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Subject: Can I sue Board Members of my HOA
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Author Messages
LoloJ
(Texas)

Posts:49


04/22/2019 1:38 PM  
@John,

Here's our Bylaws - please see article VII. as I mentioned before the President of the board resign the night I voiced my concerns and displeasure.

1 of 2 uploads.


Attachment: 1422383844671.pdf
Attachment: 1422383846254.pdf

LoloJ
(Texas)

Posts:49


04/22/2019 1:39 PM  
@John 2 of 2

Attachment: 1422391147858.pdf
Attachment: 1422391147829.pdf

LoloJ
(Texas)

Posts:49


04/22/2019 1:40 PM  
I got it ROYALP --- "RESIGNED" ....
MelissaP1
(Alabama)

Posts:8087


04/22/2019 3:43 PM  
Funny I always thought Lolo was a woman this whole time. Who knew it was a color thing I should have noticed. The words are in "black and white". I should have known the poster was one of them... LOL! Guess cause I am from Alabama I just ooze racism... LMAO! (I was a founding member of the black student alliance at my college...)

Well decided to just wish good luck with the lawsuit claim. I am sure that will go well for you. Sounds like you thought this through and got the best free advice from an online lawyer. What could go wrong? Oh they will see your a black man when you show up to court so the court could be racist...

Former HOA President
NpS
(Pennsylvania)

Posts:3245


04/22/2019 4:34 PM  
Posted By JohnS111 on 04/21/2019 3:39 PM
NpS, as a lawyer, I really discourage you from viewing involvement by a lawyer as meaning that someone is ready to do battle, and treating things as hostile once a lawyer gets involved. That just antagonizes people and runs up legal bills.

Until the lawyer says, "We will sue...", then the lawyer may well be there just to help her client understand the rules and to try to broker a friendly arrangement. It's much better to treat everyone as a potential friend, and every situation as friendly, until it's clear that it isn't.

I've been in plenty of situations where I or a client had only good intentions, but the other side saw "Lawyer" and assumed the worst, and became hostile, and things turned south, usually resulting in more costs for them, not me.




I look to your earlier post John:

Posted By JohnS111 on 04/20/2019 5:54 PM
Threatening litigation and delving into records may be just as effective, and less expensive.




IMO, that's "preparation for battle" talk. It's not that you intend to pursue things in court, or even file a claim. It's that you are weighing in your mind the cost to client and the cost to adversarial party. That's looking for advantage. That's looking for leverage. That's legal gamesmanship. That's what litigators are trained to do. You did it again when you talked about the Board not being represented at small claims court and the limitation of notice requirements. All calculated to navigate the process to the advantage of one side only.

I also look to Steve's response:

Posted By SteveM9 on 04/21/2019 7:02 PM

I've been in plenty of situations where I or a client had only good intentions, but the other side saw "Lawyer" and assumed the worst


Well, many unpaid.... HOA volunteers see "lawyer" and think, I'm way over my head and this lawyer obviously knows a heck of a lot more than me about law because I'm not a lawyer. When you dont know what to do, you hire another lawyer to talk to the other lawyer.




Steve just described many Board members I know in many Associations. The word "lawyer" can be threatening to ordinary people who aren't familiar with the game. The explanation that there's D&O insurance may not alleviate the unwanted stress for individual volunteer Board members.

I am not attacking the profession as a whole. Yet, I wholly reject your notion that there is no threat until the magical incantation "We will sue" is delivered. As I see it, the three letters "Esq." is a magical incantation all by itself, and it is commonly wielded to have that particular effect. At minimum, it raises questions for the Board members: "Do we need to involve the HOA attorney, and at what cost?" In some Associations, going to the lawyer is mandatory. In others, it's the "safest" thing to do personally even when it might not be economically "safest" for the Association.

As I said in my post, my comments are not for the pillaging Board members who take unfair advantage of their neighbors. My post was directed toward those who are slugging it out, doing the best they can with limited information, skills, and resources - and operating in a fishbowl.

Your comments remind me of a letter some years ago from a NJ lawyer to our PA HOA. We responded that we take his "threat letter" very seriously, that we were shutting off all communication to his client, and we were directing all future communications to him. He countered that there was "no threat" in his letter- He was just informing us of the relevant law. Really?? We were exempt from that particular law. He cited it because, as a Federal law, it allowed a NJ lawyer to send a letter to a PA Association, a way to circumvent PA's laws against out-of-state lawyers practicing where they are not licensed. Pure gamesmanship.

The Federal law he cited allows treble damages. And that's part of the gamesmanship as well. Lawyers are drawn to it for obvious economic reasons. I find no fault in his attempt to bring us in under the net of that law. That's what he's trained to do. I find fault in his disclaimer that there was no threat intended. He told us about all the Associations and individuals he had represented as if to give the impression that he was even handed in his approach. And that again was gamesmanship. When asked what his Association clients would have done given the facts we were dealing with, he danced, but never gave a substantive answer. So no. I reject the proposition that a lawyer representing one side of an argument is "merely" blah-blah-blah. It's for effect. It's intended to apply pressure or heighten a sense of risk.

Finally, I'll say this. The lawyer's letter is not usually the first threat received by the Association. The owner often threatens first. A well functioning Board considers the underlying issue in the owner's complaint, makes a decision and considers an appeal if one is made. Sometimes, however, Boards get bogged down, and can't make a decision or become overwhelmed with too many issues. Sometimes, the complaint is a laundry list of disappointments that the Board would have liked to resolve if they had unlimited time, funds, and access to resources. Sometimes the lawyer writing the letter introduces some new information, but in my experience, that's very rare.

If things gets bad enough, people will hopefully step up to replace ineffective Board members. The true test is whether other homeowners will vote for you because you have an agenda for the future of your community that's consistent with what they want for themselves.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
JohnS111
(New York)

Posts:70


04/22/2019 4:47 PM  
NpS, you’re right in your analysis. People shouldn’t be intimidated by lawyers, though. We’re just normal people who have a law degree (and nearly nothing practical is learned through a law degree, at least where I went to school). I’m not a litigator, too, but anytime I question anything my HOA does, the board gets all nervous just because I’m a lawyer. It’s silly.

So I hope that you at least won’t be intimidated by lawyers and won’t take any legal communication as a threat, even if others do.

MelissaP1
(Alabama)

Posts:8087


04/22/2019 5:27 PM  
The reality is that too many people watch lawyers on TV and have no clue on how court system really works. They assume you need things like a "Retainer" to hire a lawyer. That isn't true. They hire the wrong type of lawyer for what they need. HOA's are not Real Estate they are Corporations. Someone yells at them "I am going to sue" well that must mean I must run to the lawyer to consult. Must "Protect myself or the HOA"...

HOA's spend more money on "Prevention" of lawsuits than an actual lawsuit. Well so and so says they are going to sue so I must consult a lawyer... Why? It's a threat and just words. Even if I got a letter in the mailbox, I would not jump and run to the nearest lawyer to respond. However, people are people and they just go running to a lawyer when there is nothing to fear.

Board member's ONLY requirement is to be an owner. That's basically it. (Good standing may or may not be required). So your not dealing with educated people who are familiar with laws or their own HOA documents. They are common people who ASSUME must go to a lawyer if facing a lawsuit...

So this is why even the threat or whisper of a lawsuit sends many HOA's into an endless loop. For me, I look at the worse case scenario. What if they win? Well since court only makes one whole, I just look at the expense we'd have to pay in the end.

I don't knee jerk react to a lawyer threat or communication. All my lawyers were more scared of me than I of them. They knew I knew better. So used them like legal tools since I am NOT a practitioner of the law. It's why we have lawyers is it not?

Former HOA President
NpS
(Pennsylvania)

Posts:3245


04/22/2019 6:07 PM  
Posted By JohnS111 on 04/22/2019 4:47 PM
NpS, you’re right in your analysis. People shouldn’t be intimidated by lawyers, though. We’re just normal people who have a law degree (and nearly nothing practical is learned through a law degree, at least where I went to school). I’m not a litigator, too, but anytime I question anything my HOA does, the board gets all nervous just because I’m a lawyer. It’s silly.

So I hope that you at least won’t be intimidated by lawyers and won’t take any legal communication as a threat, even if others do.




Not intimidated. Not threatened. Not impressed. Just aware of the practical realities.

We have homeowners who are non-confrontational by nature. Some make great Board members. Unfortunately, we lose more than we should prematurely because the drama gets in the way of getting things done.

There are valid reasons why a judge will go out of her way to shield an untrained person from those skilled professionals who could take unfair advantage.

As a lawyer Board member, you are subject to a higher standard than your non-lawyer peers. There's valid basis for that as well.

In this little chit-chat, you and I understand the game and have drawn our lines on what's out-of-bounds in different places. I'm not concerned for you or me personally.



Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
LoloJ
(Texas)

Posts:49


04/22/2019 6:37 PM  
Most people will contact an attorney as a last result, as in my case.

I requested receipts, vendors names, ect, more than a month ago, unfortunately onceI felt there were no movement
I then contacted an attorney.

I do have a bit of good news, I was contacted this morning (VIA email) by the management company, they informed
me that they are working on my request, and I should have everything requested soon. And believe it or not
the attorney did send out a certified letter, although he never sent me a copy as I requested.

Again I appreciate the input with the exception of a few, and my apologies again, for the unnecessary strange course
this conversation took.

All the best,
Mr. Lolo.
AugustinD


Posts:1591


04/22/2019 7:25 PM  
Posted By NpS on 04/21/2019 12:45 PM
The policy we've established is simple. We refuse to communicate with a homeowner and the Attorney. One or the other, but not both at the same time. So - As soon as a lawyer is introduced into the mix, that lawyer is added to our email distribution list. Instead of the homeowner receiving HOA communications, the lawyer gets everything. The owner can get all information from the attorney.


This practice by a HOA to me is worse than gamesmanship. To me, it is game-playing. It is designed to run up the legal bills of a member who is unhappy with xyz. Instead of focusing on whether the member has a legitimate complaint, it appears tyranny is used to keep people from complaining and, when a rogue board fails to respond, appropriately elevating their complaint. Also problematic is that, if the HOA attorney is involved, and the complaining HOA member is represented by counsel on xyz issue, then under the Rules of Professional Conduct, the HOA attorney is allowed to communicate only with the member's attorney when it comes to xyz issue.

For what it is worth, I condemn that sick attack on LoloJ at the end of Melissa's last post.

LoloJ, thank you for the update. This is great news.
LoloJ
(Texas)

Posts:49


04/22/2019 8:02 PM  
Augustine, thank you, I appreciate your kind words...
MelissaP1
(Alabama)

Posts:8087


04/22/2019 8:19 PM  
And I do not like being called a racist. So there is that when nothing I had said or others regarded race at all until the OP put it in. Done with that because racism is a mean and disgraceful thing to be called just based on nothing at all but your own insecurities. Will NOT put up with such a comment directed towards me. if you look back the OP did nothing but insult me directly. So going to put what I got back out. Reflections hurt do they not?

Former HOA President
NpS
(Pennsylvania)

Posts:3245


04/22/2019 8:50 PM  
Posted By AugustinD on 04/22/2019 7:25 PM
Posted By NpS on 04/21/2019 12:45 PM
The policy we've established is simple. We refuse to communicate with a homeowner and the Attorney. One or the other, but not both at the same time. So - As soon as a lawyer is introduced into the mix, that lawyer is added to our email distribution list. Instead of the homeowner receiving HOA communications, the lawyer gets everything. The owner can get all information from the attorney.


This practice by a HOA to me is worse than gamesmanship. To me, it is game-playing. It is designed to run up the legal bills of a member who is unhappy with xyz. Instead of focusing on whether the member has a legitimate complaint, it appears tyranny is used to keep people from complaining and, when a rogue board fails to respond, appropriately elevating their complaint. Also problematic is that, if the HOA attorney is involved, and the complaining HOA member is represented by counsel on xyz issue, then under the Rules of Professional Conduct, the HOA attorney is allowed to communicate only with the member's attorney when it comes to xyz issue.




Hi Augustin

I don't see much difference between gamesmanship and game-playing other than the fact that one is a skill and the other is an activity (that could but shouldn't necessarily be given a negative interpretation).

As I said earlier in this thread, by the time the lawyer's letter arrives, the Board has usually heard the owner's complaint, made a decision, and considered any appeal that the owner might have made. From my experience, the lawyer's letter rarely adds any new information.

We started the practice because a homeowner who, after getting his lawyer involved, wouldn't stop his direct attack. We'd get 3-4 emails from the owner for every letter from the lawyer. The owner demanded that we answer to him and his lawyer on every issue either one of them raised. He even started bragging to his neighbors about how he was sticking it to the Board. We said no, not going to happen. Show us where the Board acted outside its authority or treated someone else in the same situation as you differently, but sending the message that you won't let up until the Board gives in doesn't cut it.

Before applying terms like "rogue" and "tyranny" which are loaded with potential bias, I would question whether the owner's due process rights were respected and whether the Board acted within its authority. Those are the more relevant and measurable issues IMO.

Not sure what your issue is with Rules of Professional Conduct. If the owner's lawyer approves direct contact from HOA lawyer to owner, then no violation.

If you would like to provide a sample "xyz" complaint, I would be happy to discuss your concerns further. Details matter.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
AugustinD


Posts:1591


04/22/2019 8:54 PM  
Melissa, As far as I am concerned, the OP was contrite about certain comments he made. He explained that he was frustrated, and that this frustration bubbled over. It sounded human, and I think it is. Who has not gotten frustrated and wrote things that maybe they wish they had not? The OP was key to getting this exchange back on track. The next time I get angry with someone, I hope I recover with as much class as LoloJ did.
AugustinD


Posts:1591


04/22/2019 8:55 PM  
NpS, I too think these things need to be handled case by case.
MelissaP1
(Alabama)

Posts:8087


04/23/2019 4:51 AM  
What class? Because he didn't call you racist? I am sorry but don't care how "frustrated" you are. You don't just randomly call someone "Racist". Especially if no where there was ever a mention of race or indication of it. Matter of fact, I thought they were a woman.

So I am not going to have that term be used in context of advice I or anyone else is giving. It's not like "Oh your black so I must give you different advice than every other human on the planet." It doesn't work that way. It's based on your actions and reactions. NOT the color of your skin or sex you are. If you keep playing that card, people have every right to be pissed off.

Former HOA President
RoyalP
(South Carolina)

Posts:732


04/23/2019 6:46 AM  
..... verily, thou dost protest too much .....

GeorgeS21
(Florida)

Posts:1209


04/23/2019 7:07 AM  
Everyone knew this one was going down a rabbit hole with an angry OP trying to get even for real or perceived issues in some way.
AugustinD


Posts:1591


04/23/2019 8:01 AM  
Melissa, after reviewing the thread, I think you are putting words in the OP's mouth. He stated, "Being a black man in America I've seen enough." I feel you and another hoatalk[dot]com participant twisted this around grotesquely. The appearance to me is that you did not like his saying he was 'black and had seen plenty.' I would have ignored this remark and stuck with constructive advice. From studies, I believe the OP's remark has one helluva lot of basis in fact. As far as I am concerned, it did trigger a few people here. But by the latter, I mean this is their own fault for reading the remark a way I do not and would not have read it.

George, I think this forum would not exist if there were not anger over HOA issues. To me, addressing the anger constructively ought to be part and parcel of getting to the substance of solutions. This is because to me, such an approach gives the forum as a whole the best chance of causing substantive change. I will grant you that when some factions of the group play 'bad cop,' I think it often takes some load off anyone playing 'good cop.'

I know this sub-topic is going nowhere. Just saying.
LoloJ
(Texas)

Posts:49


04/23/2019 8:28 AM  
Augustine, you are truly the best!

Its exactly what I meant and as difficult as I tried explaining it, it still fell on deaf ears;
and right again on your reply to George - we come here because we are angry and confused about the process.

As I said earlier, the advice I took from some (in this forum) is priceless, and I walk away more educated than when I entered and for that, again, I am truly grateful.

- all the best,


LoloJ
(Texas)

Posts:49


04/23/2019 8:54 AM  
Final:

The problem walking into a forum like this, a new person is hit with so much from all different sides, he/she doesn't know where to start. So in my case. I listened carefully to the person(s) that had no AXE to grind, who offered me options, I chose the one(s) that aligned with what I really wanted to do, before entering.

I just can't set silently, while watching corruption takes place (under my eyes) I had my home built in 1999 fresh out of college, and I will not allow people to take advantage of the trust we have bestowed in them. So where-ever that leads me, is where I will go - good or bad.

all the best,
LoloJ
(Texas)

Posts:49


04/23/2019 9:39 AM  
This will be my final message.

Part of my Anger:

The 1st photo is the property across the street - very well kept.

The 2nd photo is our property, there are many areas in the wall - just like this.
LoloJ
(Texas)

Posts:49


04/23/2019 9:42 AM  
Try this once more --- images attached

Attachment: 1423424556071.pdf

NpS
(Pennsylvania)

Posts:3245


04/23/2019 10:20 AM  
Thanks for the photos Lolo.

Annoying? Absolutely.

Likely to get the kind of relief you seek in small claims court? I don't think so.

A small claim judge's authority is limited to actual monetary damages, not a perceived loss in value.
What you're really looking for is injunctive relief (getting them to fix the wall). Not in the small claims court judge's toolbox.
You're also seeking retribution for failure to act properly. Also not in the small claims court judge's toolbox.

You can certainly pursue the small claims court path. But I suggest you get a better understanding of the jurisdictional limits of your small claims court system first.

Best of luck.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
AugustinD


Posts:1591


04/23/2019 12:57 PM  
LoloJ, if you are still about, then maybe check out the guide at https://www.texasbar.com/AM/Template.cfm?Section=Consumer_and_Tenant_Rights1&Template=/CM/ContentDisplay.cfm&ContentID=24859 . Per this guide, NpS is correct that the Texas Justice Court can only award money. I also agree with NpS that what you want is injunctive relief. This means you are seeking an order from a judge, telling the HOA to take care of its common areas, and in this case, the wall, pursuant to x section of your HOA's Declaration.

Below is how I would proceed. If it sounds pedantic, please excuse. It is hard to tell what a person's background is with HOA law based on posts at an internet forum. Also I am not clear on exactly what all your attorney sought from the HOA in his communication with it.

-- Go to the "Governing Documents" section of your HOA's web site. Look for a document called "Declaration," "Covenants" or similar. This document is usually different from the Bylaws.

-- Find the section of the Declaration or Covenants that defines common areas or common elements. Write down the specific section number that says that the wall in question is the HOA's responsibility to maintain.

-- Now find the section of the Declaration or Covenants that talks about the 'maintenance responsibility' of the HOA. Make sure its clear that the HOA has the maintenance responsibility for the wall. Write down the section number.

-- Prepare a short letter to the HOA stating the following: "Dear Association, Attached is a picture of the wall behind my house. It is in great disrepair. Pursuant to the Declaration Sections ____ and ___, the Association is responsible for maintaining the wall. Please let me know within ten days when you will repair this wall. Thank you, ________________, [insert address]"

-- Report back here.

Be aware that judges expect attorneys to exhaust all possible out-of-court options to settle disputes. I expect that at least six months of back-and-forth will be needed between your attorney and the HOA's attorney before your attorney will give any consideration to going to court.

If possible, your providing the Declaration or Covenants to the group here would be most helpful. People here know how to read them quickly and find the pertinent sections and maybe help you with your (politely, factually stated) arguments to the HOA.
LoloJ
(Texas)

Posts:49


04/23/2019 1:37 PM  
Thanks NPS and Augustine,

I will upload the other docs, I only sent the first ones because it pertains to Board Members spending an enormous amount of money on Holiday decorations, and pool maintenance to the tune of $39,000 a year-I noticed a few tints green algae in the pool three weeks ago.

LoloJ
(Texas)

Posts:49


04/23/2019 1:55 PM  
Augustine,

Right now we're waiting on their Paper Trail.

I have asked several times about the wall. They say they 're still taking bids (7 yrs later). So I'm thinking I should hold off on requesting more information until they release all vendors, bank records (checks) etc. I think this may tell me why our wall haven't been repaired. I think I'm going to back off a bit and take a breather, while I continue to absorb the advice given, patience is not my virtue but may be the most important thing I learn through this frustrating process.
AugustinD


Posts:1591


04/23/2019 2:49 PM  
LoloJ, thank you for elaborating and repeating a bit (that I had not quite understood) from your first post. Your plan makes sense to me. Based on what you have posted so far, I would be pretty angry that the wall was in a state of disrepair in several places for several years.
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