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Subject: Suing Board members, Not the HOA Board
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Author Messages
JonD1


Posts:0


06/26/2015 6:59 AM  
Walter in my view you are delusional. It is always someone else's responsibility to do as you say. All the board had to do was return the money as WALTER directed. Are you kidding.

What about the money YOU spent? Will you be paying that back? Of course not!

And if and when the court rules against you will you reimburse the HOA the legal costs they covered due to YOUR actions. Of course not.

Doing the right and honorable thing are only required of others in Walter's world.

And your insulting comments about your fellow homeowners demonstrate you have no real respect for them or desire to serve their interests.
Rather you have contempt because they might not follow YOUR direction. So the idea of your protecting the HOA is pure BS.

This is all about Walter the bitter man who will do whatever it takes to prove his point. In my view quite a sad place to find yourself when you have no regard for the board or even your neighbors. Being right is all that ever mattered.

I certainly don't wish you luck I pity your community. In the end win, lose or draw Walter your efforts will accomplish little.

Let's wait and see.....
WalterM3
(Georgia)

Posts:371


06/26/2015 7:46 AM  
"Rather you have contempt because they might not follow YOUR direction. So the idea of your protecting the HOA is pure BS."

I never said I was protecting the HOA. I am doing this strictly for my own interest.

As in many HOA’s the residents scatter like sheep when there is an upset.

As for my chances of winning; obviously I think they are pretty good. Every case has two sides. If I don’t have a winning case – that is up to the judge.

Did I say that the defendants Motion to Dismiss is based only on my not having standing to sue? Well, that only would apply in a court where the Georgia Civil Practice Act is in force. It doesn’t apply in Magistrate court. I don’t think the court will allow that dodge. In their answers, they don’t even pretend that they followed the Bylaws and statutes: ‘[defendant] denies that funds were not disbursed in accordance with the rules and pattern of practice of the … Homeowners Association.”

What on earth does that mean?


If I were to lose, the HOA will still bear the costs of deploying the attorney. People are pretty pusillanimous, but when it comes to a secret ballot, they won’t vote for people who wasted their money to try and get out of their disreputable acts by using other people’s money.




Walt
MelissaP1
(Alabama)

Posts:10521


06/26/2015 8:12 AM  
The HOA will have to bare the cost of the attorney? Doesn't that mean that YOU Walter will be contributing to such costs? Considering you are a member of the HOA and a HOA is ONLY funded by it's members... Gee... I wonder why I always say "Suing your HOA is suing yourself and your neighbors"... Oh nevermind not in Walter's world that would ever apply... But I would ask your lawyer if what I say is true statement or not... Or should I ruin your reality?

Former HOA President
TimB4
(Virginia)

Posts:17766


06/26/2015 8:12 AM  
Posted By WalterM3 on 06/26/2015 7:46 AM

In their answers, they don’t even pretend that they followed the Bylaws and statutes: ‘[defendant] denies that funds were not disbursed in accordance with the rules and pattern of practice of the … Homeowners Association.”

What on earth does that mean?




That means that they are saying that they, like you, followed the normal procedure and practice that was in place at the time within your Association to engage the services of the attorney.

Like you, they may have failed to have gotten prior approval, but that it was common practice to not seek prior approval.

You specified that there is now a policy in place that the Board adopted requiring board approval prior to contacting the attorney. Therefore, they learned that past practice wasn't good enough and took steps to correct that procedure.




WalterM3
(Georgia)

Posts:371


06/26/2015 8:23 AM  
Posted By TimB4 on 06/26/2015 8:12 AM
Posted By WalterM3 on 06/26/2015 7:46 AM

In their answers, they don’t even pretend that they followed the Bylaws and statutes: ‘[defendant] denies that funds were not disbursed in accordance with the rules and pattern of practice of the … Homeowners Association.”

What on earth does that mean?




That means that they are saying that they, like you, followed the normal procedure and practice that was in place at the time within your Association to engage the services of the attorney.

Like you, they may have failed to have gotten prior approval, but that it was common practice to not seek prior approval.

You specified that there is now a policy in place that the Board adopted requiring board approval prior to contacting the attorney. Therefore, they learned that past practice wasn't good enough and took steps to correct that procedure.








To bad the Bylaws read:

"Action Without A Meeting. Any action by the Board of Directors or by any committee appointed by the Board of Directors required or permitted to be taken at any meeting may be taken without a meeting if, prior to such action, one or more written consents describing the action taken are signed by no less than a majority of the members of the Board of Directors or of such committee, as the case may be. Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Directors or of the appropriate committee and such consent or consents shall be treated for all purposes as a vote at a meeting."

The –problem— is that never before in HOA affairs had anyone executed any “Actions Without Meeting”. All the HOA work was covered at the monthly meetings. But THIS group of Board members started spending money they didn’t want people to know about. They did it for two years. They arranged to spend a lot of money –between- meetings because they didn’t want –me- to know about it. I was a Board member. And in so doing, they violated the statutes – the laws that govern nonprofit corporations.


Now they are in court over it. They are using the HOA attorney to attempt to secure a dismissal because they don’t want to have to discuss it. But they will have to.

It may hinge upon how important the Court thinks it is to obey the laws of Georgia.


Walt




NpS
(Pennsylvania)

Posts:4215


06/26/2015 9:06 AM  
Posted By WalterM3 on 06/26/2015 8:23 AM
Posted By TimB4 on 06/26/2015 8:12 AM
Posted By WalterM3 on 06/26/2015 7:46 AM

In their answers, they don’t even pretend that they followed the Bylaws and statutes: ‘[defendant] denies that funds were not disbursed in accordance with the rules and pattern of practice of the … Homeowners Association.”

What on earth does that mean?


That means that they are saying that they, like you, followed the normal procedure and practice that was in place at the time within your Association to engage the services of the attorney.

Like you, they may have failed to have gotten prior approval, but that it was common practice to not seek prior approval.

You specified that there is now a policy in place that the Board adopted requiring board approval prior to contacting the attorney. Therefore, they learned that past practice wasn't good enough and took steps to correct that procedure.



To bad the Bylaws read:

"Action Without A Meeting. Any action by the Board of Directors or by any committee appointed by the Board of Directors required or permitted to be taken at any meeting may be taken without a meeting if, prior to such action, one or more written consents describing the action taken are signed by no less than a majority of the members of the Board of Directors or of such committee, as the case may be. Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Directors or of the appropriate committee and such consent or consents shall be treated for all purposes as a vote at a meeting."

The –problem— is that never before in HOA affairs had anyone executed any “Actions Without Meeting”. All the HOA work was covered at the monthly meetings. But THIS group of Board members started spending money they didn’t want people to know about. They did it for two years. They arranged to spend a lot of money –between- meetings because they didn’t want –me- to know about it. I was a Board member. And in so doing, they violated the statutes – the laws that govern nonprofit corporations.

Now they are in court over it. They are using the HOA attorney to attempt to secure a dismissal because they don’t want to have to discuss it. But they will have to.

It may hinge upon how important the Court thinks it is to obey the laws of Georgia.


Wasting your time Tim. Walter may have finally accepted that no one is going to arrest his board members because it is not a criminal matter, but he remains clueless about how civil procedure works in the courts. Walter's case will probably be dismissed because he lacks standing - He demonstrated a total lack of understanding of the Crittenden case that he cited on the issue of standing. He's still hanging on to his claims that GA civil procedures can't be used in Magistrate Court even though I thought you did a nice job of demonstating that it could. Even if he survives the HOA's challenge to his standing, the relief he seeks is so nebulous and absurd that it won't be granted. And he won't understand that either.

His essential claim in his lawsuit is that a legal bill for work done by an attorney can be avoided entirely and not paid by the HOA if the approval rules were not strictly followed prior to payment. When the judge stops laughing at the absurdity of Walter's claims of right, Walter's case will be dismissed on whatever grounds needed in order to get back to important issues that need attention.

Sikubali jukumu. Read all posts at your own risk.
LarryB13
(Arizona)

Posts:4099


06/26/2015 9:22 AM  
Posted By NpS on 06/26/2015 9:06 AM

Walter's case will probably be dismissed because he lacks standing - He demonstrated a total lack of understanding of the Crittenden case that he cited on the issue of standing. He's still hanging on to his claims that GA civil procedures can't be used in Magistrate Court even though I thought you did a nice job of demonstating that it could. Even if he survives the HOA's challenge to his standing, the relief he seeks is so nebulous and absurd that it won't be granted. And he won't understand that either.

His essential claim in his lawsuit is that a legal bill for work done by an attorney can be avoided entirely and not paid by the HOA if the approval rules were not strictly followed prior to payment. When the judge stops laughing at the absurdity of Walter's claims of right, Walter's case will be dismissed on whatever grounds needed in order to get back to important issues that need attention.




Walter's misunderstanding of the law is monumental. He found a passage of Georgia law that allows the Magistrate's Court to hear cases without following the formal rules of civil procedure and interpreted that to mean the court need not follow any statutes at all.

In one of his earliest posts, Walter cited a paragraph of his CC&R's that requires the association to provide (and pay for) legal counsel whenever a board member or officer requires it. This is why Walter was able to run up a legal tab when he was on the board. Because of this mandate, the board did not need to approve the expense for the lawyer in advance as it had no power to disapprove it.

WalterM3
(Georgia)

Posts:371


06/26/2015 10:11 AM  
Posted By LarryB13 on 06/26/2015 9:22 AM
Posted By NpS on 06/26/2015 9:06 AM

Walter's case will probably be dismissed because he lacks standing - He demonstrated a total lack of understanding of the Crittenden case that he cited on the issue of standing. He's still hanging on to his claims that GA civil procedures can't be used in Magistrate Court even though I thought you did a nice job of demonstating that it could. Even if he survives the HOA's challenge to his standing, the relief he seeks is so nebulous and absurd that it won't be granted. And he won't understand that either.

His essential claim in his lawsuit is that a legal bill for work done by an attorney can be avoided entirely and not paid by the HOA if the approval rules were not strictly followed prior to payment. When the judge stops laughing at the absurdity of Walter's claims of right, Walter's case will be dismissed on whatever grounds needed in order to get back to important issues that need attention.




Walter's misunderstanding of the law is monumental. He found a passage of Georgia law that allows the Magistrate's Court to hear cases without following the formal rules of civil procedure and interpreted that to mean the court need not follow any statutes at all.

In one of his earliest posts, Walter cited a paragraph of his CC&R's that requires the association to provide (and pay for) legal counsel whenever a board member or officer requires it. This is why Walter was able to run up a legal tab when he was on the board. Because of this mandate, the board did not need to approve the expense for the lawyer in advance as it had no power to disapprove it.





I do have standing to bring this action on a derivative basis. Being generally familiar with the law, I knew I needed standing. Several months ago I contacted a lawyer licensed to practice in Georgia named Craig ... .

This is part of the e-mail exchange I had with him:

”Question

Craig, If the officers of the corporation (this is an HOA) did commit malfeasance and disburse money improperly, do I have standing as a member of the Association to take them to court?

Answer

Yes, you could personally or through an attorney bring an action against the directors and or officers for malfeasance or a similar action. The details of the civil case against the association would depend upon the specific factors in your case. Without knowing the specifics of your case ---- the suit could be in a derivative form, in other words you acting on behalf of the association. For an example of such a dispute, you can visit
http://caselaw.findlaw.com/ga-court-of-appeals/1584296.html."

Emphasis added.

One of the aspects of Magistrate Court is that you are not expected to know all the laws. Both sides lay out their cases and the judge makes a decision. Even if for some reason the judge were to find that obeying the statutes enacted in Georgia were not important in Georgia, I engaged an attorney licensed to practice in Georgia and he told me I had standing. I don't believe the judge will find fault with me for taking the word of a lawyer in this.

And yes, I know that the Civil Practice can be invoked into cases in Magistrate Court.

If it involves administering justice. Justice won't be served unless the defendants are sanctioned for ignoring the law.

Walt
JimR26
(Alabama)

Posts:27


06/26/2015 10:13 AM  
Walt: Boy howdy do you have these blockheads upset. They say they don't want to keep this forum going but they sure do jump in to put you down with insults and bad lawyering. If there are 1000 or 2000 posts to this, the regulars will all be saying the same thing. They are the bullies. You started out sitting down with them to have a nice conversation and now they are shouting and name calling. They have their fingers pointed right in your face and your back is to the wall! They've thrown their punches and you're still standing. I suspect you are feeling the same treatment in your HOA.

I maintain this does not hurt your HOA one iota. In the future the apathetic eggheads that live in your community may pay more attention to what is going on with the Board. More people need to challenge bad boards! (Yes, yes, I'll remind the other posters on this website that they are all the Apostles of Virtue ... you're all wonderful, if only the rest of us could have you as our Board Members, everything would be utopia in an HOA.)

Perhaps the Apostles of Virtue could come up with a uniform national form that buyers need to sign when they buy in an HOA ... i.e. "you must always be submissive to the demands of the blockheads who are on the Board". Something like that might get people's attention rather than signing that they've read the CC&Rs and ByLaws.
WalterM3
(Georgia)

Posts:371


06/26/2015 10:34 AM  
Posted By JimR26 on 06/26/2015 10:13 AM
Walt: Boy howdy do you have these blockheads upset. They say they don't want to keep this forum going but they sure do jump in to put you down with insults and bad lawyering. If there are 1000 or 2000 posts to this, the regulars will all be saying the same thing. They are the bullies. You started out sitting down with them to have a nice conversation and now they are shouting and name calling. They have their fingers pointed right in your face and your back is to the wall! They've thrown their punches and you're still standing. I suspect you are feeling the same treatment in your HOA.

I maintain this does not hurt your HOA one iota. In the future the apathetic eggheads that live in your community may pay more attention to what is going on with the Board. More people need to challenge bad boards! (Yes, yes, I'll remind the other posters on this website that they are all the Apostles of Virtue ... you're all wonderful, if only the rest of us could have you as our Board Members, everything would be utopia in an HOA.)

Perhaps the Apostles of Virtue could come up with a uniform national form that buyers need to sign when they buy in an HOA ... i.e. "you must always be submissive to the demands of the blockheads who are on the Board". Something like that might get people's attention rather than signing that they've read the CC&Rs and ByLaws.




This is a good website:


http://www.thehoaprimer.org/index.htm

"Welcome to theHOAprimer. The web book you should have read before you bought a home in a Common Interest Development.

The purpose of this website is awaken a sleeping public to a plague that is threatening to destroy the American dream of homeownership and undermine the common democratic principals so many have fought to preserve for over 200 years. This menace is the corporate, private government known as the Homeowners Association. As briefly as possible, I will tell you how this industry developed, how it works, and who is profiting from the scam. I've presented numerous examples of this world gone mad and offered a few suggestions as to how you might help to restore sanity to your neighborhood."

They have gone pretty nutty in my HOA. I am fighting them.

Walt
WalterM3
(Georgia)

Posts:371


06/26/2015 10:37 AM  


"Unlike the American system of government, a HOA has no system of checks and balances. HOA board members simultaneously occupy the legislative, judicial, and executive branches without oversight. The board creates rules without homeowner input. In disputes with homeowners, the board acts as accuser, judge, and jury."

The Lie: It’s a thankless job

That is a line that every board has used at one time or another. Often times it is true that some board members are under appreciated for the good they do. But if this really were such a miserable undertaking than why is it that some board members keep coming back again, and again, and again?

The truth is that, for some people, being a board member is a very satisfying position with a number of rewards and perks. The types of people that are attracted to, and truly enjoy, these volunteer positions, too often, turn out to be the neighborhood authoritarians, the control freaks; every neighborhood has them. Abrasive and or adversarial personality traits are not uncommon. These people are the lynchpin of the HOA system; management companies and association attorneys depend upon their willingness to engage in conflicts with homeowners to generate a steady flow of income. And, backed up as they are by an institution that would make any third world totalitarian dictator emerald green with envy, they generally prove to be quite up to the task."

http://www.thehoaprimer.org/commonlies.htm


And a lot of that type people keep blowing up this thread.

Walt
NpS
(Pennsylvania)

Posts:4215


06/26/2015 10:57 AM  
Posted By WalterM3 on 06/26/2015 10:11 AM
I do have standing to bring this action on a derivative basis. Being generally familiar with the law, I knew I needed standing. Several months ago I contacted a lawyer licensed to practice in Georgia named Craig ... .

This is part of the e-mail exchange I had with him:

”Question

Craig, If the officers of the corporation (this is an HOA) did commit malfeasance and disburse money improperly, do I have standing as a member of the Association to take them to court?

Answer

Yes, you could personally or through an attorney bring an action against the directors and or officers for malfeasance or a similar action. The details of the civil case against the association would depend upon the specific factors in your case. Without knowing the specifics of your case ---- the suit could be in a derivative form, in other words you acting on behalf of the association. For an example of such a dispute, you can visit
http://caselaw.findlaw.com/ga-court-of-appeals/1584296.html."

Emphasis added.

One of the aspects of Magistrate Court is that you are not expected to know all the laws. Both sides lay out their cases and the judge makes a decision. Even if for some reason the judge were to find that obeying the statutes enacted in Georgia were not important in Georgia, I engaged an attorney licensed to practice in Georgia and he told me I had standing.


Walter's lawyer said that Walter COULD have standing, but it would "depend upon the specific factors of your case."

Walter reads these words and interprets them to say that Walter absolutely does have standing.

Walter's lawyer cited to the Crittenden case. And Walter in another post said that the HOA lawyer, someone who IS familiar with the "specific factors" of Walter's case, relied on the Crittenden case to request dismissal of Walter's claims.

Between Walter and the HOA lawyer, who do I think understands how the Crittenden case applies to the "specific factors" of the case - Well, it's certainly not Walter. He can't even figure out what his own lawyer is saying.

I think your choice of the phrase "blinded by his agenda" was appropriate Tim.

Sikubali jukumu. Read all posts at your own risk.
WalterM3
(Georgia)

Posts:371


06/26/2015 11:13 AM  
Posted By NpS on 06/26/2015 10:57 AM
Posted By WalterM3 on 06/26/2015 10:11 AM
I do have standing to bring this action on a derivative basis. Being generally familiar with the law, I knew I needed standing. Several months ago I contacted a lawyer licensed to practice in Georgia named Craig ... .

This is part of the e-mail exchange I had with him:

”Question

Craig, If the officers of the corporation (this is an HOA) did commit malfeasance and disburse money improperly, do I have standing as a member of the Association to take them to court?

Answer

Yes, you could personally or through an attorney bring an action against the directors and or officers for malfeasance or a similar action. The details of the civil case against the association would depend upon the specific factors in your case. Without knowing the specifics of your case ---- the suit could be in a derivative form, in other words you acting on behalf of the association. For an example of such a dispute, you can visit
http://caselaw.findlaw.com/ga-court-of-appeals/1584296.html."

Emphasis added.

One of the aspects of Magistrate Court is that you are not expected to know all the laws. Both sides lay out their cases and the judge makes a decision. Even if for some reason the judge were to find that obeying the statutes enacted in Georgia were not important in Georgia, I engaged an attorney licensed to practice in Georgia and he told me I had standing.


Walter's lawyer said that Walter COULD have standing, but it would "depend upon the specific factors of your case."

Walter reads these words and interprets them to say that Walter absolutely does have standing.

Walter's lawyer cited to the Crittenden case. And Walter in another post said that the HOA lawyer, someone who IS familiar with the "specific factors" of Walter's case, relied on the Crittenden case to request dismissal of Walter's claims.

Between Walter and the HOA lawyer, who do I think understands how the Crittenden case applies to the "specific factors" of the case - Well, it's certainly not Walter. He can't even figure out what his own lawyer is saying.

I think your choice of the phrase "blinded by his agenda" was appropriate Tim.




You guys are going crazy on this.

From Crittenton et al:

"Furthermore, “[t]he determination of whether a claim is derivative or direct is made by looking to what the pleader alleged,” and “ it is the nature of the wrong alleged and not the pleader's designation or stated intention that controls the court's decision.”

I don't need a lawyer to tell me what this part of Crittenton says.

I am clearly alleging harm done by the defendants to the corporation (Association) as a whole, which gives me standing to act in derivative manner. I will receive no part of any monetary judgment. Any money judgment will go back to the Association – to benefit the home owners and to prompt members of the Board of Directors in future to better adhere to the rules that govern their conduct.

Walt

LarryB13
(Arizona)

Posts:4099


06/26/2015 11:25 AM  
Posted By WalterM3 on 06/26/2015 11:13 AM
I will receive no part of any monetary judgment.


The truest statement you have ever made.
WalterM3
(Georgia)

Posts:371


06/26/2015 11:25 AM  
"Walter's lawyer said that Walter COULD have standing, but it would "depend upon the specific factors of your case."

C'mon.

"Yes, you could personally or through an attorney bring an action against the directors and or officers for malfeasance or a similar action."

And:

"...the suit could be in a derivative form, in other words you acting on behalf of the association."

Which is exactly what I am doing.

Walt
JonD1


Posts:0


06/26/2015 11:27 AM  
So for $50 you get an e-mail exchange with a lawyer who admits he does not have the details in your own case.

Walter takes that high priced legal advice as Gospel.

Just when is the court date?

I wonder how Walter will explain all of this to himself should his efforts fail?

Maybe Jim the HOA wizard can explain it to him. Seems they both drink the same kobo laid.



WalterM3
(Georgia)

Posts:371


06/26/2015 12:02 PM  
Posted By JonD1 on 06/26/2015 11:27 AM
So for $50 you get an e-mail exchange with a lawyer who admits he does not have the details in your own case.







He sent me a link to a case that anyone can understand.

"Furthermore, “[t]he determination of whether a claim is derivative or direct is made by looking to what the pleader alleged,” and “ it is the nature of the wrong alleged and not the pleader's designation or stated intention that controls the court's decision.”

I am clearly alleging harm done by the defendants to the corporation (Association) as a whole, which gives me standing to act in derivative manner. I will receive no part of any monetary judgment. Any money judgment will go back to the Association – to benefit the home owners and to prompt individual members of the Board of Directors in future to better adhere to the rules that govern their conduct.



Walt
LarryB13
(Arizona)

Posts:4099


06/26/2015 1:04 PM  
Posted By WalterM3 on 06/26/2015 12:02 PM
He [the $50 online lawyer with no last name] sent me a link to a case that anyone can understand.



There is at least one person who failed to understand it and his name is Walter.
JonD1


Posts:0


06/26/2015 1:28 PM  
Walter all I need to know at this point would be when it the scheduled court date?

Then I can wait to hear from you just how your crusade to set things right was viewed by the court.

You repeating over and over again your same misguided points serves no person nor does it strengthen your case.

My personal hope would be your efforts fail. This is not about serving your community it is about your ego and desire
to punish those who you disagree with.

You are using the legal system to get your way. That in my view is shameful.

When's court??????? I will mark my calendar!

TimB4
(Virginia)

Posts:17766


06/26/2015 3:52 PM  
Posted By NpS on 06/26/2015 9:06 AM

Wasting your time Tim.




You're right. I said I was done with this thread earlier. I should have taken my own advice.


Posted By JimR26 on 06/26/2015 10:13 AM
Walt: Boy howdy do you have these blockheads upset. They say they don't want to keep this forum going but they sure do jump in to put you down with insults and bad lawyering.




Not sure if that was aimed at me or not.
If it was, I take offense at being called a blockhead.


As for bad lawyering - perhaps, as I am not an attorney. Walter asked a simple question and I responded what I thought the interpretation of the Walters citation.
Perhaps Walter was simply asking a rhetorical question.


Posted By JimR26 on 06/26/2015 10:13 AM

I maintain this does not hurt your HOA one iota.




Well, lets look at some potential consequences of Walters fight:

1) Additional financial burden upon the Association to pay the legal bills to address this issue.

2) Potential increase in insurance costs if a claim is made against the D&O policy.

3) Potential special assessments on the membership to pay legal costs if this issue goes to trial.

4) Potential decrease in volunteers willing to serve on the Board.

5) Potential loss of property value - If the issue catches the media attention, Realtors and potential buyers may shy away from the property. This may cause sellers to have to lower their asking price to attract buyers. If enough sales at a lower price occur, property values will decrease.

6) Potential increased apathy or potential increased membership involvement (this could go either way).


Posted By JimR26 on 06/26/2015 10:13 AM

In the future the apathetic eggheads that live in your community may pay more attention to what is going on with the Board.




Or they might not.

Posted By JimR26 on 06/26/2015 10:13 AM

More people need to challenge bad boards!




I, and I believe most others, would agree.
The issue is how to challenge bad boards.

Legal action should be a last resort.

Posted By JimR26 on 06/26/2015 10:13 AM

(Yes, yes, I'll remind the other posters on this website that they are all the Apostles of Virtue ... you're all wonderful, if only the rest of us if only the rest of us could have you as our Board Members, everything would be utopia in an HOA.)




Sarcasm aside, what you may not understand is that most, if not all, of us had issues with our Associations in the past. We are, or were, serving on our Boards or Committees because of those issues - we wanted to address the issue from the inside vs. taking the issue outside through the courts.


Posted By JimR26 on 06/26/2015 10:13 AM

Perhaps the Apostles of Virtue could come up with a uniform national form that buyers need to sign when they buy in an HOA ...




I know that your trying to be funny. It's not working. However, you do have a point that more information should be disclosed to buyers about Associations. Virginia has attempted that.

Here is their document that is included with every disclosure package:

http://www.dpor.virginia.gov/uploadedFiles/MainSite/Content/Boards/CIC/A492-0550DPREQ.pdf

Additionally, the following is in all sales contracts for VA:

PROPERTY OWNERS’ ASSOCIATION DISCLOSURE:
(a) Seller represents that the Property is ____ or is not ____ located within a development that is subject to the Virginia Property Owners’ Association Act, Section 55-508 et seq. of the
Code of Virginia (the “Act”). If the Property is within such a development, the Act requires Seller to obtain from the property owners’ association (the “Association”) an association disclosure packet and provide it to Purchaser. The information in the disclosure packet shall be current as of a date specified on the disclosure packet. Purchaser may cancel this Contract (i)
within three (3) days after the date of the Contract, if Purchaser received the disclosure packet (or notice that the packet will not be available) on or before the date Purchaser executed this Contract: (ii) three days after receiving the association disclosure packet or being notified that the association disclosure packet will not be available, if the packet or such notice is hand delivered; or (iii) within six (6) days after postmark date if the packet or notice that the packet will not be available is sent to Purchaser by United States mail. Purchaser may cancel this Contract at any time prior to settlement if Purchaser has not received the association disclosure packet or notice that the packet will not be available. Written notice of cancellation shall be hand delivered or sent by United States mail, return receipt requested, to Seller. Purchaser’s right to receive the association disclosure packet and the right to cancel this Contract are waived conclusively if not exercised before settlement. Purchaser shall have the right to request from the Association an update of the disclosure packet specifying any material changes to the statements previously furnished. Purchaser may be required to pay a fee for such update. (b) If the date of the disclosure packet delivered to Purchaser is earlier than the date this Contract is fully ratified by all parties, Seller represents and warrants to Purchaser that there have been no material changes to the information contained in the disclosure packet from and after the date on the disclosure packet.

The minimal contents of the disclosure package is mandated by law: VA § 55-509.5

Our Association adds additional information.

Posted By NpS on 06/26/2015 10:57 AM

Walter's lawyer said that Walter COULD have standing, but it would "depend upon the specific factors of your case."




Actually, in my opinion, Walter does have standing. He is a member of the Association, so he has standing. However, per the statute cited by Larry earlier in the thread, Walter needs to gather other members, who also have standing, and bring the issue to the Courts as a group.

This is why, I believe, the Associations attorney is fighting the issue on Walters lack of standing to bring the issue before the court by himself. Those of us who took the time to read the statute understand this. Walter disagrees. Walter has chosen to obtain a ruling on the correct interpretation by bringing his case forward.

That is his choice. I, and apparently others, simply disagree with his approach.



NpS
(Pennsylvania)

Posts:4215


06/26/2015 5:04 PM  
Posted By TimB4 on 06/26/2015 3:52 PM
Posted By NpS on 06/26/2015 10:57 AM

Walter's lawyer said that Walter COULD have standing, but it would "depend upon the specific factors of your case."


Actually, in my opinion, Walter does have standing. He is a member of the Association, so he has standing. However, per the statute cited by Larry earlier in the thread, Walter needs to gather other members, who also have standing, and bring the issue to the Courts as a group.

This is why, I believe, the Associations attorney is fighting the issue on Walters lack of standing to bring the issue before the court by himself. Those of us who took the time to read the statute understand this. Walter disagrees. Walter has chosen to obtain a ruling on the correct interpretation by bringing his case forward.

That is his choice. I, and apparently others, simply disagree with his approach.


Larry's interpretation of the GA requirements is correct. But as you stated, Walter chose to sue without satisfying the clearly stated requirements to bring a derivative suit. So I would disagree with your conclusion that Walter has standing. He didn't satisfy the statututory requirement to bring a derivative suit.

Also, standing requires a justiciable issue. Walter lacks standing because he cannot support his claims of injury to the HOA. The facts of the case are quite simple - the HOA paid a vendor's legitimate bill for services that were provided. There's no injury to the HOA in paying a real bill. IMO, Walter can be denied standing on that basis as well.

Sikubali jukumu. Read all posts at your own risk.
TimB4
(Virginia)

Posts:17766


06/26/2015 5:13 PM  
Posted By NpS on 06/26/2015 5:04 PM

So I would disagree with your conclusion that Walter has standing. He didn't satisfy the statututory requirement to bring a derivative suit.




Perhaps I wasn't clear, but at the same time, I also wasn't completely correct.

I stated that I believe Walter has "standing" because he is a member of the Association and therefore may be party to the legal action.

However, "standing", used as a legal term, is defined as "the ability of a party to bring a lawsuit in court based upon their stake in the outcome."

As you (and others) pointed out, since Walter didn't meet the statute requirements to bring the suit, in the legal definition, he doesn't have the ability to bring the issue before the court on his own.
JohnC46
(South Carolina)

Posts:11507


06/26/2015 5:20 PM  
Man oh man, I can see it now. Walter loses based on it not being a derivative suit but he keeps going and going and going. This saga is and will be enough to make one barf on their keyboard.

The real issue is Walter is pi$$ed at his BOD and will do anything (well for at least $50) to get back at them.



NpS
(Pennsylvania)

Posts:4215


06/26/2015 5:27 PM  
From the definition you cited Tim:

"There are three constitutional requirements to prove standing:

"Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must not be abstract and must be within the zone of interests meant to be regulated or protected under the statutory or constitutional guarantee in question.

"Causation: The injury must be reasonably connected to the defendant’s conduct.

"Redressability: A favorable court decision must be likely to redress the injury."

As I stated, Walter fails on the Injury element - the HOA paid a legitimate bill. Because there is no Injury, there is no Causation. Without an Injury, there is no Redressability.


Sikubali jukumu. Read all posts at your own risk.
TimB4
(Virginia)

Posts:17766


06/26/2015 5:50 PM  
Posted By NpS on 06/26/2015 5:04 PM
Walter lacks standing because he cannot support his claims of injury to the HOA.




Actually I disagree with this.

This is based from what I have gathered from this thread:

Although Walter is guilty of the same thing (incurring a debt upon the Association without prior approval), his argument is that procedures (as outlined in the governing documents and in Statute) were not followed when the debt was incurred. Hence, the parties that incurred the debt did not have the authority to burden the debt upon the Association. Nobody appears to dispute that prior approval was not received (although it could be argued that approval after the fact was given).

Keep in mind, despite the lack of prior approval, the Association still has to pay the legal bill because there was good faith in the transaction. Because the individuals asking for the legal services were members of the Board, the Attorney had a reasonable expectation that the individuals had the authority to contract for those services and the services were provided. Thus, due to good faith and reasonable expectation, the Association needs to pay the invoice (just as they did when Walter contacted the attorney).

Now, since prior approval was not received, the Association has standing to bring legal action against those members who contracted for such services (in fact, depending on the statute of limitations, they could consider going after Walter).

The elected Board has the authority to handle the affairs of the Association on behalf of the membership. The elected Board chose not to pursue Walter or others for their actions of contacting legal services without Board approval. However, per Walter, they did adopt a solid policy of needing prior approval before contracting for legal services.

Some may say the decision not to pursue reimbursement is a bad decision. Even if you agree the decision was bad, the Board believed that the decision was in the best interest of the Association (perhaps as a cost risk analysis) and would therefore be protected by the business judgement rule.

Walter, thankful that he isn't being pursued to reimburse the Association for his action, disagrees with the Boards decision. As a member of the Association he believes that the Board's decision is in error and that the Association should have demanded reimbursement of the unauthorized expense.

As a member, he discovered that he can push the issue into the courts as a derivative action to force the reimbursement of damages to the Association. He has taken action to do just that and try to seek reimbursement for the Association despite the Board's desire not to pursue the issue (just as they didn't pursue the issue in Walters case).

Statute, provided earlier by Larry, states that such action can be taken providing Walter can gather support from other members to bring the action as a group. Personally, I think the statue requires a group of members to file the suit to keep personality conflicts and one individuals disagreement with a Boards decision out of the courts. Walter chose not to gather support and filed action anyway. Hence the question of standing comes into play.


I suspect that if Walter had tried to gather support, it wouldn't have been there once the facts were known. However, if membership support had been there, why not simply recall the Board for their bad decision and replace them with individuals (like Walter) who will go after anyone who incurs a debt without prior approval? It would have been less expensive and had less potential consequences.

Perhaps Walter chose not to recall the Board simply because he didn't want such a Board to go after him for his actions without prior approval.


TimB4
(Virginia)

Posts:17766


06/26/2015 6:21 PM  
It the light of the Supreme Court ruling on health care where the Court looked at what it perceived as the intent rather then the letter of law, I will add that if the court does consider that Walter has standing the question may then become why didn't the board pursue reimbursement.

The Boards best defense to that, in my opinion, is to show that Walter made a similar debt without prior approval and, similar to that instance, the Board felt it was best not to pursue but instead to adopt a written policy as to how legal expense are to be incurred and move forward.
JonD1


Posts:0


06/26/2015 6:25 PM  
Funny when you ask Walter a direct question he can never muster the ability to give a straight answer.

My money is on the HOA lawyer over the $50 e-mail attorney.

I would hope the court date arrives soon I would like to hear the outcome.

Walter just might be in for a dose of reality.
LarryB13
(Arizona)

Posts:4099


06/26/2015 7:37 PM  
Posted By TimB4 on 06/26/2015 5:50 PM
Statute, provided earlier by Larry, states that such action can be taken providing Walter can gather support from other members to bring the action as a group. Personally, I think the statue requires a group of members to file the suit to keep personality conflicts and one individuals disagreement with a Boards decision out of the courts. Walter chose not to gather support and filed action anyway. Hence the question of standing comes into play.


I don't think a derivative action has been fully explained. It is a lawsuit brought by a group of members or stockholders who claim to represent the interests of the corporation. They must sue in the name of the corporation; the case that Walter has cited was lost, in part, because the plaintiffs sued in their own names. If the derivative lawsuit is successful then the damages are awarded to the corporation.

The requirements for bringing a derivative lawsuit vary from state to state but seem to normally require some percentage of members to join the corporation as plaintiffs. This is meant to prevent one disgruntled member from paralyzing the corporation with a frivolous lawsuit over imaginary wrongs.

The issue of "standing" in a derivative action is set out in the statutes and not in common law. Corporations are a creation of the state and the state has the authority to determine who may sue in the name of the corporation. In Walter's case, he needed five percent of the members to join him as plaintiffs. Regardless of whatever injury Walter claims to have been suffered by himself or other members, he does not have standing to pursue a derivative action as he has not complied with the statute.

NpS
(Pennsylvania)

Posts:4215


06/26/2015 10:15 PM  
Posted By TimB4 on 06/26/2015 5:50 PM
Posted By NpS on 06/26/2015 5:04 PM
Walter lacks standing because he cannot support his claims of injury to the HOA.


Actually I disagree with this.


While you weave an interesting tale Tim, you glossed over the specifics of the definition you provided. This is understandable because you may be relying on your own personal interpretation of what an injury is. Yet "Injury" is a legal term with a specific definition when it comes to standing.

Per the definition: "The injury must not be abstract."

And since Walter's claims are about spending HOA money, the only way that the injury is not going to be "abstract" is to quantify it in dollars - which Walter cannot do.

The only amount that's been quantified is the amount paid to the lawyer. The lawyer provided services - whether properly or improperly incurred - there is no question that the lawyer did provide the services. As you acknowledged Tim, the lawyer had the right to expect payment from the HOA and the HOA had an obligation to pay the lawyer. The HOA cannot be injured by the amount of the payment - because that amount was due to the lawyer from the HOA.

If that doesn't convince you, I ask that you shift attention to the third requirement for standing - "Redressability." Exactly what relief is a court going to order for this purported "injury?" Is a judge going to override a board that decided to pay a HOA expense? Of course not. Is a judge going to override a board that decided not to go after individuals to recover legal fees? Of course not.

Note that the definition of standing that you provided applies whether Walter's claims are direct or derivative. Either way, Walter still lacks standing because he cannot show a non-"abstract" injury. And on that basis, he lacks standing.

Also note that the Crittenton case is a very different factual situation. That case involved election improprieties - In Crittenton, there was a potential "injury" in the newly elected board members not getting seated. There, money wasn't the issue.

But in Walter's case, the purported "injury" is only about the lawyer fees that got paid. I repeat - Walter cannot demonstrate that there was any injury to the HOA in the decision to pay the HOA's legal bills. And in terms of injury, he's got nothing else - just a bunch of abstractions that cannot be quantified.


Sikubali jukumu. Read all posts at your own risk.
TimB4
(Virginia)

Posts:17766


06/27/2015 1:47 AM  
NP,

As Larry points out, Walter is (or should be) bringing action on behalf of the Association. The Association's injury (damage) was the cost of the unauthorized legal fees. If he filed the case in his own name the case may be dismissed on technicality.

If won, the redress would be that the Court orders the defendants (the individual Board members) to reimburse the Association the amount of legal fees and, perhaps, court costs out of their personal finances.

However, like others on this site, I believe that it would be reasonable to expect that such an expenditure would have been approved if prior approval was sought. Because it is likely that prior approval would have been granted if sought, the fact (as provided by Walter) that past practice within the Association was that Board members could contract legal services without prior approval and the fact that Walter previously contracted legal services without prior approval, the issue of injury is now mitigated.

I suspect that if the case isn't dismissed, the Court would likely tell the Board to start following procedures, tell both parties to play nice in the future and there would be no award of damages.

That's my layman's opinion.



Walter,

As you can see, I believe that I understand what you are trying to do. Many on this site have given you their laypersons opinion on the issue based on their understanding of the issue and past experiences. Those opinions see problems with the issue. Had you not already filed legal action, I would have advised you to seek a legal opinion from a local attorney versed in corporate law.

Granted you did seek generalized legal advice. Per your own postings, that legal advice was based on knowledge that the attorney had available. Per your own citation of the communication, the attorney did not know all the specifics of your issue and warned you that the advice provided was tempered on those specifics.

You may still want to take all the information you have, along with your petition to the court and the defendants response, to a local attorney. If you do, I would suggest that you ask three questions of that attorney:

1) Is there anything in these papers, Statutes or case law that could have the case dismissed on technicalities?

2) If the case is heard, is there a realistic chance greater than 50/50 that I would be the prevailing party in the case?

3) What potential legal risks might I be opening myself to by bringing such an action before the court?

Again, I wish you luck.

Again, I will read this thread but am done posting on it.
NpS
(Pennsylvania)

Posts:4215


06/27/2015 7:25 AM  
Posted By TimB4 on 06/27/2015 1:47 AM
As Larry points out, Walter is (or should be) bringing action on behalf of the Association.

My point is that his case could be dismissed for lack of standing even if it is brought as a derivative suit.

Posted By TimB4 on 06/27/2015 1:47 AM
The Association's injury (damage) was the cost of the unauthorized legal fees.

IMO, no economic injury at all. The HOA received the services of a lawyer. They paid the lawyer. There is no injury to the HOA when the BOD pays the lawyer for services rendered to the HOA.

So what exactly is the injury in your eyes - the failure to follow proper procedure. If every board member in every HOA had to reimburse their HOA for every failure to follow proper procedure, we would all be in big trouble. And it's exactly these kind of "abstract" claims of injury that can lose for lack of standing.

Now a proper derivative suit would be if a board member gave a landscaping contract to his brother and the brother got paid $75,000 for something that could have been done for $50,000. Under this set of facts, the recovery should be the $25k excess amount, not the $75k total amount paid.

Posted By TimB4 on 06/27/2015 1:47 AM
If he filed the case in his own name the case may be dismissed on technicality.

OK.

Posted By TimB4 on 06/27/2015 1:47 AM
If won, the redress would be that the Court orders the defendants (the individual Board members) to reimburse the Association the amount of legal fees and, perhaps, court costs out of their personal finances.

See response above.

Posted By TimB4 on 06/27/2015 1:47 AM
However, like others on this site, I believe that it would be reasonable to expect that such an expenditure would have been approved if prior approval was sought. Because it is likely that prior approval would have been granted if sought, the fact (as provided by Walter) that past practice within the Association was that Board members could contract legal services without prior approval and the fact that Walter previously contracted legal services without prior approval, the issue of injury is now mitigated.

I think the better argument is that Walter comes to the court with "unclean hands."

Here you are saying that if prior approval was sought, it would probably have been granted. So they spent $1147 without prior approval. With prior approval, they would have spent $1147. The difference is $0. The injury is "abstract." You've made my point.

Posted By TimB4 on 06/27/2015 1:47 AM
I suspect that if the case isn't dismissed, the Court would likely tell the Board to start following procedures, tell both parties to play nice in the future and there would be no award of damages.

Essentially, you are arguing for some form of "abstract" relief. Possible. Depends on what the HOA lawyer is arguing - Which Walter has decided to keep secret from us.

Sikubali jukumu. Read all posts at your own risk.
MelissaP1
(Alabama)

Posts:10521


06/27/2015 8:08 AM  
Has anyone even won posting to this post???

Good luck to Walter and his lawsuits... May the judge not start hitting his head with gavel...

Former HOA President
TimB4
(Virginia)

Posts:17766


06/27/2015 4:07 PM  
Posted By NpS on 06/27/2015 7:25 AM

Posted By TimB4 on 06/27/2015 1:47 AM
The Association's injury (damage) was the cost of the unauthorized legal fees.

IMO, no economic injury at all. The HOA received the services of a lawyer. They paid the lawyer. There is no injury to the HOA when the BOD pays the lawyer for services rendered to the HOA.




Ahh, but that is the other side of the argument.

Walter is implying (although never exactly stated) that the individual, who happened to be serving as President at the time, was being called into the deposition as a private citizen, not as the Association President or as an Association Board member.

If Walter is correct, then the services were for personal gain as he claims and the Association was damaged.

However, if you are correct and the President was being called because she was the President of the Association at the time, then I agree with you - it was Association business and there is no damage to the Association.

There is only the failure to follow proper procedure (even though the individual followed past practices and procedures for obtaining legal services - just as Walter had previously done).

Therefore, NP, it appears that we are in agreement. It depends on the specifics of the case which we simply don't really know.



I know, I said I wouldn't post on the thread again.
Lesson learned, don't say something you can't follow through with.

NpS
(Pennsylvania)

Posts:4215


06/27/2015 7:10 PM  
Posted By TimB4 on 06/27/2015 4:07 PM
Posted By NpS on 06/27/2015 7:25 AM

Posted By TimB4 on 06/27/2015 1:47 AM
The Association's injury (damage) was the cost of the unauthorized legal fees.

IMO, no economic injury at all. The HOA received the services of a lawyer. They paid the lawyer. There is no injury to the HOA when the BOD pays the lawyer for services rendered to the HOA.


Ahh, but that is the other side of the argument.

Walter is implying (although never exactly stated) that the individual, who happened to be serving as President at the time, was being called into the deposition as a private citizen, not as the Association President or as an Association Board member.


What Walter told us (or implied) is that another homeowner sued Walter for defamation after Walter alleged that the homeowner was taking kickbacks or bribes. We don't know if Walter was on the board at the time (he says that he was on the board more than once). We don't know if the other homeowner was on the board when Walter made his defamatory allegations. But Walter's claims that the homeowner was taking bribes or kickbacks should lead anyone to the conclusion that the other homeowner was either a prior or current board member, or even a board candidate.

According to Walter, the HOA prez was deposed and the HOA lawyer attended the deposition. If in fact no questions were asked of the prez during the deposition about what was going on in the HOA at the time Walter made his allegations of kickbacks/bribes, or if in fact the purported kickbacks/bribes had nothing to do with the HOA, then perhaps Walter's assertions of an unrelated lawsuit might be credible. But the opposite is in fact true - the defamation suit was inextricably intertwined with the goings on of the HOA.

I think that in making his claim of unrelatedness, Walter relied solely on the fact that the HOA was not a party to the defamation lawsuit. But I think differently. If I were the prez going to a deposition in which claims of kickbacks/bribes were being alleged, I think that for the protection of the HOA, I would want the HOA lawyer in attendance to assure that the scope of the deposition would be reasonably contained. And if in fact, Walter was the one asking the Prez questions, even more so. Walter's questions could have wandered into many areas that were unrelated to the lawsuit but instead into other areas of HOA business that Walter was angry about. As a member of the board, I would have wanted the lawyer there to keep that from happening.

There is one other matter as well. The deposition of the prez may have been called by the other homeowner or by Walter. If it was Walter who called for the deposition, then he gave the prez no choice but to attend the deposition. The prez did not get an advance list of questions that Walter was going to ask. The process wa totally open ended.

IMO, Walter has confused personal/HOA defense with personal/non-HOA gain.

Posted By TimB4 on 06/27/2015 4:07 PM
If Walter is correct, then the services were for personal gain as he claims and the Association was damaged.

Saying that the lawsuit was unrelated will not pass muster just because Walter says so. The facts must support that claim. The particulars must themselves be unrelated to the HOA.

Note that Walter in his suit intentionally described the two disputants as homeowners and not current or former board members. Note also that Walter in his derivative suit intentionally chose not to disclose that he was one of those two disputing homeowners and that Walter had made a slew of other allegations against the various board members. Not mentioning these connections was intentionally deceptive on Walter's part. Intentional omissions are factually false - or at least that's the way a court is likely to interpret them.

Posted By TimB4 on 06/27/2015 4:07 PM
However, if you are correct and the President was being called because she was the President of the Association at the time, then I agree with you - it was Association business and there is no damage to the Association.

We agree.

Posted By TimB4 on 06/27/2015 4:07 PM
There is only the failure to follow proper procedure (even though the individual followed past practices and procedures for obtaining legal services - just as Walter had previously done).

Here too we agree. In fact, Walter admits to contacting the HOA lawyer on his own without prior approval more than once. I think that's why he finally latched onto the idea of going after the HOA for the deposition-related legal fees and not for the lack of prior approval.

Posted By TimB4 on 06/27/2015 4:07 PM
Therefore, NP, it appears that we are in agreement. It depends on the specifics of the case which we simply don't really know.

While I have stopped communicating with Walter, I have always enjoyed my exchanges with you. You have my respect and appreciation even when we don't agree. Here I think we do.

As to the outcome of the case, Walter needed 21 other homeowners to join the lawsuit for it to pass muster as a derivative suit. He went it alone. The HOA lawyer will get the case dismissed for lack of standing on this grounds alone. I'm 99.99% sure of it.


Sikubali jukumu. Read all posts at your own risk.
LarryB13
(Arizona)

Posts:4099


06/27/2015 9:00 PM  
Posted By NpS on 06/27/2015 7:10 PM

Note that Walter in his suit intentionally described the two disputants as homeowners and not current or former board members. Note also that Walter in his derivative suit intentionally chose not to disclose that he was one of those two disputing homeowners and that Walter had made a slew of other allegations against the various board members. Not mentioning these connections was intentionally deceptive on Walter's part. Intentional omissions are factually false - or at least that's the way a court is likely to interpret them.


I have not been following this thread as closely as I should have been. Where did Walter admit that he is involved as a litigant in the defamation lawsuit? I recall that the complaint he originally posted did not identify the parties to the defamation lawsuit and it was only later that he stated both were former board members. But I do not recall reading that Walter was one of those parties. Could you quote the text where he admitted that?

NpS
(Pennsylvania)

Posts:4215


06/28/2015 12:15 AM  
Posted By LarryB13 on 06/27/2015 9:00 PM
Where did Walter admit that he is involved as a litigant in the defamation lawsuit?


Posted By WalterM3 on 01/14/2015 8:58 AM
I was the defendant in a defamation suit last year.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4215


06/28/2015 12:20 AM  
Posted by Walter to a different thread. Title was "defamation of character."

Sikubali jukumu. Read all posts at your own risk.
WalterM3
(Georgia)

Posts:371


06/28/2015 5:22 AM  
You guys are going crazy.

I am filing tomorrow my answer to the Motion to Dismiss.

We'll see what the Court thinks of this mess.

Walt
WalterM3
(Georgia)

Posts:371


06/28/2015 5:39 AM  
"There is only the failure to follow proper procedure (even though the individual followed past practices and procedures for obtaining legal services - just as Walter had previously done)."

Where this falls down is that there was no precedent. No Boards had ever done "Actions Without Meetings" before. That is because if you conduct all HOA business at the -monthly- regularly scheduled meetings, you are probably covered. Any actions taken at that time should appear in the Minutes and be visible to the members of the Association.

For two years, the Board members behaved with great secrecy. I was a Board member but I wasn't in their clique and I opposed their agenda. So they expended right at $5,000.00 by conducting affairs on the sly. The Minutes didn't reflect these expenditures.

When I requested some records of the Association per an open records request I found this improperly disbursed money. So I next sent a letter to the management company - the Registered Agent of the corporation. Do you have any "Actions Without Meetings" on file? No, none. Ever.

Recall that the law requires that these AWM's must be appended to the Minutes, making a record visible to the Association members and others authorized to view them, the banks and such.

That is where they screwed up and I am sorry if you don't find it wrong. The Board members conducted operations that were not visible to the members. That is a violation of statute.

They did this with the members' money. That is probably the most hot button in most HOA's.

We'll see if the Court feels that if it is important for the officers of a corporation to follow the laws that govern corporations.

Walt
NpS
(Pennsylvania)

Posts:4215


06/28/2015 7:24 AM  
Posted By WalterM3 on 06/26/2015 10:34 AM
They have gone pretty nutty in my HOA. I am fighting them.


Posted By WalterM3 on 06/20/2015 9:43 AM
Their attorney strung a bunch of words together but they have little pith.


Posted By WalterM3 on 06/20/2015 6:33 PM
Are you nuts? I am not posting the actual filings.


Posted By WalterM3 on 06/26/2015 8:23 AM
They are using the HOA attorney to attempt to secure a dismissal because they don’t want to have to discuss it. But they will have to.


Posted By WalterM3 on 06/26/2015 7:46 AM
If I were to lose, the HOA will still bear the costs of deploying the attorney.


Posted By WalterM3 on 06/26/2015 7:46 AM
I never said I was protecting the HOA. I am doing this strictly for my own interest.


Posted By WalterM3 on 06/20/2015 6:35 PM
I started this thread to see if anyone could shoot any holes in my logic and process. No one did.


Clue-less and glue-less. A real gem for any HOA.

Sikubali jukumu. Read all posts at your own risk.
WalterM3
(Georgia)

Posts:371


06/28/2015 7:31 AM  
It is just so odd that so many people are taking issue with me insisting and me being willing to act on compelling the members of the Board to obey the law.

Walt
TimB4
(Virginia)

Posts:17766


06/28/2015 8:20 AM  
Posted By WalterM3 on 06/28/2015 7:31 AM
It is just so odd that so many people are taking issue with me insisting and me being willing to act on compelling the members of the Board to obey the law.

Walt




Walt, Nobody is taking issue with you being willing to compel the members of the Board to obey the law. I, for one, support the willingness. We are only taking issue with the methodology you have chosen to use. I, and apparently others, see problems in supporting the argument you are making with the facts you have chosen to make available. I, and apparently others, do not believe that you can win your case based on what you have provided and the research we have done.

So, although there is support from this forum for members to step up and be the checks and balances to the Boards actions, there are differing opinions on what method is the best approach to exercise those checks and balances.



Personally, I would have suggested gathering support and voting the bums off vs. the legal action you are currently taking. This is something that can take time (it took me over 3 years to gather the support needed).

I would have suggested gathering support and have a group attend the board meeting all asking the same questions about finances vs. the legal action you are currently taking.

If none of the above worked, I would have suggested seeking an injunction from the court to force compliance with a specific procedure that is not being followed or to force an audit if you believed finances were being used improperly. The action you are taking is not the same.


MelissaP1
(Alabama)

Posts:10521


06/28/2015 8:25 AM  
And you do this by lawsuits and lawyers??? The last time I checked you do it by communicating and following your options in the HOA documents. It is NOT by an outside source. Seems to me your HOA options are to recall the board or rewrite the rules. All options you and your neighbors have as part of being in your incorporation.

Former HOA President
JimR26
(Alabama)

Posts:27


06/28/2015 8:46 AM  
Walt

If you've read any of the other discussion topics on this website, it's clear a core group never side with a HO like you. NEVER! You are always the bad guy. Many who have written to this site have expressed they are suing bc they've exhausted ALL other options, but that still is never enough for the regulars on this site. Somehow they deem you the loser, you the bad guy, you haven't done it right, you've been the problem fro the start. They have a one track mind. I've never read any potential suit this core group supported. They keep repeating the same thing. Somehow they overlook that there are winners against HOA's who are just little HOs with a small grievance. (Now of course they'll jump on me ... do you know what this costs a community?)

Without HOs standing up to the bullies, nothing in HOAs will ever change. The HOA Warrior you copied knows that and according to my research he's been fighting the overall concept of planned communities for a decade +; even involving himself with the State Legislators to make change. I am betting the core group on this site, don't like him. He must be enormously frustrated given the resistance from the CAI and these tiny micro-gov'ts, controlled by and for the most part, the tyrants ... no I didn't mean the Apostles of Virtue on this website.

It's impossible for me to imagine people want more gov't oversight after they been involved in an HOA. People are too willing to surrender their god-given rights. I expect one, somewhere will ask HOs to surrender their guns and their free speech rights. It's coming. "SCUM, you're fined! You didn't direct your question to ME in a politically correct way that I find acceptable! You've been banished! Get out!"

Use these people to practice your arguments and to refine what is flawed at your end. When you're ready go for it!



MelissaP1
(Alabama)

Posts:10521


06/28/2015 9:10 AM  
My HOA was NOT following the rules. The President was a con man. All the contractors hired were the presidents friends. We had several homes not paying for years. The HO's were so apathetic there were only 5 members that may show up to a meeting.

Did I turn my HOA around by suing? No. I listened to the owners. Got elected. Fired the contractors. Put in a 3 bid process. Foreclosed on a house not paying for years. Insituted a 6 month we lien policy. Brought the HOA rules to EACH meeting. Followed the rules again. Violations were dealt with by quoting those rules.

So for anyone to come here and accuse us of being NOT for the HO or being Peo HOA has no clue what they are talking about. We became board members, officers, or just HOA participators. That does NOT make us pro HOA but Pro doing the best for our community. If we can help in yours that is all the better...

Educate not propogate your negative point of view... Most of worked hard to make things better and those who sue take the easy route to nowhere.

Former HOA President
NpS
(Pennsylvania)

Posts:4215


06/28/2015 9:15 AM  
What you fail to understand Tim and Melissa is that Walter has apathy in his HOA - a situation that neither of you nor anyone else on this forum has ever faced.

Not only that, but if Walter took his case to his neighbors, they might get exposed to an opposing point of view - and they might actually prefer that point of view over Walter's. Heaven forbid.

Sikubali jukumu. Read all posts at your own risk.
LarryB13
(Arizona)

Posts:4099


06/28/2015 9:29 AM  
Posted By WalterM3 on 01/14/2015 8:58 AM
I was the defendant in a defamation suit last year.



I will take your silence on that matter in this thread as an admission that you lost the defamation lawsuit. Or does your association have multiple former board members suing for defamation? If you had won I am sure we would all have heard about it.

It looks like your current lawsuit is meant to attack the board and president in a roundabout way in revenge for the president testifying against you.

BTW, Walt, had you secured legal counsel you would have prevailed in that defamation suit. Since 1963 a person who was elected to an office - even an HOA board - is required to prove that the statements were false and defamatory and made with reckless disregard for the truth with an intent to cause injury. That is such a high hurdle that any attorney would have had the case against you dismissed immediately.

MelissaP1
(Alabama)

Posts:10521


06/28/2015 9:35 AM  
Yeah I never experience owner apathy... Anyone remember my post I held meeting IN the swimming pool because no one showed up? My board members I did have were already IN the pool... LOL! So I brought my meetings to the people!

Owner apathy make for all ruling and encompassing boards... Board apathy make for all ruling Management company... Lawsuits by owners to make changes make for one broke disfunctional HOA...

Former HOA President
NpS
(Pennsylvania)

Posts:4215


06/28/2015 9:47 AM  
Since Jim has used the phrase "apostles of virtue" in virtually all of his posts and since I had never seen the phrase anywhere else, I decided to do a search. Most of what I found had to do with hate-speech or suppression of women's rights or something similar.

I think that the following quote is appropriate to our situation.

“In the quest for ethical standards in the struggle against moral damages made by hate speech, we should remember that freedom of speech is the foundation of a free society. Civil society does not depend on state or social control of expression, no matter how insulting it may be. The real antidote for hate speech is not the suppression of speech, but rather much more speech. The key for civil society lies in the public, inasmuch as in those who convey (…) The reality is that if we really want and deserve an ethical
society, then the apostles of virtue and politeness should victoriously appear on the market of ideas in an open confrontation with the cynical protectors of hate speech.”
Louis Alvin Day, "Ethics in Media"

I do believe that the regulars on this forum have promoted open and extensive dialog, which Jim seems to find so distasteful.

Instead Jim refers us to a self-appointed evangelical against all HOAs who offers no vehicle to respond - no forum - no open discussion - no opportunity for another point of view.

If I puff myself up too big here, someone brings me back down to reality. If Jim's evangelical against all HOAs puffs himself up too big, there is no reality check. The only choice available for someone who wants to respond is to make a donation to the cause or not.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4215


06/28/2015 9:56 AM  
Posted By NpS on 06/28/2015 9:47 AM
Since Jim has used the phrase "apostles of virtue" in virtually all of his posts and since I had never seen the phrase anywhere else, I decided to do a search. Most of what I found had to do with hate-speech or suppression of women's rights or something similar.

I think that the following quote is appropriate to our situation.

“In the quest for ethical standards in the struggle against moral damages made by hate speech, we should remember that freedom of speech is the foundation of a free society. Civil society does not depend on state or social control of expression, no matter how insulting it may be. The real antidote for hate speech is not the suppression of speech, but rather much more speech. The key for civil society lies in the public, inasmuch as in those who convey (…) The reality is that if we really want and deserve an ethical
society, then the apostles of virtue and politeness should victoriously appear on the market of ideas in an open confrontation with the cynical protectors of hate speech.”
Louis Alvin Day, "Ethics in Media"

I do believe that the regulars on this forum have promoted open and extensive dialog, which Jim seems to find so distasteful.

Instead Jim refers us to a self-appointed evangelical against all HOAs who offers no vehicle to respond - no forum - no open discussion - no opportunity for another point of view.

If I puff myself up too big here, someone brings me back down to reality. If Jim's evangelical against all HOAs puffs himself up too big, there is no reality check. The only choice available for someone who wants to respond is to make a donation to the cause or not.


Revision: ... The only choice available for someone who wants to respond to Jim's evangelical against all HOAs is to make a donation to the cause or not.

Sikubali jukumu. Read all posts at your own risk.
RichardP13


Posts:0


06/28/2015 10:02 AM  
Posted By MelissaP1 on 06/28/2015 8:25 AM
And you do this by lawsuits and lawyers??? The last time I checked you do it by communicating and following your options in the HOA documents. It is NOT by an outside source. Seems to me your HOA options are to recall the board or rewrite the rules. All options you and your neighbors have as part of being in your incorporation.



Melissa,

Depending on the size of an association, the most cost effect vehicle maybe using the court system. In addition, the majority of CCRs written gives the homeowner the legal authority to enforce if others don't.
TimB4
(Virginia)

Posts:17766


06/28/2015 10:26 AM  
Posted By JimR26 on 06/28/2015 8:46 AM

If you've read any of the other discussion topics on this website, it's clear a core group never side with a HO like you.




It's a shame you see it that way.

We see it as actually siding with the homeowner but being realistic and, when needed, showing some hard truths based on what the poster provides.

Posters need to understand that those on this forum don't know what you know and we can either ask questions to try and obtain more information or fill in the blanks from our own experiences and then provide opinion and advice based on how we interpret what is offered. As the blanks are filled in with facts from the OP, vs. our own experiences, those opinions and advice may change.

However, when a poster comes to this site and has already taken a course of action (like Walter has done) or is actually looking for justification of their decision vs. advice and opinion to aid in making an informed decision, what is offered by this forum can easily be interpreted as confrontational vs. helpful.

Posted By JimR26 on 06/28/2015 8:46 AM

Many who have written to this site have expressed they are suing bc they've exhausted ALL other options, but that still is never enough for the regulars on this site.




What I have found is that often those who thought they have exhausted all other options haven't always explored all other options.

Sometimes, legal action is the only option. Either because it was the only way to get somebody to listen to the issue, time constraints limits or doesn't allow other options to be used or the other options have been tried and didn't work.

However, we are going to ask what was tried and why it didn't work, or if they considered this or that option. If the OP can't or won't respond to those questions, then it's unlikely those on this site, who are or have served on their Board, will support such legal action.


Posted By JimR26 on 06/28/2015 8:46 AM

I've never read any potential suit this core group supported.




The Farrin case was recently brought up again in a thread. That is a case where legal action was taken and the cost of the case required the Association to declare bankruptcy. I actually supported the Farrins in that case. Not on all of their counts, but because 1) they had initially served on their board - so they were willing to do the work they were complaining about how others were doing; 2) they (per some of their interviews) tried to compromise with the Board on several occasions and keep the action from going to trial. However, for that Association and for the Farrins themselves, I don't think anybody really won.

Of course, the Farrin's never brought the issue to this forum.

Posted By JimR26 on 06/28/2015 8:46 AM

(Now of course they'll jump on me ... do you know what this costs a community?)




If you take it as "jumping on you," I'm sorry you interpret it that way. I'm simply trying to explain the issue from a different perspective.

We all know that the perspective you are looking from seems correct. It's when we try to see issues from other perspectives as well as our own that learning and understanding can happen. You may not change your opinion, but you can better understand why the other person is responding to your opinion the way they are.

Perhaps, this can allow you to alter how you present your opinions and perspective so the other person is more willing to acknowledge your perceptive of the issue.

Posted By JimR26 on 06/28/2015 8:46 AM

Without HOs standing up to the bullies, nothing in HOAs will ever change.




This is a half truth.

Not only do you have to stand up, you have to be willing to serve so the same bullies aren't reelected and allowed to continue. If you aren't willing to serve, then those who are will be the one's making the decisions on your behalf.

Walter has served. For that, he has my respect - as he was willing to put in the time required to serve.

Jim, have you ever served on your Association's Board or one of it's committees?


Posted By JimR26 on 06/28/2015 8:46 AM

The HOA Warrior . . . I am betting the core group on this site, don't like him.




I came across his site once or twice.

I don't agree with his approach. From my understanding, he wants more government involvement (i.e. wants someone else to do the job the membership is responsible for doing), he would prefer that HOAs were non-existant yet refuses to acknowledge that in some developments (like town homes, condominiums and private road properties) they are necessary.

When I had my issue with my Association, I came across many of those sites. The advice I got from those sites were to take the association to court. When I came to this site I was asked to prove my case. Cite statute or governing documents that supported my position. When I could do this, I was told that it appears I've got enough to win a legal battle however, have you considered other options. Well I went with the other options. It took as long and my issue was resolved. However, because I exercised those other options, I not only resolved my one issue, I was able to gather support and correct other issues as well (some of which I was never even aware of until I was elected to the Board).

Posted By JimR26 on 06/28/2015 8:46 AM

It's impossible for me to imagine people want more gov't oversight after they been involved in an HOA.




Something we agree on.

However, at the same time you seem to support the individual running the anti-hoa site previously mentioned who wants additional government oversight.

I do agree that sometimes Board exceed the authority that they were given. Typically, from my experience, because they have some vision on how the Association should look, what development they want to live in, or they have a conflict with a neighbor. Unfortunately, in places where the membership is apathetic, those individuals are allowed to serve because the membership is willing to let them serve (well, until their decision affect something that they want to do).

Posted By JimR26 on 06/28/2015 8:46 AM

Use these people to practice your arguments and to refine what is flawed at your end. When you're ready go for it!




That is what we can be used for. If that is all we are used for, then perhaps we helped.

Unfortunately, Walter didn't do that. He went for legal action when he thought he was ready and is now not willing to hear from others who thinks he pulled the trigger a little early.

NpS
(Pennsylvania)

Posts:4215


06/28/2015 10:27 AM  
Posted By LarryB13 on 06/28/2015 9:29 AM
Posted By WalterM3 on 01/14/2015 8:58 AM
I was the defendant in a defamation suit last year.


I will take your silence on that matter in this thread as an admission that you lost the defamation lawsuit. Or does your association have multiple former board members suing for defamation? If you had won I am sure we would all have heard about it.

It looks like your current lawsuit is meant to attack the board and president in a roundabout way in revenge for the president testifying against you.

BTW, Walt, had you secured legal counsel you would have prevailed in that defamation suit. Since 1963 a person who was elected to an office - even an HOA board - is required to prove that the statements were false and defamatory and made with reckless disregard for the truth with an intent to cause injury. That is such a high hurdle that any attorney would have had the case against you dismissed immediately.

Walter did say he won. Not clear from Walter's post, but it seems that plaintiff may have lost because she couldn't demonstrate economic loss. Nonetheless, your points are well taken re the difficulty of winning a defamation lawsuit.

Sikubali jukumu. Read all posts at your own risk.
WalterM3
(Georgia)

Posts:371


07/03/2015 11:21 AM  

I know ya'll are bored so here is the story of the film so far.

The defendants' Motion to Dismiss hit the court website on 6/17. Monday 29 June I mailed a response to the Motion. The same day the court mailed to me a notice of hearing, which is July 16.

It seems to me (and I guess other opinions will vary) that if the Court was going to honor the Motion to Dismiss at all, it would have waited for a Response from me, which the usual time for any response is 30 days.

So I am guessing that the hearing will be a standard Magistrate affair, and the Civil Practice Act will not apply.

Long Live the United States and Success to the Marines!

Walt
LarryB13
(Arizona)

Posts:4099


07/03/2015 11:38 AM  
Posted By WalterM3 on 07/03/2015 11:21 AM
It seems to me (and I guess other opinions will vary) that if the Court was going to honor the Motion to Dismiss at all, it would have waited for a Response from me, which the usual time for any response is 30 days.


Standard time for a response to a motion is ten business days. The moving party normally has five business days to reply to a response. A hearing scheduled 30 days after the motion was filed gives plenty of time for response and reply. The court is not going to grant a motion to dismiss without giving you an opportunity - no matter how futile - to show cause why your complaint should not be dismissed.

I, for one, await your post of July 17 wherein we will no doubt hear about the rampant corruption in the courts that led to the dismissal of your lawsuit.

WalterM3
(Georgia)

Posts:371


07/03/2015 1:17 PM  
Posted By LarryB13 on 07/03/2015 11:38 AM
Posted By WalterM3 on 07/03/2015 11:21 AM
It seems to me (and I guess other opinions will vary) that if the Court was going to honor the Motion to Dismiss at all, it would have waited for a Response from me, which the usual time for any response is 30 days.


Standard time for a response to a motion is ten business days. The moving party normally has five business days to reply to a response. A hearing scheduled 30 days after the motion was filed gives plenty of time for response and reply. The court is not going to grant a motion to dismiss without giving you an opportunity - no matter how futile - to show cause why your complaint should not be dismissed.

I, for one, await your post of July 17 wherein we will no doubt hear about the rampant corruption in the courts that led to the dismissal of your lawsuit.





That is complete nonsense.

Thirty days are granted to answer motions.

2014-09-05 - MOTION FOR SUMMARY JUDGMENT PLAINTIFF PRO SE

2014-09-23 - RESPONSE TO MOTION FOR SUM JUDGMNT DEFENDANT PRO SE

2014-10-03 - ORDER PLF MOTION FOR SUMMARY JUDGMENT-DENIED


Walt
PitA


Posts:0


07/03/2015 2:32 PM  
Long Live the United States and Success to the Marines!


The Halls of Montezuma are sending us their dregs disguised as workers.
(Montezuma's true revenge)

and

We are returning to Tripoli.
(Liberia, North Africa)

God Bless the USA for there is no better system.

God Bless and Protect Us All BECAUSE there is no better system.

LarryB13
(Arizona)

Posts:4099


07/03/2015 3:58 PM  
Posted By WalterM3 on 07/03/2015 1:17 PM

Posted By LarryB13 on 07/03/2015 11:38 AM
Standard time for a response to a motion is ten business days. The moving party normally has five business days to reply to a response. A hearing scheduled 30 days after the motion was filed gives plenty of time for response and reply.



That is complete nonsense.

Thirty days are granted to answer motions.



The time frames I mentioned are those used in my state and are taken almost verbatim from the Federal Rules of Civil Procedure. Most civilized states have adopted those rules as their own.

I overlooked the fact that I was dealing with a person from Georgia, a place where ignorance and illiteracy is so commonplace that the clerk of courts will write out pleadings for litigants. It is also a state where they enacted their own rules of civil practice and then decided that no rules at all apply in those courts where the illiterate are welcome. It does appear that in Georgia you can drag out responding to a simple motion by taking 30 days to respond.

Per UNIFORM RULES, STATE COURTS OF THE STATE OF GEORGIA by the COUNCIL OF STATE COURT JUDGES, as amended July 7, 2011

Rule 6.2
Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a
response, reply memorandum, affidavits, or other responsive material not later than 30 days after
service of the motion, or on the date of the hearing (if one is held) whichever occurs sooner.
Source: http://georgiacourts.gov/files/UNIFORM%20STATE%20COURT%20RULES_8_11.pdf

It appears that you have until the date of the hearing to file a response.
WalterM3
(Georgia)

Posts:371


07/03/2015 4:14 PM  
Posted By LarryB13 on 07/03/2015 3:58 PM
Posted By WalterM3 on 07/03/2015 1:17 PM

Posted By LarryB13 on 07/03/2015 11:38 AM
Standard time for a response to a motion is ten business days. The moving party normally has five business days to reply to a response. A hearing scheduled 30 days after the motion was filed gives plenty of time for response and reply.



That is complete nonsense.

Thirty days are granted to answer motions.



The time frames I mentioned are those used in my state and are taken almost verbatim from the Federal Rules of Civil Procedure. Most civilized states have adopted those rules as their own.

I overlooked the fact that I was dealing with a person from Georgia, a place where ignorance and illiteracy is so commonplace that the clerk of courts will write out pleadings for litigants. It is also a state where they enacted their own rules of civil practice and then decided that no rules at all apply in those courts where the illiterate are welcome. It does appear that in Georgia you can drag out responding to a simple motion by taking 30 days to respond.

Per UNIFORM RULES, STATE COURTS OF THE STATE OF GEORGIA by the COUNCIL OF STATE COURT JUDGES, as amended July 7, 2011

Rule 6.2
Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a
response, reply memorandum, affidavits, or other responsive material not later than 30 days after
service of the motion, or on the date of the hearing (if one is held) whichever occurs sooner.
Source: http://georgiacourts.gov/files/UNIFORM%20STATE%20COURT%20RULES_8_11.pdf

It appears that you have until the date of the hearing to file a response.




Put another way, you look like an ass.

Walt
WalterM3
(Georgia)

Posts:371


07/03/2015 5:47 PM  
Okay, now that we have established that there is a 30 day response time, and since the court kicked out a hearing date of 7/16 twelve days after the defendants filed a Motion to Dismiss, this suggests that the court is not going to allow the Civil Practice Act to operate.

So all the BS spewed out by certain people is moot. You can let Lexis-Nexus cool off now.

I won't go so far as to suggest that the Court has already decided based on my Statement of Claim and the defendants Answers.

But I do feel good if it comes down to me telling my story and them telling their story.

Walt



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