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Subject: HOA Holding Up My Escrow over Legal Fees
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WendyP5
(California)

Posts:43


07/04/2019 9:22 AM  
Posted By PaulJ6 on 07/04/2019 9:13 AM
Posted By WendyP5 on 07/04/2019 8:55 AM
I'm not suing my neighbors, I'm taking the Association to court and asking for injunctive relief. Since the Association claims that the development is not a common interest development, and the California code that regulates common interest HOAs doesn't apply to them, they do not represent the common interests of the homeowners and my neighbors. They represent the egos of two people, one of whom serves as president and treasurer and conducts his own financial audits AND has diverted all the funds that have accrued over the past 20 years for the maintenance and repair of the common area to a legal fund to protect their illegal actions.

It's the Association that's keeping this fight going. And by blocking my escrow's closing they're forcing me to keep it going too. IF they allowed me to sell I would be forced to ask for a dismissal because I would not have legal standing to sue for injunctive relief.

Also, there is so much apathy in our community that they had to resort to recruiting renters. There are renters serving on the Association's board, in violation of the CC&Rs and the by laws.





If you're selling, why would you care about how the HOA conducts itself after you sell?

Could you change the demand to be for a modest amount of monetary damages, get paid something, and move on?

Unless you're doing a derivative suit or class action on behalf of all owners, couldn't you just get paid your actual damages due to the HOA's misconduct, and be done with it?




As I said, once the property sells, I won't have any legal standing to sue. I'm not suing for monetary damages, nor are we asking for the court to impose any fines. All we're asking for is "injunctive relief" to restore the CC&Rs.

I believe the board is doing the membership great harm. I happen to be in a unique position because I served on the board for a time, and was their treasurer. I'm privy to a lot of privileged information. If not me, then who?
AugustinD


Posts:1886


07/04/2019 9:28 AM  
Posted By WendyP5 on 07/04/2019 9:16 AM
The thing is, the board doesn't seem to understand that by dismissing the civil code and the accountability it imposes, they also lose the rights and protections that it provides. They found out, for example, that they can't place a lien on my property and foreclose without a judgment from a court. They lost a huge set of teeth, right there.

Likewise, they can't compel homeowners to dues pay dues, anymore, without a judgment from a court. Under the corporate code, corporation don't have governing authority and don't represent an arm of the government like HOA's do in California under Davis Stirling.


Wendy, thank you for the explanation. I was wondering about the pros and cons of being subject to Davis-Stirling.

Sounds like you are seriously considering continuing with the lawsuit. I presume you do not have to live in the neighborhood.

Paul, "actual damages" in a suit for injunctive relief? I think not.

I agree with NpS that, if the written consent and written disclosure were not obtained, the OP's attorney could not only be disciplined by the bar, but he might also be responsible for what the HOA is trying to bill her.
PaulJ6
(New York)

Posts:184


07/04/2019 9:31 AM  
Posted By AugustinD on 07/04/2019 9:28 AM
Posted By WendyP5 on 07/04/2019 9:16 AM
The thing is, the board doesn't seem to understand that by dismissing the civil code and the accountability it imposes, they also lose the rights and protections that it provides. They found out, for example, that they can't place a lien on my property and foreclose without a judgment from a court. They lost a huge set of teeth, right there.

Likewise, they can't compel homeowners to dues pay dues, anymore, without a judgment from a court. Under the corporate code, corporation don't have governing authority and don't represent an arm of the government like HOA's do in California under Davis Stirling.


Wendy, thank you for the explanation. I was wondering about the pros and cons of being subject to Davis-Stirling.

Sounds like you are seriously considering continuing with the lawsuit. I presume you do not have to live in the neighborhood.

Paul, "actual damages" in a suit for injunctive relief? I think not.

I agree with NpS that, if the written consent and written disclosure were not obtained, the OP's attorney could not only be disciplined by the bar, but he might also be responsible for what the HOA is trying to bill her.




I know the difference between seeking monetary damages vs. injunctive relief. My question was why one would sue for injunctive relief when one is moving soon, instead of suing for something else: monetary damages.

OP, I appreciate that you're "fighting the good fight" in order to set things straight, but I don't see why you'd bear the cost of that on your own. Your lawyer should try to have the case as a class action and get paid attorneys' fees by the HOA when you win.

If all you're seeking is an injunction, I'd drop the case, since you're moving, in exchange for the HOA dropping its demand for fees.
WendyP5
(California)

Posts:43


07/04/2019 9:40 AM  
"Sounds like you are seriously considering continuing with the lawsuit. I presume you do not have to live in the neighborhood."

I don't want to. We've been trying to settle for months. I would love to drop it like it's hot! I want the escrow to clear and to happily walk away.

But, I've been doing this for more than 4 years. So, I'm emotionally invested and well researched. I know what I'm talking about, and I'm pretty sure that if they try to sue me for legal fees, without a ruling, claiming frivolity, I can explain myself to a judge.
AugustinD


Posts:1886


07/04/2019 9:47 AM  
Posted By PaulJ6 on 07/04/2019 9:31 AM
I know the difference between seeking monetary damages vs. injunctive relief. My question was why one would sue for injunctive relief when one is moving soon, instead of suing for something else: monetary damages.


What very concrete, quantifiable and provable monetary damages do you have in mind?

OP, I appreciate that you're "fighting the good fight" in order to set things straight, but I don't see why you'd bear the cost of that on your own. Your lawyer should try to have the case as a class action and get paid attorneys' fees by the HOA when you win.


You had it right when you wrote "derivative suit." She's a shareholder suing on behalf of the rights of the corporation. As an aside, this could be a defense by the HOA. All the i's must be dotted and all the t's, crossed, of California Corporations Code Section 800, https://www.davis-stirling.com/HOME/Statutes/Corp-Code-800 . I saw a HOA attorney get a bunch of claims by a HOA member tossed from court because the court ruled the claims were derivative in nature, yet the plaintiff had not met the requirements for a derivative action.

The stuff of July 4. "Duty, honor, country is where it's at."

If all you're seeking is an injunction, I'd drop the case, since you're moving, in exchange for the HOA dropping its demand for fees.


So you suggest the OP consider amending her court complaint (if it's not too late) asking for monetary damages (of a so far, unknown nature), and then she will have leverage to get the HOA to quit bugging her about paying the HOA's legal bills. I am not seeing it.
MelissaP1
(Alabama)

Posts:8396


07/04/2019 9:49 AM  
Explaining yourself in front of a judge is much different than having PROOF. They don't go by words but by actual proof in writing, video, or witness. So you can tell you long sad song to a judge all you want. Where is the proof?

Former HOA President
WendyP5
(California)

Posts:43


07/04/2019 9:57 AM  
Posted By MelissaP1 on 07/04/2019 9:49 AM
Explaining yourself in front of a judge is much different than having PROOF. They don't go by words but by actual proof in writing, video, or witness. So you can tell you long sad song to a judge all you want. Where is the proof?




What kind of proof do you think a judge will consider when looking at whether or not to award legal fees for a case that was never litigated and the defendants are claiming "frivolity", that I don't already have?



AugustinD


Posts:1886


07/04/2019 10:09 AM  
Posted By WendyP5 on 07/04/2019 9:40 AM
I know what I'm talking about, and I'm pretty sure that if they try to sue me for legal fees, without a ruling, claiming frivolity, I can explain myself to a judge.


California Rules of Civil Procedure show strong signs you can dismiss the suit and do so without the defendant's permission. (Sometimes the defendant's permission is needed.) For an introduction, see https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-581.html .

Unless either the HOA's governing documents or the California Corporations Code has a section saying, upon dismissal without a ruling, you have to pay the other side's attorney's fees, I think you're right that the HOA has no legal claim against you.

From all you have written, no way would this qualify, in the eyes of the court, as a "frivolous" suit.
RichardP13
(California)

Posts:3764


07/04/2019 10:22 AM  
Wendy,

Here is my private email if you want to contact me again, [email protected]

People are going in all sorts of tandems here when the issue is can the HOA hold up escrow? The answer is they can, if there are dues or fees not paid. I handle the escrow process for all my HOA's. In your case, you have a self-managed association for 335 units. You probably have a Board of Dictators, oops meant Directors. Someone needs to contact the escrow company and get the property released. Unless I am wrong, your Board doesn't have any documentation, legal or not, for the $12K, such as a judgement or lien or even a statement of account showing a running amount on your ledger. I have never heard a HOA charging legal fees on a homeowner while the case in progress. That actually flies against dues process, which is not Davis Stirling, but Corporation Code.

You have an association with the initials SDE up the street from you that has the same characteristics are yours, both PUD and manufactured homes. They have a General Manager running their affairs. They are listed on the Secretary of State site as a CID under David-Stirling.

Been there, Done that
RichardP13
(California)

Posts:3764


07/04/2019 10:22 AM  
Posted By MelissaP1 on 07/04/2019 9:49 AM
Explaining yourself in front of a judge is much different than having PROOF. They don't go by words but by actual proof in writing, video, or witness. So you can tell you long sad song to a judge all you want. Where is the proof?



Like hell they do!

Been there, Done that
WendyP5
(California)

Posts:43


07/04/2019 10:34 AM  
Posted By RichardP13 on 07/04/2019 10:22 AM
Wendy,

Here is my private email if you want to contact me again, [email protected]

People are going in all sorts of tandems here when the issue is can the HOA hold up escrow? The answer is they can, if there are dues or fees not paid. I handle the escrow process for all my HOA's. In your case, you have a self-managed association for 335 units. You probably have a Board of Dictators, oops meant Directors. Someone needs to contact the escrow company and get the property released. Unless I am wrong, your Board doesn't have any documentation, legal or not, for the $12K, such as a judgement or lien or even a statement of account showing a running amount on your ledger. I have never heard a HOA charging legal fees on a homeowner while the case in progress. That actually flies against dues process, which is not Davis Stirling, but Corporation Code.

You have an association with the initials SDE up the street from you that has the same characteristics are yours, both PUD and manufactured homes. They have a General Manager running their affairs. They are listed on the Secretary of State site as a CID under David-Stirling.




Ah, due process! It's that thing that flies, like an eagle, over the heads of our board of dictators, on this 4th of July holiday!

NpS
(Pennsylvania)

Posts:3572


07/04/2019 10:37 AM  
Wendy

The reality is - Your insurance money is in escrow and some portion of it won't be released until the HOA's claims against those funds get resolved.

I respect the fact that the case has been going on for years and you are invested heavily in it. But that's in the past. "If not you then who?" That was an appropriate question when you were on the BOD. Not your issue anymore.

You have 2 issues to be concerned about:

1. Costs are escalating. And you are not privy to the strategy of the HOA and the HOA's lawyers. So long as the HOA has a claim on your escrow funds, you are at risk of losing more no matter what anyone else tells you. You need professional advice on how not to make a misstep in the case that legitimizes the HOA's claims on those funds. Please consider that this might never get to court, you might never get before a judge, your day in court might never happen, and the issue of "frivolousness" is not the only one that puts your funds at risk.

2. Your current attorney's actions don't look good no matter how you look at them. That should be your main focus today. Get some advice from someone who can tell you how to protect yourself from him.

The word of the day is caution. This is tricky stuff. And while you may be an expert on what the BOD did wrong or should have done, I doubt that you are an expert in how many different ways the money you thought belonged to you could disappear.

If your current lawyer wasn't charging you for the work he was doing, please don't be fooled. That's not justification for putting you at financial risk and improving his own personal position in the HOA at your expense. You need an expert who can get you out of this dilemma. Please go find someone who can help.
\


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


Posts:1886


07/04/2019 10:47 AM  
Posted By RichardP13 on 07/04/2019 10:22 AM
I have never heard a HOA charging legal fees on a homeowner while the case in progress.


A party to a suit where there is a dispute over real estate can file a lis pendens. It's done all the time.

That actually flies against dues process, which is not Davis Stirling, but Corporation Code.


Due process is a broad legal right guaranteed by the U. S. Constitution and state constitutions. Due process means a government cannot take a person's property rights away without a fair procedure. Case law says it applies to HOAs as well.


RichardP13
(California)

Posts:3764


07/04/2019 11:09 AM  
I have never come across a lis parden in my travels with HOA's and one was not filed on her property in this case.

Been there, Done that
MelissaP1
(Alabama)

Posts:8396


07/04/2019 12:55 PM  
What I am saying about proof is letters, documents, witnesses... Something TANGIBLE. Words are not tangible or emotions.

You haven't showed proof that the HOA isn't letting your Escrow go because of your lawsuit. So far it's been just words and your opinion of why. You say there isn't a lien or a notice?

What it looks like to me is: You got your lawyer/neighbor to sue the HOA based on what you believe to be the wrong way of doing things. That being changing the documents in such a way that certain things are not applicable. You feel that if they change back then you and your neighbors wishes would be fulfilled. That isn't a lawsuit for money but for an injunction.

Your HOA on the other hand, had to contact a lawyer in order to defend themselves against your lawsuit. In their eyes it is a frivolous lawsuit. In many states if a lawsuit is to be found frivolous or baseless then the person bringing the suit has to pay the HOA their legal fees. That being the HOA would NOT had to consult a lawyer to pay those fees if the frivolous suit had not been brought. Considering your HOA is incorporated it has to be represented in court by a lawyer or by someone the HOA deems responsible to do it. (However, who is going to send a non-lawyer person to represent them in court?)

So now your HOA has decided to put the 12K of legal expenses they incurred onto your account. Where else were they going to put them? Just suck up the 12K in their budget? They view it as your fault they incurred these fees. Plus your no longer qualified to bring a suit if your no longer an owner/member. So they figure the court case is going to be tossed out of court.

Now they have put that 12K onto your account and won't release your escrow until you pay all dues/fees you owe. Your real fight now is proving that you don't owe them 12K in legal fees to be charged to your account. It's not to continue this lawsuit. Which by the way from my own experience...If you don't have ANYONE that says "I believe in your cause here is $100 toward your legal fees..." You are not doing anyone any favors or being their hero. Your just the person who is footing the legal bill and case. Which by the way they are paying for them to win against you every time they pay their dues.. Saying "Let me know how it goes..." Does NOT translate into "Hope you win and I am supporting you". It means "Thanks but I am not that interested in the whole thing".

Believe me, I fought many battles for my HOA. My goal was to always to make a "Bigger" fish to come along to eat me. If you can't feed the fish around you, then why be the biggest fish in the tank?

Former HOA President
WendyP5
(California)

Posts:43


07/04/2019 2:12 PM  
'You haven't showed proof that the HOA isn't letting your Escrow go because of your lawsuit. So far it's been just words and your opinion of why. You say there isn't a lien or a notice? "

Melissa, I haven't shown you proof, but I have the demand letter that claims "We have spent in excess of $12,000 in legal fees due to a law suit she filed". Personally, it baffles me that the escrow company takes that statement as a legitimate demand for payment. You were the president of an HOA, did you sidestep due process too as a rule?

But, that isn't what the law suit is about. It's about an unelected board, who in a secret meeting, where there was no quorum or minutes, decided to edit the CC&Rs to strike any reference to the law which the CC&Rs declare they are subject to, without consulting the membership. It's about asking the court to restore the CC&Rs. If the membership still wants to be free of the sweeping rights and protections that the law provides them, they can vote to endorse the changes, and they can refile the CC&Rs legally. But this is a membership issue, that effects the very nature of the HOA.

The conveyance of the walkway areas to each individual owner affected is something that requires a secret ballot and a vote anyway, if that's what homeowners hoping for. But, I don't see the current BOD allowing that to happen. It's not what they really want. They just don't want to be subject to accountability, in my opinion.

I don't know why you're so angry with me and feel the need to shame and insult me. You make a lot of assumptions. You know nothing about me and my relationship with my neighbors or what does and does not anger them to action or apathy. I have proof of everything that I've alleged, but I don't need to show it to you. If you don't believe me, that's your prerogative. I have no desire to convince you of anything.

I haven't asked anyone for money, because I haven't had to spend a penny on this suit. My lawyer is footing the bill. Besides, it's not my style to beg for money. But plenty of homeowners have offered to come to court to show their support and even testify, if necessary.

Like I said, the HOA attorney only became aware of this issue yesterday afternoon. We'll see if we can get that particular statement on the demand letter, whining about how much money they've had to spend, removed. Fingers crossed. Updates will be forthcoming.


PaulJ6
(New York)

Posts:184


07/04/2019 2:47 PM  
Wendy, if you're not financially harmed by what the board did, and you're moving, I don't see why you'd be proceeding with this suit.

You can usually file a suit for breach of contract if governing documents are violated (which appears to be what happened in this case, as the amendment provisions were not followed), and seek monetary damages. Wasn't your property value affected, or didn't you suffer some type of monetary harm?

That's what I would do, and I would also go after the board members individually for damage arising from breach of fiduciary duty.
MelissaP1
(Alabama)

Posts:8396


07/04/2019 3:34 PM  
PaulJ… Remember she lost the home to a fire. Just selling the lot. So there is already diminished property value there. Except sounds like insurance paid already for the loss of the property. They are just selling the empty lot so not to rebuild on it.

I never said you were going after any money in your lawsuit. The HOA IS going after theirs they were forced to spend to defend against your lawsuit. You cost the HOA which is made up of ALL your neighbors 12K in legal expenses. Are you saying that the HOA should eat that money? Or what you call "whining"? You cost me 12K in legal fees, I'd come after you too.

I figured your lawyer was footing the bill for the whole thing. Kind of obvious. Which makes your situation even worse. My bet is your lawyer is telling you "I will do whatever you tell me to do" aren't they? I hear a lawyer telling me that I start asking a LOT of questions... Especially why if they own a 30 share in the HOA they are not your co-filer? Why is it just you?

Free or not free your lawyer isn't doing you any favors. The favor they would be doing would be to be part of the lawsuit. Plus hiring another lawyer to represent a bigger party who is upset.

The truth is that you caused yourself to be in this position. I'd have your lawyer find a way to get that 12K bill off your amount owed than worry about your existing lawsuit. Someone will pick up the battle if interested enough.

Former HOA President
WendyP5
(California)

Posts:43


07/04/2019 4:12 PM  
I didn't force the HOA to break the law and violate the rights and privileges of the membership. I didn't force them to illegally edit the CC&Rs.

The money the HOA is spending should have been covered by their insurance, but it isn't, because they are deliberately breaking the law and the insurance company won't pay legal fees to protect deliberate law breakers.

Anyway, the board "stole" the members' money, that was supposed to be held in a reserve fund for maintenance and repair of common areas, among other things, and they designated that money a dedicated legal fund. It's just a matter of time before another homeowner has a problem with tree roots buckling the walkway creating a liability for the HOA. They could get sued if someone has an accident and gets hurt because of poor maintenance. I want the CC&Rs restored so that members can benefit from their own money, instead of being threatened with lawsuits if they protest, paid for by their own money.

The HOA is not justified in their strategy to extort money from me by blocking my escrow, because they have paid legal fees for a case that has not yet been litigated. They haven't won. They're trying to bypass the courts and grab money that needs to be awarded through the courts. What they're doing is illegal, and they're violating my rights. But, that's par for the course for this board, who believes that they are above the law.
WendyP5
(California)

Posts:43


07/04/2019 4:20 PM  
If they withdraw they demand and my escrow closes, I'll have the case dismissed, without prejudice of course, and walk away. IF they don't, we will ask for an emergency hearing and ask the judge to bar them attaching my escrow until the case is resolved, one way or the other.


PaulJ6
(New York)

Posts:184


07/04/2019 4:21 PM  
I think I'd drop the suit WITH prejudice to get the escrow issue resolved.

Let someone else fight this.
WendyP5
(California)

Posts:43


07/04/2019 4:46 PM  
I'm not sure, but I think if it's drop "with prejudice" it will make it easier for the HOA to claim they deserve their legal fees paid, and sue me.
RichardP13
(California)

Posts:3764


07/04/2019 4:51 PM  
No one is understanding that the HOA can't charge her any money for legal fees until there is a decision is rendered.

Wendy, you to have someone contact the escrow company and get that straighten out.

Been there, Done that
WendyP5
(California)

Posts:43


07/04/2019 5:20 PM  
My attorney and the buyer's real estate agent tried to talk to them, to no avail. It's going to take the HOA or the HOA attorney to fix this.
PaulJ6
(New York)

Posts:184


07/04/2019 5:34 PM  
Posted By WendyP5 on 07/04/2019 4:46 PM
I'm not sure, but I think if it's drop "with prejudice" it will make it easier for the HOA to claim they deserve their legal fees paid, and sue me.




There would be a settlement agreement and release signed in connection with dropping the suit, so the HOA couldn't come after you (if it followed the settlement agreement).

Based on your most recent post, it sounds like they're digging in. In this situation, they're probably mad and figured that they have you because of the sale. I'd throw everything you can at them (figuratively) to get cash damages for things that insurance won't cover. That could be painful for them so they might stop then.
RichardP13
(California)

Posts:3764


07/04/2019 7:54 PM  
Posted By WendyP5 on 07/04/2019 5:20 PM
My attorney and the buyer's real estate agent tried to talk to them, to no avail. It's going to take the HOA or the HOA attorney to fix this.



Sounds like you have it handled then.

Been there, Done that
MelissaP1
(Alabama)

Posts:8396


07/04/2019 8:03 PM  
Starting to sound like a "Peeing contest" and someone wants to keep standing in the "rain".

Former HOA President
RichardP13
(California)

Posts:3764


07/04/2019 10:11 PM  
Posted By MelissaP1 on 07/04/2019 8:03 PM
Starting to sound like a "Peeing contest" and someone wants to keep standing in the "rain".



I heard Alabama is a leader in "peeing contests"

Been there, Done that
MelissaP1
(Alabama)

Posts:8396


07/05/2019 4:03 AM  
I thought it was California that had "Golden Showers"...

The OP said they weren't letting this case go until the HOA let's their stance go. It's also a case that needs to be let go altogether. No one is winning. No one is joining it either. It's a Peric victory.

Former HOA President
PaulJ6
(New York)

Posts:184


07/05/2019 4:14 AM  
Posted By MelissaP1 on 07/05/2019 4:03 AM


The OP said they weren't letting this case go until the HOA let's their stance go. It's also a case that needs to be let go altogether. No one is winning. No one is joining it either. It's a Peric victory.




I agree. OP, drop the case in exchange for the HOA dropping the $12k demand. Let your lawyer find a different plaintiff- or let your lawyer be the plaintiff.
MelissaP1
(Alabama)

Posts:8396


07/05/2019 4:51 AM  
Look I understand the whole "Who else will?" argument. Been there... Done that... It's time to let it go. Can not emphasize this enough. Your lawyer may not be charging you but they also aren't really joining you either. Others haven't contributed a dime or a name either.


When I became a board member/President there was a group of people that were a bit "greedy". Their intentions were not "healthy" for the HOA. I spent 3 years protecting my neighbors/members from this group. They were always indicating things like I was lying, calling me "Dictator", and trying to get me to spend money on their ideas. When I decided to move and leave, guess who got voted in? I stayed as a board member to help them out. (My house was rental there). I was actually physically attacked by one of these people! Ran out of a meeting.


Mind you the HOA had been largely neglected and in bad condition prior to me becoming President. Fixed the place up and got it on stable footing. These people proceeded to destroy about everything in 6 months! It was a terrible situation. No one was happy with this group or their use of the money.


You know what? I had to let it go. It hurt me to do it. I even did similar to you and tried to sue them for an illegal special assessment. It ended up that you can't save everyone. It's NOT your job to do so. It's everyone else's.


From what I see is this is emotional. Doesn't help your budget or life. I learned to let it go and never look back.

Former HOA President
WendyP5
(California)

Posts:43


07/05/2019 7:14 AM  
Posted By PaulJ6 on 07/05/2019 4:14 AM
Posted By MelissaP1 on 07/05/2019 4:03 AM


The OP said they weren't letting this case go until the HOA let's their stance go. It's also a case that needs to be let go altogether. No one is winning. No one is joining it either. It's a Peric victory.




I agree. OP, drop the case in exchange for the HOA dropping the $12k demand. Let your lawyer find a different plaintiff- or let your lawyer be the plaintiff.




Paul,
This issue of demanding "in excess of $12,000" just came up Tuesday afternoon. We spent all day Wednesday going back and forth with the buyer, the escrow company and trying to negotiate with the HOA officers. Late afternoon, the HOA attorney and My attorney finally spoke. My attorney the related to me that their attorney was unaware of the demand. What he also related was that their attorney's attitude was "we're still going to come after her for legal fees"...even though the case was dropped because of her lack of legal standing, due to the sale of her property.

The next step, as far as the demand letter and escrow is a conversation between the HOA officers and their lawyer. I don't expect any movement until Monday.
WendyP5
(California)

Posts:43


07/05/2019 7:18 AM  
Posted By MelissaP1 on 07/05/2019 4:51 AM
Look I understand the whole "Who else will?" argument. Been there... Done that... It's time to let it go. Can not emphasize this enough. Your lawyer may not be charging you but they also aren't really joining you either. Others haven't contributed a dime or a name either.


When I became a board member/President there was a group of people that were a bit "greedy". Their intentions were not "healthy" for the HOA. I spent 3 years protecting my neighbors/members from this group. They were always indicating things like I was lying, calling me "Dictator", and trying to get me to spend money on their ideas. When I decided to move and leave, guess who got voted in? I stayed as a board member to help them out. (My house was rental there). I was actually physically attacked by one of these people! Ran out of a meeting.


Mind you the HOA had been largely neglected and in bad condition prior to me becoming President. Fixed the place up and got it on stable footing. These people proceeded to destroy about everything in 6 months! It was a terrible situation. No one was happy with this group or their use of the money.


You know what? I had to let it go. It hurt me to do it. I even did similar to you and tried to sue them for an illegal special assessment. It ended up that you can't save everyone. It's NOT your job to do so. It's everyone else's.


From what I see is this is emotional. Doesn't help your budget or life. I learned to let it go and never look back.




Yes, this is what I expected.

Melissa, this isn't about you. It's not that our experiences are so different, it's just that you're projecting your exasperation on me. Yes, there's emotion baggage, but I've kept all that out of this thread, and indeed out of lawsuit.

I won't be extorted, nor do I relish suffering fools.

RichardP13
(California)

Posts:3764


07/05/2019 7:54 AM  
In Southern California, we're dealing with earthquakes. I also have to go back to my history books because, well, i must have missed it, we had airports in 1775. Who knew!

Been there, Done that
WendyP5
(California)

Posts:43


07/05/2019 9:21 AM  
Good news! I just received a new, revised demand letter from the HOA that excludes their legal fees demand!

Thank you everyone for you interest, input and support! Especially Richard, Augustus and Paul!

Have a wonderful long weekend, everyone!
AugustinD


Posts:1886


07/05/2019 10:09 AM  
I appreciate the update, Wendy. Learning why some California HOA boards think their HOA is not subject to Davis-Stirling has been interesting. If you move, I kind of hope your attorney finds another plaintiff and gets to a court ruling, so we can see how this turns out. I hope escrow is no longer held up and your sale is successful. -- Augie
PaulJ6
(New York)

Posts:184


07/05/2019 1:06 PM  
Wendy, that's great news.

Now that they've showed some weakness, I would have your lawyer examine their insurance policy and would then throw the kitchen sink at them (figuratively), pursuing them for all applicable monetary damages that aren't covered by insurance.

They might enjoy that.
PaulJ6
(New York)

Posts:184


07/05/2019 1:07 PM  
Wendy, that's great news.

Now that they've showed some weakness, I would have your lawyer examine their insurance policy and would then throw the kitchen sink at them (figuratively), pursuing them for all applicable monetary damages that aren't covered by insurance.
PaulJ6
(New York)

Posts:184


07/05/2019 1:08 PM  
Wendy, that's great news.

Now that they've showed some weakness, I would have your lawyer examine their insurance policy and would then throw the kitchen sink at them (figuratively), pursuing them for all applicable monetary damages that aren't covered by insurance.

They might enjoy that.
WendyP5
(California)

Posts:43


07/05/2019 1:16 PM  
Posted By PaulJ6 on 07/05/2019 1:08 PM
Wendy, that's great news.

Now that they've showed some weakness, I would have your lawyer examine their insurance policy and would then throw the kitchen sink at them (figuratively), pursuing them for all applicable monetary damages that aren't covered by insurance.

They might enjoy that.




News to nice you said it thrice! LOL

Thanks again guys!
CathyA3
(Ohio)

Posts:338


07/05/2019 2:32 PM  
Posted By PaulJ6 on 07/05/2019 1:08 PM
Wendy, that's great news.

Now that they've showed some weakness, I would have your lawyer examine their insurance policy and would then throw the kitchen sink at them (figuratively), pursuing them for all applicable monetary damages that aren't covered by insurance.

They might enjoy that.




Ya know, there is such a thing as being a poor winner. If you've gotten what you want, why on earth would you risk re-starting the p***ing contest when there is some urgency in resolving this asap?
AugustinD


Posts:1886


07/05/2019 2:38 PM  
Posted By CathyA3 on 07/05/2019 2:32 PM
Posted By PaulJ6 on 07/05/2019 1:08 PM
Now that they've showed some weakness, I would have your lawyer examine their insurance policy and would then throw the kitchen sink at them (figuratively), pursuing them for all applicable monetary damages that aren't covered by insurance. They might enjoy that.


Ya know, there is such a thing as being a poor winner. If you've gotten what you want, why on earth would you risk re-starting the p***ing contest when there is some urgency in resolving this asap?


Indeed. Then there's the reality that there are no monetary damages that would meet the requirements of statute and case law. Toss in that the instant the lot is sold, the OP loses standing to pursue injunctive relief. As she knows, but for the archives.

MarkW18
(Florida)

Posts:48


07/05/2019 2:49 PM  
I think most of you made this a pissing contest. Happy?
MelissaP1
(Alabama)

Posts:8396


07/05/2019 3:34 PM  
Not until I see a statue put up with wings on it memorializing this whole contest...

Former HOA President
CathyA3
(Ohio)

Posts:338


07/05/2019 4:06 PM  
Posted By MarkW18 on 07/05/2019 2:49 PM
I think most of you made this a pissing contest. Happy?




I was referring to the P***ing contest between the OP and her HOA that would start up again if she made additional demands after the HOA withdrew their demand for reimbursement of legal expensss. Probably didn't express myself well.

We regulars don't have p***ing contests. WE have lively discussions. :-)
PaulJ6
(New York)

Posts:184


07/05/2019 5:46 PM  
Run them over! (Figuratively, of course.)
WendyP5
(California)

Posts:43


07/05/2019 8:10 PM  
The HOA hasn't withdrawn their demand for payment. They just can't take it through the sale of my land through my escrow. They have to get it through a court judgement, which they're still threatening to do.



RichardP13
(California)

Posts:3764


07/05/2019 8:44 PM  
Just had a 7.1 earthquake, which they say is a per-curser to a larger one.

Been there, Done that
MelissaP1
(Alabama)

Posts:8396


07/06/2019 12:03 AM  
So your breaking off of California Richard? Stay safe! Not sure what you do in an Earthquake. Sleep outside or stand in doorway? We have tornadoes. Your house is there or not there...

Just wanted to point out one thing about the OP's situation. The money they claim owed is akin to "damages". That is what the HOA/lawyer considers this. Best example could be if you borrowed someone's car and wrecked it. They want you to pay their "Deductible" to get it fixed. No this wasn't an insurance claim. However, we also don't know what the HOA's deductible is for their insurance. Will tell you ours was in the 20K range. Since they could not file the claim as the OP stated, they are going to recoup their "damages" by making the OP pay. They would never had to pay the legal expenses (Which could have been just for advice) if the OP had never filed suit.

Our HOA can make you pay for any repairs we do to correct a violation and lien you for that expense if left unpaid. It's considered "damages". It's my belief this is what the lawyer for the HOA is viewing this 12K as. The advice is what they have given the HOA. Which is why they can be pursuing the OP for the expense.

Former HOA President
WendyP5
(California)

Posts:43


07/06/2019 7:45 AM  
Melissa, Your HOA is probably operating within the law, and legally exercising their rights. This HOA is not. Their right to break the law hasn't been successfully litigated and they have no ruling, so good luck to them if they try and claim the legal fees that they spent trying to defend their illegal actions. Our complaint listed 60 illegal actions that resulted in their defiance of the law, the CC&Rs and the by laws.



AugustinD


Posts:1886


07/06/2019 9:17 AM  
A California attorney's response to whether a defendant is entitled to an award of its attorney fees when the plaintiff drops the lawsuit:

"The general rule is that litigants are responsible for their own attorneys' fees, win or lose. The prevailing party in a lawsuit is typically not entitled to an award of attorneys' fees unless (1) the lawsuit arises out of a written agreement between the parties which contains an attorneys' fees clause, or (2) a cause of action in the lawsuit was brought under a statute that specifically provides for an award of attorneys' fees.

In California, the definition of 'prevailing party' includes a defendant in whose favor a dismissal is entered. See Code of Civil Procedure Sec. 1032. If you dismiss your lawsuit, that will make the defendant the prevailing party. The prevailing party is entitled to recover any and all costs listed in Code of Civil Procedure Sec. 1033.5."

See
http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1032.&lawCode=CCP
and
http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1033.5.&lawCode=CCP

If the suit was brought under Davis-Stirling statute, then Davis-Stirling Section 5975 states: "(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs."

If the HOA's Declaration says the prevailing parties is entitled to attorney's fees, then this too may result in the court ordering the plaintiff to pay the defendat-HOA's attorney's fees.

See https://www.avvo.com/legal-answers/if-i-withdraw-my-lawsuit--can-i-be-sued-for-attorn-3206391.html
RichardP13
(California)

Posts:3764


07/06/2019 10:30 AM  
Augustin,

Have no idea what you end game is here. It appears you just like stoking fear in everyone with your supposedly legal "expertise".

The facts are this is a age restricted type HOA with no management company run by three old farts and an attorney that could care less about the law, more about scare tactics. In a voluntary HOA you might get to change the governing doc without a membership, but not in a mandatory one. This is a mandatory HOA.

This association was formed in 1979, as a common interest development, with a PUD rider attached to title. The argument I believe being made is they aren't subject to Davis Stirling, which in theory they could argue as Davis-Stirling didn't come into existence until 1985. But they are a common interest development under Davis Stirling by a signed SI-CID statement dated 5/12/2004. It states , The above named association is formed to manage a Common Interest Development under the California Davis Stirling Common Int erst Development Act. This statement is required by Civil Code 1363.6(a)(1) and must not be altered.

I rest my case, so should you.

Been there, Done that
RichardP13
(California)

Posts:3764


07/06/2019 10:53 AM  
While we are discussing Davis-Stirling, there is a video maybe worth watching on exactly how it came about and how it got it's name: It is the video that is 7:10 minutes long.

https://www.davis-stirling.com/HOME/Statutes/Davis-Stirling-Act-History

Been there, Done that
AugustinD


Posts:1886


07/06/2019 10:58 AM  
Richard, respond to the case law I cited earlier, and you and I might have something to discuss. From Mount Olympus Property Owners Assn. v. Shpirt (1997), as cited by at least a few attorneys online:
---Start Quote---
"The parties dispute whether the Mount Olympus tract is a common interest development for purposes of the Davis-Stirling Common Interest Development Act (the Act). The parties focus on the portion of the Act that defines a common interest development as "(1) A community apartment project. [¶] (2) A condominium project. [¶] (3) A planned development. [¶] (4) A stock cooperative." (Civ. Code, § 1351, subd. (c).) The statute further defines "planned development," the only category possibly applicable here, as follows: " 'Planned development' means a development (other than a community apartment project, a condominium project, or a stock cooperative) having either or both of the following features: [¶] (1) The common area is owned either by the association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area. [¶] (2) A power exists in the association to enforce an obligation of an owner of a separate interest with respect to the beneficial use and enjoyment of the common area by means of an assessment which may become a lien upon the separate interests in accordance with Section 1367." (Civ. Code, § 1351, subd. (k).)

Civil Code section 1374 goes on to state that "[n]othing in this title may be construed to apply to a development wherein there does not exist a common area as defined in subdivision (b) of Section 1351, nor may this ⏇ Cal. App. 4th 895] title be construed to confer standing pursuant to Section 383 of the Code of Civil Procedure to an association created for the purpose of managing a development wherein there does not exist a common area." (Civ. Code, § 1374.) "Common area" is defined by Civil Code section 1351, subdivision (b), as "the entire common interest development except the separate interests therein."
---End Quote---

A HOA can file whatever papers it wants with whatever entity. If the HOA does not meet the requirements that Davis-Stirling delineates for applicability, then Davis-Stirling does not apply to the HOA. (Doh.)

If the OP's attorney filed suit under the Davis-Stirling Act, and then she withdrew the suit, then she may very well be ordered to pay attorney's fees to the HOA.

As for the escrow situation: It appears the HOA reversed course very soon after the HOA attorney found out what was going on (and over a holiday period to boot), I am betting that the HOA attorney read the alleged 'three old farts' the riot act about clouding title inappropriately; explained to the older gentlemen what the HOA could be facing if the sale fell through; and set the HOA Board straight about the legal way to proceed. Hence the OP has a new demand letter that appears to be taking the issue of attorney's fees out of the picture, as far as the OP's selling her lot is concerned. The HOA's attorney sounds intelligent enough.

You and I do not agree. Get over it.
WendyP5
(California)

Posts:43


07/06/2019 11:02 AM  
Thanks for the info AugustinD,

I noticed that commentary on code discusses what happens when a plaintiff voluntarily dismisses their law suit, in order to avoid a judgment. In my case the dismissal isn't voluntary. Having sold my property I will no longer have legal standing.

I'm kinda going off this:

"American Rule. “With regard to an award of attorney fees in litigation, California generally follows what is commonly referred to as the ‘American Rule,’ which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. The American Rule is codified in Code of Civil Procedure section 1021, which states in relevant part: ‘Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . .’” (Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1142.)


Pre-Litigation Legal Fees. Neither owners nor associations are entitled to legal fees incurred in a dispute that does not lead to litigation. For example, each side hires a lawyer and exchanges a series of letters with demands and counter-demands. If the matter is resolved or dies away, neither side is entitled to their attorney's fees. Civil Code 5975 only authorizes a prevailing owner to recover their reasonable attorneys’ fees and costs following the conclusion of a successful action (i.e. lawsuit)"

https://www.davis-stirling.com/HOME/Attorneys-Fees

Note, this page is sponsored by the HOA's new attorneys. There are some interesting cases on that page.

Our governing documents indicate that a prevailing party, whether a homeowner or the HOA, can recover legal fees having successfully filed to enforce the governing documents. In this case, it's a homeowner, me, trying to get the HOA to enforce the CC&Rs, while the HOA is arguing that they don't have to. Not sure how the HOA can successfully argue that in court, and still win legal fees. But, anything can happen, right?






WendyP5
(California)

Posts:43


07/06/2019 11:34 AM  
AugustinD, This:

" (1) The common area is owned either by the association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area."

...applies to our development. The CC&Rs define the homeowners' "LOT" as their parcel, including the "common area", and stipulates that the walkways are established throughout the community for the common use and enjoyment of the membership and residents of the development.

The membership could vote to have those areas conveyed to each separate interest owner, but in 1998 they voted for CC&Rs that declared the association subject to Davis Storing, ensured the "common interest" status of the walkways, the lots and the nature of the HOA's authority.

They can change the CC&Rs any time they want, through a legal vote. Not through a secret meeting, with no quorum or minutes and without the consent and/or the consultation of the membership.


WendyP5
(California)

Posts:43


07/06/2019 11:36 AM  
"They can change the CC&Rs any time they want, through a legal vote. Not through a secret meeting, with no quorum or minutes and without the consent and/or the consultation of the membership."

And, unelected to boot!
RichardP13
(California)

Posts:3764


07/06/2019 11:37 AM  
Augie,

Keep your day job, as you would never make it as a lawyer. I know Mt Olympus well, as I put in a polling place there for the 2001 Los Angeles City Elections. This is a community of multi-million dollar homes without an common area that formed a property association, thus not subject to the Davis Stirling Common Interest Development Act, unless you count the very nice monument at the entrance to the nice homes.

My wife has a rental property in Van Nuys adjacent to a similar type community, Sherwood Forest Homeowners Association, that is voluntary and has no covenants or restrictions, but voluntarily collect dues.

There is a small difference here. That case went to trial, Wendy's hasn't.

Been there, Done that
RichardP13
(California)

Posts:3764


07/06/2019 11:40 AM  
You guys have fun..

Been there, Done that
WendyP5
(California)

Posts:43


07/06/2019 11:52 AM  
Stay safe Richard! We're rocking and rolling here in Hemet too!

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