a violation letter and call to meeting with threat of a fine. The BOD relented when I provided proof that this was not a violation. My point being I have been subject to selective enforcement and the BOD president has looked for every opportunity to go after me. Nobody has ever been threatened with a fine for parking issues but me. Twice now.

JohnP39
(California)

Posts:9


07/11/2018 1:24 PM  
I would agree. Small claims judge'\s aren't always willing to really understand the case or the facts in my experience. While I should prevail on merit if I took to court it is far easier to prove that I wasn't properly called to the meeting or properly notified of the outcome.
MelissaP1
(Alabama)

Posts:7611


07/11/2018 5:52 PM  
I am sorry but what are you suing for? You didn't pay the fine. So you have no damages to sue for. Court ONLY makes you "Whole". So if you want to sue, then you have to pay the fine, and sue the HOA for that money. Otherwise, I don't get what you are suing for neither will the court.

Former HOA President
JohnP39
(California)

Posts:9


07/11/2018 5:56 PM  
Correct. My goal is to get the HOA to drop the fine since it wasn't properly addressed. If they refused to waive it then I would pay it under duress and take them to court.

My whole goal is to not go to court and the fact that the fine assessed didn't follow the bylaws or CA law I would hope to not have to pay it at all.
JohnC46
(South Carolina)

Posts:7695


07/11/2018 6:15 PM  
John

I ask again:

Do you disagree with the fine, regardless of timing/procedures? How much is the fine for?
JohnP39
(California)

Posts:9


07/11/2018 6:32 PM  
Sorry, I did reply above but maybe it didn't format correctly. 500 dollars

"Essentially the BOD changed the valet service from 24/7 to one where they have no valet 4 times a day while the valet on duty goes to lunch. They didn't inform anyone of the change in advance. No mailings, email or postings in the building. When I arrived home the day of the change the valet was not able to grant me access to the building. He told me to leave my car outside the locked gate and he would move it in 10 minutes when his break was over, which he did.

The president of the HOA learned that my car was left there and decided to make it an issue. We have had run-ins in the past and I'm sure he was excited at the opportunity to fine me.

I did respond to the call to hearing, explaining that this was obviously a one time issue as I wasn't aware of the new valet policy at the time and I am now. There is absolutely no chance this would happen again so there was no need for such a severe fine. I have served on BODs in the past and my experience would have been to fine someone and suspend the fine based on no repeat offenses in the future.

I know I sound like the criminal swearing innocence but this BOD has serious issues. The president I am sure took great delight in fining me.

To justify the excess sum he used the "safety issue" fine schedule that ranges from 500-5000 dollars.

In short I'm sure in small claims this would be found to be excessive and unreasonable. I'd prefer to avoid that hassle and have it cleaned off the books because they didn't follow the rules."
RichardP13
(California)

Posts:2993


07/11/2018 7:19 PM  
Posted By MelissaP1 on 07/11/2018 5:52 PM
I am sorry but what are you suing for? You didn't pay the fine. So you have no damages to sue for. Court ONLY makes you "Whole". So if you want to sue, then you have to pay the fine, and sue the HOA for that money. Otherwise, I don't get what you are suing for neither will the court.



Sorry, it is time to call BS on you. You are an idiot!
MelissaP1
(Alabama)

Posts:7611


07/11/2018 7:39 PM  
Takes one to know one... And your the best at recognizing idiots... Grow up Richard and just shut up. Tired of dealing with your crap. Thanks.

Former HOA President
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