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Subject: Neighbor sued HOA and emailed the whole HOA with a litigation update
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PaulJ6
(New York)

Posts:382


06/22/2019 2:06 PM  
We have a neighbor who's embroiled in a dispute with our homeowners' association. We have a community-wide email list, and the neighbor has gone after the board a few times by sending out HOA-wide emails.

The neighbor is a lawyer, and his emails are very professional and simply point out errors and mistakes by the board, in a very lawyerly way, typically by citing provisions of our state's law and the HOA's bylaws that the board has violated. The neighbor seems to win each time, as right after he emails, the HOA's counsel and the board correct whatever they're doing. Clearly the neighbor and the board hate each other, but it's all very professional and lawyerly.

Last year, we were surprised to learn, by email from the neighbor, that he had filed a lawsuit against the board. I don't know the full details, but another resident found the court filings and they alleged a few things and they were a "real" lawsuit, although the neighbor later withdrew the lawsuit after the community voted most of the old board out of office.

Now the neighbor emailed the community again, stating:

(1) The neighbor re-started litigation.
(2) The HOA's counsel did not appear at a court hearing.
(3) The HOA was discovered to have included false information in government filings. (Unsure which ones.)

The latest email also included:

(4) Instructions for the board to notify all owners of the litigation and ensure that it had sufficient funds for litigation losses.
(5) A biographical summary of the neighbor (including his high-end academic pedigrees and lengthy experience as a prosecutor and senior litigator), and stating that he's not yielding, period- end of story.

I'm not sure what to think. Clearly this is going to be a fight that is going to go on for a long, long time, unless one of the sides just drops it- and the neighbor insists that he won't.

Has your HOA seen something like this happen? If so, how did you handle it (either as a board member or as a resident)? I don't know enough about the case to know who's right or wrong, but I do know that it's the neighbor who has been the plaintiff and the board has been the defendant.

Can we, as owners, call a special meeting of owners and vote to instruct the board about what to do?
MelissaP1
(Alabama)

Posts:8764


06/22/2019 2:12 PM  
Your neighbor may need to realize that suing their HOA is suing themselves and their neighbors. It is the consequences of their actions. So theme stating that the HOA can't afford their lawsuit means they are also damaging themselves. Something I may point out in an email conversation. Maybe put things in a better perspective.


Former HOA President
PaulJ6
(New York)

Posts:382


06/22/2019 2:15 PM  
Thanks. Yes, one other person responded to the neighbor's email before, pointing out that a lawsuit puts costs on all of us.

The neighbor said that if the board didn't want to impose costs on people due to the lawsuit, then it should settle the litigation.

So that argument didn't sway the neighbor, although it's certainly a valid position.
JohnC46
(South Carolina)

Posts:8892


06/22/2019 2:17 PM  
Paul

He beat the BOD before so maybe they will run and hide this time.
PaulJ6
(New York)

Posts:382


06/22/2019 2:27 PM  
Posted By JohnC46 on 06/22/2019 2:17 PM
Paul

He beat the BOD before so maybe they will run and hide this time.




He did. The former board president came in 7th out of all 7 candidates for the board in the last election.

But the litigation is still going on. It would be nice to get an impartial view of this, but the board's counsel will blame the neighbor and the neighbor will blame the board, so who knows what's happening.
JohnT38
(South Carolina)

Posts:135


06/22/2019 2:35 PM  
To me the real question is why is the board continuously getting themselves in trouble? It sounds like from what you are saying is that the neighbor is normally right. Considering that he is a known problem, I would think the board would be dotting every i and crossing every t so these issues don't happen.
PaulJ6
(New York)

Posts:382


06/22/2019 2:38 PM  
Posted By JohnT38 on 06/22/2019 2:35 PM
To me the real question is why is the board continuously getting themselves in trouble? It sounds like from what you are saying is that the neighbor is normally right. Considering that he is a known problem, I would think the board would be dotting every i and crossing every t so these issues don't happen.




One of my friends asked one of her friends who's a board member about what's going on, and my friend was told that "the board's counsel advises that the board must act as it should in order to protect against liability". But the result is that litigation is ongoing and the board and board members individually keep getting sued, so I don't understand that.
NpS
(Pennsylvania)

Posts:3921


06/22/2019 3:23 PM  
IMO, you're getting played by the lawyer-owner.

I've dealt with similar issues in the past, but usually with non-lawyer owners.

My thoughts:

1. Don't accept what anyone else tells you about the status of things. If you want to know what's going on, then go to the courthouse, get copies of the legal filings, and read them.
2. It's the job of lawyer A to say that lawyer B did something wrong. Doesn't make it right or wrong. Might not affect the outcome. Lawyer B might have to refile a document to make a correction, but that's not a fatal defect to the case. Happens all the time.
3. Our email list is owned exclusively by the HOA. No one is allowed to use it for anything other than official HOA business. I called a special meeting just on this issue. By mistake, we published our email list, and an angry owner sent her complaints to the people on the list. Unacceptable for several reasons:
- Many people don't want their email addresses published
- If someone is working off an old list, they could send emails to people who had requested to be removed from our list.
- The big one for me - and the reason for the special meeting - the owner was sending emails selectively - excluding those people who she knew had a different opinion.
4. Without knowing what the issue us, you have no basis to judge the BOD's actions.
5. I would be annoyed with the lawyer-owner for not telling you what the underlying issue is. He can grouse all he wants about the things they did wrong, but IMO he's keeping you in the dark about the important stuff.
6. You can have all the credentials in the world, but some slugs are still slugs after all that spit and polish.
7. The BOD member you spoke to was probably instructed by the HOA lawyer not to speak about it - Which is appropriate.

Sikubali jukumu. Read all posts at your own risk.
BassG
(Texas)

Posts:13


06/22/2019 3:26 PM  
Does your governing documents have a section that provides the standards of conduct and discusses liability and indemnification? That normally talks about how the board should conduct themselves and their business decisions to keep themselves out of lawsuits.
PaulJ6
(New York)

Posts:382


06/22/2019 3:35 PM  
Posted By BassG on 06/22/2019 3:26 PM
Does your governing documents have a section that provides the standards of conduct and discusses liability and indemnification? That normally talks about how the board should conduct themselves and their business decisions to keep themselves out of lawsuits.



Thanks. Perhaps so; I'll check.

NpS, thanks.

1. Good idea. The court filings are public, so I'll check them.
2. The neighbor uncovered some significant stuff that the board was doing wrong. One of several results was that our annual meeting was rescheduled several times and then cancelled, and the board had to do some major work on records and other paperwork, all because of things that the neighbor found (and emailed to the community).
3. We have a group email list (nobody's email address is published). You just email one address and your email goes to the whole community.
4. Well, the board had to take some significant steps to correct things that the neighbor found, and it keeps getting sued. It's never the plaintiff.
5. People ask the neighbor what his concerns are, and he always says, "My concerns are in the court filings, which are a public record and are available online."
6. True, although the neighbor is clearly smart (he has a PhD in the hard sciences from a top-5 university, plus a similar law degree). I found out who the board's counsel is and the board's counsel has nowhere near those credentials and has only a few years of experience. So the board's counsel is probably outgunned.
7. True.

The neighbor just keeps at it. I haven't seen the board say anything that the neighbor is doing wrong, but there's clearly a dispute. The neighbor kept assaulting the board by email, and the result of each assault would be that the board and its counsel would then announce a retraction of such-and-such a policy, reschedule our annual meeting, etc. And now litigation. And the neighbor now says that won't yield, period. This just needs to stop. The board won't lay out the issues and what the options are to getting this stopped.
MelissaP1
(Alabama)

Posts:8764


06/22/2019 4:38 PM  
Don't overlook the fact your HOA can COUNTER-sue the Neighbor/Lawyer. Not sure they will expect that. It doesn't cost as much to counter-sue. The suit can be for about anything that is costing the HOA damage/money. It also does not take a lawyer to file the counter suit. It's a simple response to the original suit.

The counter-suit can be for the legal expenses your HOA is incurring for all this litigation. There is also a clause in some states that if the court feels the lawsuit is "frivolous" then it can be dismissed and legal fees paid by the filer to the HOA. Something maybe this person is betting on while he's holding your gonads in their hands...

Plus I wouldn't be "preventing" a court battle. I'd be going to court. All this prevention crap is just costing more money. Court is to ONLY make you "whole". So technically only to get back the monetary damages one occurred. The decision of who pays their legal fees is with the court. They could decide either way on who pays who's fees if at all.


There is also the factor of the insurance claim. Insurance should cover the expenses of some lawsuits to a point. My gut tells me your dealing with a quite an ethical questionable lawyer. It may not be wrong to report them to the bar if there are questionable things such as this extortion tactics.

Former HOA President
PaulJ6
(New York)

Posts:382


06/22/2019 4:43 PM  
To counter-sue takes having a valid claim. The board has never counter-sued and has never stated that it has any claims against the neighbor.

I found the court filings online and they claim that the neighbor was defrauded. They have lots of exhibits, records, etc. attached to them.

I don't think I'd question the ethics of anyone involved here. The neighbor has a good reputation in the community (and a very high-profile job, under the public eye). But I always thought highly of the board members as well.
MelissaP1
(Alabama)

Posts:8764


06/22/2019 5:07 PM  
They have a valid claim if it's costing them money to keep paying legal costs. Don't think it has to be necessarily a "Valid" countersuit. Just a response of "Hey you play you pay" so here's our bill... It can't be absolutely frivolous of course. However, the expense of hiring a lawyer to defend itself against their claims should be enough. The court can decide to toss it out.

I am just saying that sounds like you are playing with a person who knows the game. Your out gamed here. The board just doesn't have the wits or the legal ability to keep up in the game. So it just needs to play it's only pawn and try it's best to get off the chess board with it...

Former HOA President
PaulJ6
(New York)

Posts:382


06/22/2019 5:11 PM  
Posted By MelissaP1 on 06/22/2019 5:07 PM
They have a valid claim if it's costing them money to keep paying legal costs. Don't think it has to be necessarily a "Valid" countersuit. Just a response of "Hey you play you pay" so here's our bill... It can't be absolutely frivolous of course. However, the expense of hiring a lawyer to defend itself against their claims should be enough. The court can decide to toss it out.

I am just saying that sounds like you are playing with a person who knows the game. Your out gamed here. The board just doesn't have the wits or the legal ability to keep up in the game. So it just needs to play it's only pawn and try it's best to get off the chess board with it...




Thanks, I appreciate your guidance- you're definitely highly knowledgeable.

In this case, (I'm a lawyer as well but not a litigator) there would not be any basis that I know of for the HOA to seek collection of its legal fees, and so I don't think that the HOA could sue for recovery of legal fees.

I don't see why the board has let this litigation go on for so long; maybe the neighbor is super-demanding but whatever the reason, this lawsuit nonsense needs to stop.
AugustinD


Posts:2063


06/22/2019 5:23 PM  
Posted By PaulJ6 on 06/22/2019 4:43 PM
I found the court filings online and they claim that the neighbor was defrauded. They have lots of exhibits, records, etc. attached to them.


I hope you will post details. Even better, go to the court clerk and get a copy of the original filing; scan; redact; post.

The plaintiff sounds like he sure toots his own horn about how important he is. It seems to me that, if he is really so important, he would not have to promote himself.
MelissaP1
(Alabama)

Posts:8764


06/22/2019 5:27 PM  
I mention the legal fees collection because in some cases those can be considered "damages". It's why one can get paid back for filing a lien. A lien is made up of the legal fees to file, amount owed, and interest (Late fees negotiable). If you can include legal fees in filing a lien, then why not any other necessary legal consult? I've heard some HOA's even charging members their legal fees if their request incurs them asking the HOA lawyer advice.

Our HOA we never issued fines. Instead we could fix the violation and send the owner the bill for the repairs. If they refused to pay the bill, then we could file a lien for that. The lien would include filing lien and the amount owed. It's in our CC&R's that we can do this. (Thanks to the ex-president con-man pointing this out to rip-off the HOA).

I am simply applying the same concept to this litigation mess. Sometimes need to go a different angle. An angle this person not quite expecting. Sometimes you got to poke the bear back to stop it from coming forward.

Most HOA fights can be resolved just by reading and practicing what the documents have written. If a majority doesn't like them, then they allow you to change them. An effort much more worthy than any lawsuit. IF you put the work in...

Former HOA President
PaulJ6
(New York)

Posts:382


06/22/2019 5:32 PM  
Posted By AugustinD on 06/22/2019 5:23 PM
Posted By PaulJ6 on 06/22/2019 4:43 PM
I found the court filings online and they claim that the neighbor was defrauded. They have lots of exhibits, records, etc. attached to them.


I hope you will post details. Even better, go to the court clerk and get a copy of the original filing; scan; redact; post.

The plaintiff sounds like he sure toots his own horn about how important he is. It seems to me that, if he is really so important, he would not have to promote himself.




The court filings are available online. The neighbor hired a well-respected law firm (named in the filings) to pursue the litigation. Perhaps it's overkill, but it's not frivolous, and this law firm would not have taken a baseless case.

So we have a skilled lawyer neighbor hiring a skilled law firm to sue the HOA, and it's still going on. The HOA has not counterclaimed.

When these things have happened in your HOA, have residents done anything to stop such lawsuits? Or at least to get the HOA and the owner to drop the hostility and work things out? That's what I'd like.
NpS
(Pennsylvania)

Posts:3921


06/22/2019 5:38 PM  
Posted By PaulJ6 on 06/22/2019 3:35 PM

2. The neighbor uncovered some significant stuff that the board was doing wrong. One of several results was that our annual meeting was rescheduled several times and then cancelled, and the board had to do some major work on records and other paperwork, all because of things that the neighbor found (and emailed to the community).



Ok, so they are making administrative mistakes, and correcting them after being challenged. Got it. But what's that got to do with the argument between him and the BOD? That doesn't prove anything about the legitimacy of the BOD's position or the lawyer's position on the lawsuit. Until you read the filings, you don't know what's going on. And that's why I think you're getting played.

Posted By PaulJ6 on 06/22/2019 3:35 PM

4. Well, the board had to take some significant steps to correct things that the neighbor found, and it keeps getting sued. It's never the plaintiff.



I could interpret that either way. Maybe your BOD doesn't sue because they don't intentionally spend HOA money when they don't have to.

Posted By PaulJ6 on 06/22/2019 3:35 PM

6. True, although the neighbor is clearly smart (he has a PhD in the hard sciences from a top-5 university, plus a similar law degree). I found out who the board's counsel is and the board's counsel has nowhere near those credentials and has only a few years of experience. So the board's counsel is probably outgunned.



IMO, not a basis to assess your situation. Reading the filings will tell you what you need to know.

Posted By PaulJ6 on 06/22/2019 3:35 PM

The neighbor just keeps at it. I haven't seen the board say anything that the neighbor is doing wrong, but there's clearly a dispute. The neighbor kept assaulting the board by email, and the result of each assault would be that the board and its counsel would then announce a retraction of such-and-such a policy, reschedule our annual meeting, etc. And now litigation. And the neighbor now says that won't yield, period. This just needs to stop. The board won't lay out the issues and what the options are to getting this stopped.



You sound like you're getting bullied. The lawyer is giving your BOD an ultimatum - spend money or cave in - and then he's digging at you that they shouldn't be spending your money. But he hasn't answered the question - Why is he right and the BOD wrong about the issue that the lawsuit is about.

The thing that annoys me the most about your lawyer-owner is that he's setting a tone - Why would anyone want to be on the BOD if this guy can sit on the sidelines and attack you with his heavier guns. I've had a couple of lawyers live in my HOA. Both were convinced that they were smarter than anyone else - Both had all kinds of things to point out about what we were doing wrong. But when I approached both to sit in on HOA discussions, neither one had the time. My attitude is - If you're not willing to sit in when invited, and you only identify defects so that you can gain leverage against the BOD, we don't need you digging at our heels. How many people in your HOA won't be willing to run for your BOD after this incident? Very unfortunate.

I wonder what the dispute is about.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:2063


06/22/2019 5:48 PM  
Paul, how about posting a link to the court web site and the case number, so folks here can look up the filings?

Regarding this latest litigation, I bet there is a good reason the HOA has not caved.

What I have seen:

-- a lawsuit by a pro se crank that ended up being without merit and was tossed out, after about 1.5 years.

-- a lawsuit where the HOA was wrong but honestly thought it was right, in not enforcing a covenant. The insurance company paid for the HOA's attorney. The attorney honestly thought she was right, too. A new HOA law had kicked in recently. I believe the new law was key to the HOA's defeat.

-- HOA members threaten lawsuits; their threats have merit; the HOA cleans up its act but harasses the complaining member, publishing lies about him or her, looking the other way when vendors enter their unit without permission, and so on. Things can get so ugly.

-- a lawsuit by a HOA against a member who had taken property (a computer and other things). The member eventually sold and moved to another state. The HOA won the lawsuit by default judgement. The member had raised some good issues over the years and was responsible for much needed change. On the other hand, she was terrible at maintaining infrastructure once she got on the board. Some wanted her gone. Others felt she was a mixed bag of good and bad.
PaulJ6
(New York)

Posts:382


06/22/2019 6:31 PM  
NpS and AugustinD, thanks!

I now have read the filings. The neighbor's issues weren't administrative mistakes- he claims that they're material issues. And in his emails to the community, he says that he has asked to discuss these issues with the board but that the board has rejected his requests. He claims to have been harassed by the board.

I'd like to see the board's side of this, but above all, I'd just like this to end.

In your HOAs, have neighbors come together and gotten both sides to just sit down and work this type of thing out?
SheilaJ1
(South Carolina)

Posts:121


06/22/2019 6:36 PM  
Posted By MelissaP1 on 06/22/2019 4:38 PM
Don't overlook the fact your HOA can COUNTER-sue the Neighbor/Lawyer. Not sure they will expect that. It doesn't cost as much to counter-sue. The suit can be for about anything that is costing the HOA damage/money. It also does not take a lawyer to file the counter suit. It's a simple response to the original suit.

The counter-suit can be for the legal expenses your HOA is incurring for all this litigation. There is also a clause in some states that if the court feels the lawsuit is "frivolous" then it can be dismissed and legal fees paid by the filer to the HOA. Something maybe this person is betting on while he's holding your gonads in their hands...

Plus I wouldn't be "preventing" a court battle. I'd be going to court. All this prevention crap is just costing more money. Court is to ONLY make you "whole". So technically only to get back the monetary damages one occurred. The decision of who pays their legal fees is with the court. They could decide either way on who pays who's fees if at all.


There is also the factor of the insurance claim. Insurance should cover the expenses of some lawsuits to a point. My gut tells me your dealing with a quite an ethical questionable lawyer. It may not be wrong to report them to the bar if there are questionable things such as this extortion tactics.


Don’t listen to this. You cannot sue a neighbor because they are costing you money. The HOA has nothing actionable which you have already noted. So many HOA’s have tried this route and it will always backfires.

Getting back to your question, you can call a meeting but the decision still lies with the board.

Your goal seems to be resolving this quickly and cheaply, do you think the board is the issue here? Something is not being said by them? Any chance they can be removed?

PaulJ6
(New York)

Posts:382


06/22/2019 6:38 PM  
Thanks. I like the current board. I have no issues with them. I don't know why they would let something like this go on for so long. They're totally silent on what's happening, and I wish that the board would communicate about it.
SheilaJ1
(South Carolina)

Posts:121


06/22/2019 6:54 PM  
Posted By PaulJ6 on 06/22/2019 6:38 PM
Thanks. I like the current board. I have no issues with them. I don't know why they would let something like this go on for so long. They're totally silent on what's happening, and I wish that the board would communicate about it.


You shouldn’t like a board who has kept this going for so long and do not give any details, that usually means they are just giving neighbors answers like typical politicians do. That usually smells trouble for neighbors in the end.

You mention this neighbor felt harassed, you can’t file a lawsuit based on that. if the board is taking all these corrective actions then it does appear the neighbor is pointing out issues.

Other than studying the entire case, not much else you can do. More details are needed.

PaulJ6
(New York)

Posts:382


06/22/2019 6:57 PM  
Sheila, thanks. The court filings claim fraud, among other things. I don't know if that's true, or the full story, but that's the claim.
NpS
(Pennsylvania)

Posts:3921


06/22/2019 7:04 PM  
Posted By PaulJ6 on 06/22/2019 6:31 PM
NpS and AugustinD, thanks!

I now have read the filings. The neighbor's issues weren't administrative mistakes- he claims that they're material issues. And in his emails to the community, he says that he has asked to discuss these issues with the board but that the board has rejected his requests. He claims to have been harassed by the board.

I'd like to see the board's side of this, but above all, I'd just like this to end.

In your HOAs, have neighbors come together and gotten both sides to just sit down and work this type of thing out?




What exactly were the material issues that the lawyer is complaining about?
Or better yet, as Augustin said, if you can provide us with a link to the case, we can read the filings ourselves and give you feedback.

I'm a bit confused. You said what was in the lawyer's Complaint, but nothing about what was in the HOA's Answer. The HOA's filing is just as important as the Lawyer's.

Around 50% of all lawsuits get sent to mandatory mediation. There's a good chance that you'll get your wish, but that's no guarantee that things will get settled that way.


Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:382


06/22/2019 7:08 PM  
NpS, thanks. The HOA's response was legalease about why most of the neighbor's complaints should be dismissed. But the HOA's response didn't contest the fraud claim. (Of the various causes of action in the neighbor's complaint, the HOA's response addressed almost all of them, one by one, but skipped over the fraud claim and did not address it.) The HOA did not counterclaim for anything.

SheilaJ1
(South Carolina)

Posts:121


06/22/2019 7:10 PM  
Posted By PaulJ6 on 06/22/2019 6:57 PM
Sheila, thanks. The court filings claim fraud, among other things. I don't know if that's true, or the full story, but that's the claim.


Because they have no counter claim, it’s as simple as that. It certainly appears the board did something.

Fraud is a pretty serious allegation. Like I already stated look at the responsive actions of the board, you’ll get a pretty good idea who the real wrong do’er is real fast. Then not much the neighbors can do other than listen or remove the board. Other than mediation the situation may resolve itself soon.
PaulJ6
(New York)

Posts:382


06/22/2019 7:17 PM  
Thanks. So regardless of who's at fault, we have a long-standing dispute between a board and a neighbor who says that he won't back down.

When this happens in other communities, how do people get this stopped?
SheilaJ1
(South Carolina)

Posts:121


06/22/2019 7:31 PM  
Posted By PaulJ6 on 06/22/2019 7:17 PM
Thanks. So regardless of who's at fault, we have a long-standing dispute between a board and a neighbor who says that he won't back down.

When this happens in other communities, how do people get this stopped?


People just say that, happens in almost ever HOA, lawyers do actually resolve issues sometimes and then the litigants start to back down. Hopefully it won’t take too long.
NpS
(Pennsylvania)

Posts:3921


06/22/2019 7:49 PM  
Posted By PaulJ6 on 06/22/2019 7:08 PM
But the HOA's response didn't contest the fraud claim.



It doesn't have to.
In most jurisdictions, the elements of a fraud are (1) a false representation; (2) about a material fact; (3) made with knowledge of its untruth; (4) with intent to deceive; and (5) defendant relied on the representation.
The complaining lawyer has the burden to prove all 5 elements. If he can only prove 4, his fraud claim fails. The HOA doesn't have to deny fraud at this stage. All they have to do is deny some portion of the elements that make up fraud.

In short, you don't know the significance of what you're reading and you are scared. Understandable.

Yet, I go back to my original impression - I think you're getting played.

Fraud is tough to prove - especially on item 4. It's one thing that your BOD members did things wrong - After all they're volunteers doing the best they can - It's quite another thing that they intended to deceive anyone. Think about it. Do you really think that's true about your BOD members. If you do, then get rid of them as soon as you can. But if not - if you're willing to accept the possibility that they just made dumb mistakes, then it's that much harder to accept the idea that your BOD acted fraudulently. In other words, Fraud looks like a BS claim that will probably fail.



Sikubali jukumu. Read all posts at your own risk.
SheilaJ1
(South Carolina)

Posts:121


06/22/2019 8:20 PM  
Fraud is not that uncommon on volunteer boards.

So it appears the litigant withdrew the claim after the old board left. But it appears the new board is doing the same thing, is this HOA professionally managed?
Did the insurance pickup this claim?
Who is defending the lawsuit, the insurance appointed attorney or HOA attorney?
GenoS
(Florida)

Posts:3370


06/22/2019 8:51 PM  
When information regarding a lawsuit gets out into the open there's really no way to contain it. It's all public inforamation anyway for the most part.

On the other hand, at least in Florida, one of the exceptions to "board secrecy" is attorney-client privilege. The board can stay mum about any legal action or strategy covered by attorney-client privilege. That may be why they're reluctant to share. While it's codified in Florida, other places, regardless, probably don't want to waive that privilege because then they'd potentially be on the hook and forced to disclose much more than they want or otherwise have to.
JohnT38
(South Carolina)

Posts:135


06/23/2019 3:42 AM  
Various people have asked for a link to the lawsuits or for more details on the complaints. I wonder why the OP has ignored these requests? Could it be that the lawyer neighbor has some valid issues?
PaulJ6
(New York)

Posts:382


06/23/2019 4:12 AM  
The court filings are online, but they have to be paid for to be downloaded.
SamE2
(New Jersey)

Posts:199


06/23/2019 6:03 AM  
If there is fraud going on don't you want to know? Do the things in the suit upset you? The association should have insurance so there should not be too much of a cost to the association. If it were me I would want it to play out so I knew if the board was committing fraud. If it was just administrative mistakes I would not be upset. Sometimes HOAs need to be sued.
PaulJ6
(New York)

Posts:382


06/23/2019 6:13 AM  
The allegations are all things in the past by the old board. I don’t want litigation because who knows what it could escalate to be.
MelissaP1
(Alabama)

Posts:8764


06/23/2019 6:26 AM  
Well if the same conditions don't exist any more with the new board and it goes to court, it most likely would be tossed out. The "offenders" are no longer in office. It shows the court the HOA took action to mitigate their damages. So I would simply just wait to be called to court and process from there. For me, I wouldn't be scared to go to court over this matter. It would be over with and done. The HOA has insurance and the neighbors should know they are involved in a lawsuit. It can't be a secret to the membership. Just maybe the details between HOA board/Lawyer as that is client privilege. Otherwise case status is a right to know in a corporation.

Former HOA President
AugustinD


Posts:2063


06/23/2019 7:05 AM  
Posted By NpS on 06/22/2019 7:49 PM
Fraud is tough to prove - especially on [item 4, "intent to deceive"]. It's one thing that your BOD members did things wrong - After all they're volunteers doing the best they can - It's quite another thing that they intended to deceive anyone. Think about it. Do you really think that's true about your BOD members. If you do, then get rid of them as soon as you can. But if not - if you're willing to accept the possibility that they just made dumb mistakes, then it's that much harder to accept the idea that your BOD acted fraudulently. In other words, Fraud looks like a BS claim that will probably fail.


The issues NpS raises re fraud recently got on my radar. A friend of mine just completed a trial where the main claim was fraud. The several attorneys he used indicated that, when the law gets down to the nuts and bolts, fraud is hard to prove. Lawsuits alleging fraud rarely win.

Regarding Melissa's claim that a HOA can countersue for just about anything: In my layperson's experience, she is not far off. In New York (and many other states), and when the plaintiff's claims appear to be nonsense, a countersuit for "malicious abuse of process" is common. Said claim is essentially a claim of a frivolous lawsuit. For fun: In New York, the elements of a malicious abuse of process claim are that the plaintiff: (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.

In the HOA litigation I have personally witnessed, the member who brought suit or threatened suit always had some truly valid reasons for doing so, even if the member did not prevail on the main claims. While the plaintiffs may not have prevailed, the suit brought good change to the HOA. Granted at great expense. E.g. even with the pro se crank who sued one HOA to which I belonged, the Bylaws were updated within a couple years. This was because at one point in an early motion hearing, the pro se crank objected to the Bylaws, rattling off angrily a number of actual inaccuracies in them. The judge looked at the HOA's insurer-provided attorney and snarled something like, "Is the HOA going to update the Bylaws?" The HOA's attorney responded obsequiously, 'Yes, your Honor. I believe this is in progress.' It was not in progress, but this exchange nonetheless jump-started the Board to get started on updating the Bylaws. The HOA had over 1500 members, so getting approval was not easy but did happen within a few years.

As NpS wrote, court-ordered mediation is common, assuming both parties agree to it. I am not sure what the rules are in New York for this. But for Paul, the HOA Members can certainly lobby for this.

CathyA3
(Ohio)

Posts:545


06/23/2019 7:11 AM  
Posted By GenoS on 06/22/2019 8:51 PM
When information regarding a lawsuit gets out into the open there's really no way to contain it. It's all public inforamation anyway for the most part.

On the other hand, at least in Florida, one of the exceptions to "board secrecy" is attorney-client privilege. The board can stay mum about any legal action or strategy covered by attorney-client privilege. That may be why they're reluctant to share. While it's codified in Florida, other places, regardless, probably don't want to waive that privilege because then they'd potentially be on the hook and forced to disclose much more than they want or otherwise have to.




Yes! Attorney-client privilege exists for HOA boards and their attorneys in my state, and information about pending litigation is normally not disclosed to homeowners. In this case anyone who is really curious can pay to download the relevant documents.

I agree with NpS regarding the bully tactics employed by the lawyer-homeowner. It's a way to force the board to do things your way, but without running for the board yourself and being held accountable for your decisions. I have no respect for that sort of thing.
SteveM9
(Massachusetts)

Posts:3432


06/23/2019 7:14 AM  
point out errors and mistakes by the board, in a very lawyerly way, typically by citing provisions of our state's law and the HOA's bylaws that the board has violated. The neighbor seems to win each time, as right after he emails, the HOA's counsel and the board correct whatever they're doing.


My opinion is.......probably time to replace everyone.

Want more lawsuits? Keep everything the same.
Want to make this current lawsuit go away? Replace everyone.

I get it, people are volunteers and dont know any better. But these people hold a lot of power. Power over your wallet, your hoa reserves, etc. When these people (with power) who dont know what they are doing dig their heels in the ground and a lawsuit is the result, they need to go.
JohnT38
(South Carolina)

Posts:135


06/23/2019 7:34 AM  
Steve, I agree with you 100%. The OP all but admits that the lawyer/neighbor has been right time after time. Either the board cleans up their act or they get replaced with one that will do what's needed. I would bet my bottom dollar that the law suites have much more merit and are more serious than we have been led to believe. I'm not even sure what the point of this thread is. Either act, or don't.
NpS
(Pennsylvania)

Posts:3921


06/23/2019 9:19 AM  
I went back and read the OP's first post again.

Lawyer convinced the neighborhood to replace Board #1. One year later, Lawyer is going after Board #2. Same thug tactics. How is it that Board #2 (who must still be getting their feet wet after just one year in office) - the people who bought into the need for getting rid of the bad guys - have become the new bad guys and can't seem to achieve perfection yet in the eyes of Lawyer?

We still don't know what the underlying issue is. What we do know is that Lawyer didn't step up. And he likes flexing his muscles. To what end I ask? I'll bet that BOD #2 is spending a good 40% of their time chasing the deficiencies that Lawyer identifies and worrying about spending money on the HOA lawyer. They're probably running a bit scared and wondering why they took this on. What does that mean for the community? Is any progress being made on things that Lawyer isn't pushing? Since when should a non-BOD member be allowed to set the agenda and dominate the messaging?

I chuckled when I read Lawyer's claim that HOA hadn't included some mysterious information in government filings (that OP still isn't sure of). What was it? Maybe the fact that they stole all the reserve funds and didn't disclose it? Or maybe it had something to do with not paying $25 and filling out the forms to renew the Corporate charter. We don't know. Should anyone make a distinction between stealing money and not knowing that a filing should have been made? Nah. Lawyer has identified a deficiency, and it's costing money, so that's all that matters. Why, on this second time around, is the same heavy-handed tactic so successful? I don't get it.

My perspective is biased by the fact that I live in a community of less than 100 homes. I don't know where we'd get a Board #2, let alone a Board #3. I'm not in love with the folks I have now, with all their limitations and inadequacies, but at least they're standing up. I can't tell you how many times I've had to convince people not to quit. Maybe it's different in a large HOA, but getting bodies to stay on the BOD is rough in a small community like mine.

In my state, we have to disclose any litigation before a house gets sold. Wow. I would hate to think about the effect of a lawsuit on the sale price of our houses. But Lawyer, who in my mind should know better, doesn't give a crap about things like that. He doesn't care about the effect of what he's doing on the value of the homes in OP's neighborhood. And I can see Lawyer doing it again when Board #2 quits and Board #3 steps up. Shame on him.

Sikubali jukumu. Read all posts at your own risk.
JeffT2
(Iowa)

Posts:501


06/23/2019 9:30 AM  
Can you be an informal (or formal) mediator? As an owner, you have access to the board, and you do not have to go through their lawyer. And you can talk to your neighbor. It would be interesting to see what they say when asked to settle. You might find our their motive. Maybe you can cut through it all and work something out.
CathyA3
(Ohio)

Posts:545


06/23/2019 9:33 AM  
Posted By NpS on 06/23/2019 9:19 AM

In my state, we have to disclose any litigation before a house gets sold. Wow. I would hate to think about the effect of a lawsuit on the sale price of our houses. But Lawyer, who in my mind should know better, doesn't give a crap about things like that. He doesn't care about the effect of what he's doing on the value of the homes in OP's neighborhood. And I can see Lawyer doing it again when Board #2 quits and Board #3 steps up. Shame on him.




Amen. Given that he is going to damage property values, damage the HOA's finances, and eventually make it impossible to fill the board seats, I'd be really tempted to simply convince enough homeowners to take the HOA into receivership, and let Mr. Bully try to do an end run around the court-appointed receiver. Sadly, I can't think of any other (legal) solution to this. Maybe file a complaint with the bar association? Weak, I know...
JohnC46
(South Carolina)

Posts:8892


06/23/2019 9:36 AM  
While I am usually anti-lawyer, the OP says each time the lawyer has gone after the BOD the BOD admitted they were wrong and changed procedures. Maybe the lawyer is not really the problem.
JeffT2
(Iowa)

Posts:501


06/23/2019 9:45 AM  
Paul is this the lawyer and your community?

http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/262100/Default.aspx
MelissaP1
(Alabama)

Posts:8764


06/23/2019 10:29 AM  
I thought the same thing until the OP said this lawyer was well educated and respected in his community...

Former HOA President
SheilaJ1
(South Carolina)

Posts:121


06/23/2019 10:38 AM  
If the HOA counsel did not show up to the court hearing that means the insurance has not been notified or appointed counsel, right? So the board hasn’t tendered the lawsuit in an official vote. Also kind of means the HOA counsel is making some money off of this, it maybe good to contact the insurance and see what is going on, insurances rarely let the HOA counsel represent the HOA because they are usually involved in what caused the lawsuit in the first place.

Still like to know what the management company is doing.
PaulJ6
(New York)

Posts:382


06/23/2019 10:49 AM  
Thanks, everybody.

We first got building-wide emails from the lawyer mentioning the lawsuit almost a year ago. So this lawsuit has been going on for almost a year.

The HOA has insurance-paid counsel, according to my neighbor-friend who heard it from her friend on the board. I don't know why that counsel didn't show up at the court hearing.

In my lawyer experience, a reputable firm isn't going to file a lawsuit for someone without (1) trying to talk the plaintiff out of it and (2) ensuring that the lawsuit has some validity; a lawsuit in this situation won't be frivolous; it may not be successful but there's something there.

I just want the board to tell us why it hasn't settled and when it's going to stop. The board has insurance and insurance-paid counsel and probably just hates the lawyer and figures it can run up his costs, but clearly we're beyond the documents flying back and forth and we're at the showing up in court stage, so one side will win and one side will lose. If the board loses, I hope the board has insurance to cover it.
NpS
(Pennsylvania)

Posts:3921


06/23/2019 4:24 PM  
Posted By JeffT2 on 06/23/2019 9:45 AM
Paul is this the lawyer and your community?

http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/262100/Default.aspx



Paul, is this the lawyer in your community?

Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:382


06/23/2019 4:30 PM  
No.
NpS
(Pennsylvania)

Posts:3921


06/23/2019 5:34 PM  
Posted By PaulJ6 on 06/23/2019 10:49 AM
The HOA has insurance-paid counsel, according to my neighbor-friend who heard it from her friend on the board. I don't know why that counsel didn't show up at the court hearing.



Paul, please realize that - if counsel is insurance-paid, then the insurance company is making most of the decisions, not your BOD. Your BOD could be totally in the dark on the status of the lawsuit. They could remain in the dark until the court orders mediation, a trial date is set, or there's a discovery demand that needs to be satisfied. Any of those things could be a long way off. And when one of those things happens, the insurance company will notify your HOA lawyer, who will notify your BOD.

Not sure why you're fretting over the insurance company lawyer not showing up at a hearing. If it had been a significant issue, then there would have been filings about it on the docket sheet of the lawsuit. So you can read it there if you like. But I still don't understand why you find it so disturbing - It happens a lot. There are emergencies that come up. Filings are made. Objections are made. The court accepts those filings or not. It happens a lot. The only thing that matters is if the court penalizes the lawyer who didn't show up by giving the win to the other side. But obviously that didn't happen here or you would have told us. So why fret about it if it doesn't affect what the court will do?

Posted By PaulJ6 on 06/23/2019 10:49 AM
In my lawyer experience, a reputable firm isn't going to file a lawsuit for someone without (1) trying to talk the plaintiff out of it and (2) ensuring that the lawsuit has some validity; a lawsuit in this situation won't be frivolous; it may not be successful but there's something there.



What a law firm cares about is billable hours. If Lawyer-owner is bringing in the bucks, your reputable firm is going to let him run with it. If it interferes with billable hours, they'll talk to him about it. But the firm isn't going to investigate. They will count the hours that some paralegal spends on the filings and make sure that someone is paying for those hours.

Posted By PaulJ6 on 06/23/2019 10:49 AM
I just want the board to tell us why it hasn't settled and when it's going to stop. The board has insurance and insurance-paid counsel and probably just hates the lawyer and figures it can run up his costs, but clearly we're beyond the documents flying back and forth and we're at the showing up in court stage, so one side will win and one side will lose. If the board loses, I hope the board has insurance to cover it.



I get your frustration, but I think your annoyance is misplaced.

I can guarantee to you that no insurance company is going to spend 5 cents to pursue something because of hatred, anger, retaliation, or whatever. They don't work that way. And even if the BOD felt that way, they're not in control of how the insurance company's money gets spent.

Are you really at the showing up in court stage? Has a trial date been set? Even after a trial date is set it can be another 6 months before a case actually goes to trial - if it ever gets that far.

Can I ask why you think there might be money that needs to be paid by your HOA? Absolutely nothing you said identifies what damages the Lawyer-owner is seeking. BTW, that information needs to be in the filings too.

Getting back to the issue of being reputable:

There are some hard and fast rules in litigation. One is that, if both sides are represented by counsel, then communication is between lawyer and lawyer. Lawyer A cannot speak directly to Lawyer B's client without permission.

So please tell me Paul, do you think that Lawyer-owner - the one who decided that a lawsuit was the way to go - is acting reputably or even legitimately when he goes directly to you and all the other owners instead of limiting his communications to the other lawyer only?

And finally - If you think that the HOA should be telling you everything that's going on, should that include the HOA telling lawyer-owner everything too? Do you see anything wrong with his sitting on both sides of the table? Would that be reputable in your opinion?






Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:382


06/23/2019 6:06 PM  
Posted By NpS on 06/23/2019 5:34 PM
What a law firm cares about is billable hours. If Lawyer-owner is bringing in the bucks, your reputable firm is going to let him run with it. If it interferes with billable hours, they'll talk to him about it. But the firm isn't going to investigate. They will count the hours that some paralegal spends on the filings and make sure that someone is paying for those hours.
...Are you really at the showing up in court stage? Has a trial date been set? Even after a trial date is set it can be another 6 months before a case actually goes to trial - if it ever gets that far.

...There are some hard and fast rules in litigation. One is that, if both sides are represented by counsel, then communication is between lawyer and lawyer. Lawyer A cannot speak directly to Lawyer B's client without permission.

So please tell me Paul, do you think that Lawyer-owner - the one who decided that a lawsuit was the way to go - is acting reputably or even legitimately when he goes directly to you and all the other owners instead of limiting his communications to the other lawyer only?



NpS, thanks. I have to respectfully disagree with a few things above.

I'm a lawyer and a reputable firm will not pursue a baseless case. Period. Lawyers will sanctioned by the court for doing that and can suffer professional reputational damage. Reputable firms follow ethics rules to the letter, and ethics rules prohibit filing baseless litigation. Plus lawyers dread collecting large bills, believe it or not, and a law firm will not want a client to run up a large bill for a baseless case because then the client will be livid and may not pay.

In addition, yes, apparently the lawsuit is at the trial stage. The HOA's counsel didn't show up for one court date.

Finally, you're exactly right when you say that "Lawyer A cannot speak directly to Lawyer B's client without permission"--but that rule prohibits Lawyer A and Lawyer B when they are acting as lawyers. In this case, the neighbor-lawyer is the client. He has his own reputable counsel. The neighbor-lawyer in this case is neither Lawyer A nor Lawyer B; he's the client. So it doesn't matter for purposes of that rule (called the "no-contact rule") that the neighbor-lawyer is a lawyer; he isn't representing anyone in this lawsuit because he's the client. Neighbor-lawyer's counsel couldn't speak to the board without the HOA's counsel's permission, but neighbor-lawyer can speak to anyone as long as his counsel isn't directing him to do so.

People on this board seem to frequently claim that lawyers who are described on this board are unethical, but everyone involved in this case is highly ethical, from what I can tell. It's a high-end building with high-end people. They aren't a bunch of ambulance-chasers.
PaulJ6
(New York)

Posts:382


06/23/2019 6:09 PM  
Since I can't seem to respond with quotes correctly:

NpS, thanks. I have to respectfully disagree with a few things above.

I'm a lawyer and a reputable firm will not pursue a baseless case. Period. Lawyers will sanctioned by the court for doing that and can suffer professional reputational damage. Reputable firms follow ethics rules to the letter, and ethics rules prohibit filing baseless litigation. Plus lawyers dread collecting large bills, believe it or not, and a law firm will not want a client to run up a large bill for a baseless case because then the client will be livid and may not pay.

In addition, yes, apparently the lawsuit is at the trial stage. The HOA's counsel didn't show up for one court date.

Finally, you're exactly right when you say that "Lawyer A cannot speak directly to Lawyer B's client without permission"--but that rule prohibits Lawyer A and Lawyer B when they are acting as lawyers. In this case, the neighbor-lawyer is the client. He has his own reputable counsel. The neighbor-lawyer in this case is neither Lawyer A nor Lawyer B; he's the client. So it doesn't matter for purposes of that rule (called the "no-contact rule") that the neighbor-lawyer is a lawyer; he isn't representing anyone in this lawsuit because he's the client. Neighbor-lawyer's counsel couldn't speak to the board without the HOA's counsel's permission, but neighbor-lawyer can speak to anyone as long as his counsel isn't directing him to do so.

People on this board seem to frequently claim that lawyers who are described on this board are unethical, but everyone involved in this case is highly ethical, from what I can tell. It's a high-end building with high-end people. They aren't a bunch of ambulance-chasers.
PaulJ6
(New York)

Posts:382


06/23/2019 6:17 PM  
NpS, also, to add: I've been involved in corporate disputes, and it's tricky when, for example, directors or stockholders are fighting each other, since they still are entitled to receive various information from the company. I view the current situation as similar: one member of the HOA is fighting with the board.

In this situation, I'd expect the board to be sending out generic communications to the entire HOA every now and then, with the purpose of showing that it's right, but not really saying much. That's how corporate boards involved in disputes have handled things.

But in this case, the board is totally silent. It lets the neighbor-lawyer beat up on it by HOA-wide emails.

If that's its litigation strategy, it's odd.
AugustinD


Posts:2063


06/23/2019 6:53 PM  
Posted By PaulJ6 on 06/23/2019 6:09 PM
I'm a lawyer and a reputable firm will not pursue a baseless case. [snip for brevity]
In addition, yes, apparently the lawsuit is at the trial stage. The HOA's counsel didn't show up for one court date.


A hearing being scheduled does not mean the lawsuit is at the trial stage. Most likely whatever hearing the HOA's counsel missed was a motion hearing or perhaps a scheduling conference. It is usual for "motion practice" to occur for many months before a lawsuit is tried. "Motion practice" is a series of hearings where the judge rules on one or more motions that typically address much less than that which a full blown trial addresses. "Motion practice" whittles down the issues to their bare essence. Paul, respectfully, it is strange to me that a member of the bar would think that, when a hearing has occurred, this means the trial has begun.

As far as the Board being silent, I can see how the HOA attorney would advise this.
PaulJ6
(New York)

Posts:382


06/23/2019 6:59 PM  
AugustinD, I understand through other neighbors that the neighbor-lawyer is seeking a default judgment or sought a default judgment due to the HOA’s counsel not showing up. I also understand from reviewing the court filings that it’s beyond the motion-practice stage. The HOA’s counsel actually missed a day of the trial. Please, let’s not view people as unethical or un-knowledgeable.
AugustinD


Posts:2063


06/23/2019 7:02 PM  
Posted By NpS on 06/23/2019 5:34 PM
Paul, please realize that - if counsel is insurance-paid, then the insurance company is making most of the decisions, not your BOD.


NpS, I disagree. The insurer-provided attorney still has one client: The HOA. With one exception, the insurer-provided attorney is obliged to keep the client (the HOA via the BoD) informed and may not make motions or take other major steps without first getting the client's consent. To do otherwise may lead to a malpractice claim by the HOA. The one exception is if the insurance policy has a "hammer clause." " A "hammer clause" permits an insurer to make a decision about whether to settle with the plaintiff. When there is a hammer clause, the insurer need not obtain the HOA's consent to settle.


Ask any insurer-provided HOA attorney who his client is, and she or he will say, "The HOA." It is a professional legal ethics issue.
AugustinD


Posts:2063


06/23/2019 7:08 PM  
Posted By PaulJ6 on 06/23/2019 6:59 PM
AugustinD, I understand through other neighbors that the neighbor-lawyer is seeking a default judgment or sought a default judgment due to the HOA’s counsel not showing up. I also understand from reviewing the court filings that it’s beyond the motion-practice stage. The HOA’s counsel actually missed a day of the trial. Please, let’s not view people as unethical or un-knowledgeable.


Paul, the plaintiff here may have been seeking a default judgment on a motion.

If a trial or any hearing is scheduled, you members can go and sit in the audience.

I appreciate your insistence that you are knowledgeable. But this is the internet. This forum has seen no hard proof of what the issues are. It is not hard to scan court-filed, public documents and post them.
NpS
(Pennsylvania)

Posts:3921


06/23/2019 9:42 PM  
Posted By AugustinD on 06/23/2019 7:02 PM
Posted By NpS on 06/23/2019 5:34 PM
Paul, please realize that - if counsel is insurance-paid, then the insurance company is making most of the decisions, not your BOD.


NpS, I disagree. The insurer-provided attorney still has one client: The HOA. With one exception, the insurer-provided attorney is obliged to keep the client (the HOA via the BoD) informed and may not make motions or take other major steps without first getting the client's consent. To do otherwise may lead to a malpractice claim by the HOA. The one exception is if the insurance policy has a "hammer clause." " A "hammer clause" permits an insurer to make a decision about whether to settle with the plaintiff. When there is a hammer clause, the insurer need not obtain the HOA's consent to settle.


Ask any insurer-provided HOA attorney who his client is, and she or he will say, "The HOA." It is a professional legal ethics issue.



Thanks Augustin. Point taken.

Sikubali jukumu. Read all posts at your own risk.
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