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Subject: hearing in the face of a lawsuit
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JenniferB14
(Colorado)

Posts:108


06/11/2020 2:01 PM  
We are suing the association and it has been a long time in court. We continue to receive violations on the very same issue we are litigating in court. Recently a board member sent me a message (in writing) that the board was advised that HOA correspondence and HOA business and "duty" to me as a plaintiff should go through legal counsel. How exactly then can the board hold a hearing for me regarding the violations when #1 there is no way they are actually impartial decision makers as they hate me, but #2 and most importantly, they have been advised by counsel that board business should go through counsel and yet they are not having counsel present or involved? Are these mutually exclusive? The fact that the board member told me this puts them in a very awkward position to proceed with a hearing I believe. I would appreciate some insight. Theoretically I should just let it all rest as my attorney states because once the court finally rules then all of this will have to sort itself out and any violations and therefore fines etc will have to reverse in the event we win the case. I'm not in violation of the amendment that we are litigating either but alas the board believes we are.
SheliaH
(Indiana)

Posts:3307


06/11/2020 4:25 PM  
Turn this over to your attorney and let him or her address this. You don't want to do anything to jeopardize your case, especially if this hearing is related to whatever you're suing about
JohnC46
(South Carolina)

Posts:9577


06/11/2020 5:34 PM  
Jen

One someone threatens or commences legal action, a smart BOD turns it over to their legal counsel and stops all communication (written or verbal) with that person. From then on it becomes lawyer to lawyer and everybody pays the lawyers.
MelissaP1
(Alabama)

Posts:9413


06/11/2020 5:43 PM  
Hence why I say (along with me everyone...) Suing your HOA is suing yourself and your neighbors. The HOA has to be represented by a lawyer since it's a corporation in court. (Exception is can assign someone to do it but who would?). So the HOA can recommend all communications go through their attorney.

Former HOA President
BenA2
(Texas)

Posts:734


06/11/2020 9:18 PM  
Is it possible that state law requires them to follow a certain procedure with each violation? If they consider them additional violations, they may have to send you a letter and give you an opportunity for a hearing, regardless of a lawsuit for a previous violation.

For example, if your covenants say having a boat in your front yard is a violation and every 30 days constitute a new violation, the HOA would be correct in sending you a new notice every 30 days. The fact that the January case is in litigation would not release the HOA from their duty to send you a violation notice in February, March, etc. This would be true in Texas and I can't imagine an attorney advising an HOA to ignore new violations.

Since you have an attorney, I would follow her advice.


PaulJ6


Posts:0


06/12/2020 5:03 AM  
When I sued my HOA, the HOA kept sending various notices of various penalties to me. (Those notices were further violations of the requirement that I was suing the HOA over, so the HOA was digging itself deeper into a hole, and I made sure to include those notices in the legal documents relating to the case.)

Agreed: turn it over to your lawyer and let your lawyer deal with it.

Are you sending checks for your monthly HOA dues to the HOA, marked "Paid in Full", to give yourself an "accord and satisfaction" defense if the litigation relates to unpaid amounts?
JenniferB14
(Colorado)

Posts:108


06/19/2020 12:10 PM  
my attorney says it's a waste of time to attend a hearing. He feels that if I don't attend a hearing certainly they will start to impose fines which could result in a lien on the home which would all be reversed if we win the lawsuit. If we didn't win the lawsuit that of course would be a bear with lien costs, fees, attorney fees etc. So, it's a hard one.

The board also maintains they are still impartial decision makers since they are not directly named in the lawsuit, but rather we named John Does to include the board members as necessary.

The way I see it is if all communications need to go through an attorney (as advised by their attorney) #1 they haven't at all followed that rule, and #2 if we proceeded would you all agree the attorney for the HOA would need to be present? That would be an expense incurred by the HOA they may not want to pay

Our HOA assessments are only once per year and yes we are paid in full but in the future I will notate our payments as being paid in full.
MelissaP1
(Alabama)

Posts:9413


06/19/2020 2:12 PM  
Well tell me how they will make fines into liens? That's pretty much illegal in many states. The HOA is a corporation. So they have to have an attorney represent them in court. Which again is why you are suing yourself and your neighbors. The HOA has to be pay for the lawyer which is paid out of the dues everyone pays the HOA. Which if the case is considered frivolous the HOA can make you pay for that expense as "damages".

I would question a lawyer that says fines can turn into liens. What kind of lawyer are you going to?

Former HOA President
CathyA3
(Ohio)

Posts:1077


06/19/2020 2:28 PM  
Posted By MelissaP1 on 06/19/2020 2:12 PM
Well tell me how they will make fines into liens? That's pretty much illegal in many states. The HOA is a corporation. So they have to have an attorney represent them in court. Which again is why you are suing yourself and your neighbors. The HOA has to be pay for the lawyer which is paid out of the dues everyone pays the HOA. Which if the case is considered frivolous the HOA can make you pay for that expense as "damages".

I would question a lawyer that says fines can turn into liens. What kind of lawyer are you going to?




Perfectly legal in my state - fines are considered assessments, and it says so in our Declaration.
GeorgeS21
(Florida)

Posts:2816


06/19/2020 5:52 PM  
Cathy,

Interesting!

In Florida fines are against the person, hence, my understanding is they cannot be addressed as a lien against the property.
PaulJ6


Posts:0


06/20/2020 8:16 AM  
Posted By JenniferB14 on 06/19/2020 12:10 PM
my attorney says it's a waste of time to attend a hearing. He feels that if I don't attend a hearing certainly they will start to impose fines which could result in a lien on the home which would all be reversed if we win the lawsuit. If we didn't win the lawsuit that of course would be a bear with lien costs, fees, attorney fees etc. So, it's a hard one.

The board also maintains they are still impartial decision makers since they are not directly named in the lawsuit, but rather we named John Does to include the board members as necessary.

The way I see it is if all communications need to go through an attorney (as advised by their attorney) #1 they haven't at all followed that rule, and #2 if we proceeded would you all agree the attorney for the HOA would need to be present? That would be an expense incurred by the HOA they may not want to pay

Our HOA assessments are only once per year and yes we are paid in full but in the future I will notate our payments as being paid in full.




Just pay $1 by check to cover all amounts in dispute and mark it Paid in Full.

Go to the hearing and bring your lawyer.
GeorgeS21
(Florida)

Posts:2816


06/20/2020 8:46 AM  
Sure - I'll bet that will work out just fine :-)
AugustinD


Posts:3495


06/20/2020 8:46 AM  
Posted By JenniferB14 on 06/11/2020 2:01 PM
We are suing the association and it has been a long time in court. We continue to receive violations on the very same issue we are litigating in court.
I hope you understand that arguably, the HOA is obliged to do this as long as its board believes the violations are legitimate. If the HOA prevails, continuing the fining process helps insure the HOA is paid in full. If you think requiring you to attend hearings is harassment (because the board is angry with you about the lawsuit), maybe so. But I do not think the HOA is breaking the law in requiring the hearings.

Posted By JenniferB14 on 06/11/2020 2:01 PM
Recently a board member sent me a message (in writing) that the board was advised that HOA correspondence and HOA business and "duty" to me as a plaintiff should go through legal counsel. How exactly then can the board hold a hearing for me regarding the violations when #1 there is no way they are actually impartial decision makers as they hate me, but #2 and most importantly, they have been advised by counsel that board business should go through counsel and yet they are not having counsel present or involved?
You cannot require the board to use the HOA attorney. You can control what you do. I would stop questioning the board's actions on the above point.

Posted By JenniferB14 on 06/19/2020 12:10 PM
my attorney says it's a waste of time to attend a hearing.
I disagree. You want to make sure you do everything on your end to indicate your cooperation with the process and keep the board from having an excuse to fine you for violations after the lawsuit began.

Yes it's likely a foregone conclusion that the Board will vote against you at the hearing. Still, attend the hearing, make your case, and be done with it. Do not give the board a procedural reason (namely, failing to attend the hearing) to fine you.

Posted By JenniferB14 on 06/19/2020 12:10 PM
He feels that if I don't attend a hearing certainly they will start to impose fines which could result in a lien on the home which would all be reversed if we win the lawsuit. If we didn't win the lawsuit that of course would be a bear with lien costs, fees, attorney fees etc. So, it's a hard one.
I do not see this as hard. Go through the motions at the hearing. Let the Board continue to vote against you. Forget about the legal meaning of the HOA hearings. Rely on the outcome of the lawsuit to vindicate your position.

Posted By JenniferB14 on 06/19/2020 12:10 PM
The board also maintains they are still impartial decision makers since they are not directly named in the lawsuit, but rather we named John Does to include the board members as necessary.
Of course at this point the board is biased against you. Just go through the motions; attend the hearing; and put in your records documentation of the hearing and the likely latest board vote against you.

Posted By JenniferB14 on 06/19/2020 12:10 PM

The way I see it is if all communications need to go through an attorney (as advised by their attorney) #1 they haven't at all followed that rule,
This is the board's problem. It is not your problem.
Posted By JenniferB14 on 06/19/2020 12:10 PM
and #2 if we proceeded would you all agree the attorney for the HOA would need to be present?
What your or my opinion or anyone's opinion on this is irrelevant. The only party that has the power to vote on the presence of the HOA attorney is a board majority. Is the board foolish not to have the HOA attorney present? Maybe. If the board says stupid things in the hearing that could hurt its position in the lawsuit, then yes, it's stupid not to have the HOA attorney doing the talking at the hearing. If the board simply reads the alleged violation; asks for your response to it; and then adjourns for executive session discussion, then there is nothing wrong with this. Your response should be something like: "Pursuant to my filings in court case #______, in the county of ______, I do not believe I am in violation of the covenants."

Your attorney, if he/she has any brains, could file a motion for an order from the judge to stop all HOA hearings, with the understanding that, should the HOA prevail, you would pay fines up to the date ordered by the court.
AugustinD


Posts:3495


06/20/2020 8:51 AM  
Posted By GeorgeS21 on 06/20/2020 8:46 AM
Sure - I'll bet that will work out just fine :-)
I agree with GeorgeS21's sarcasm here. Pulling a stunt like PaulJ6 proposes will land in the court records and make the OP look like she is trying to cheat the HOA. Do not send the HOA a check for $1 with "Paid in Full" on it. Let the court process do its work. Play the game with the HOA hearings. The OP needs to come off as a shining light of virtue and integrity.
AugustinD


Posts:3495


06/20/2020 9:09 AM  
JenniferB14, does the following December 2017 thread cover the issue now in litigation?
https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/238823/view/topic/Default.aspx

If so, it's been two+ years now of conflict and attorney expenses. I am so sorry you are going through this. You are doing your neighbors a great favor.
PaulJ6


Posts:0


06/20/2020 9:42 AM  
Posted By AugustinD on 06/20/2020 8:51 AM
Posted By GeorgeS21 on 06/20/2020 8:46 AM
Sure - I'll bet that will work out just fine :-)
I agree with GeorgeS21's sarcasm here. Pulling a stunt like PaulJ6 proposes will land in the court records and make the OP look like she is trying to cheat the HOA. Do not send the HOA a check for $1 with "Paid in Full" on it. Let the court process do its work. Play the game with the HOA hearings. The OP needs to come off as a shining light of virtue and integrity.




If the original poster, in good faith, doesn't believe that the fines are due, then that gives the original poster an added defense. Perhaps just pay whatever fines the poster sincerely and genuinely, after inquiry with her counsel, believes are due, and mark that check "Paid in Full". Why would someone not use every defense possible?

"Your Honor, yes, I sent a check to the HOA, marked Paid in Full. My counsel and I went through all of the fines. I wanted to pay the ones that were truly due, in good faith, and determined that the others were imposed without a valid basis. Considering that I was involved in litigation, I hope that the HOA sees the payment as a good-faith attempt to cooperate with my obligations."

And bring your lawyer to the hearing. If you go to the hearing and your lawyer has prepped you for it, or if you say anything at the hearing that is based on the advice that your lawyer has given you, the lawyer could be hit with a bar complaint for violating the "no-contact rule" (which state that a lawyer can't communicate with a party who is represented by counsel, either directly or by sending a third party to convey the lawyer's message)..
GeorgeS21
(Florida)

Posts:2816


06/20/2020 9:43 AM  
Augustin,

What do ya figure the ratio of cost to date, vs the cost of having paid the fine? Or, am I oversimplifying?
AugustinD


Posts:3495


06/20/2020 10:08 AM  
Posted By PaulJ6 on 06/20/2020 9:42 AM
And bring your lawyer to the hearing. If you go to the hearing and your lawyer has prepped you for it, or if you say anything at the hearing that is based on the advice that your lawyer has given you, the lawyer could be hit with a bar complaint for violating the "no-contact rule" (which state that a lawyer can't communicate with a party who is represented by counsel, either directly or by sending a third party to convey the lawyer's message)..
The HOA attorney and OP's attorney ought to settle this issue (of whether further HOA Board hearings are needed) and put something in writing for the judge.
AugustinD


Posts:3495


06/20/2020 10:15 AM  
Posted By GeorgeS21 on 06/20/2020 9:43 AM
What do ya figure the ratio of cost to date, vs the cost of having paid the fine? Or, am I oversimplifying?
GeorgeS21, if the December 2017 thread I linked above is the essence of this dispute, then the dispute is about whether a non-unanimous, membership vote to amend the uses of the lot was lawful. The amendment sought to restrict animals on members' lots to horses only. I think the cost of cooperating with the will of the board and a non-unanimous majority of members could be said to go beyond fines. If the OP had, say, chickens or cows, and refused to remove them in the belief that the amendment was not lawfully passed, and the HOA commenced fining her for violating the amendment, then I think the lawsuit has likely been quite expensive but arguably, a good use of money.

From my reading, this crap (from boards) happens sometimes. I think the OP is legally in the right in this instance.
JenniferB14
(Colorado)

Posts:108


06/20/2020 10:16 AM  
yes 2 years and not a single motion answered by the judge... not an update from the courts... nada. Both parties are sitting and waiting... no activity, nothing, but that also means no additional monies spent either. Both our attorneys will probably forget what they are litigating when it comes time!
JenniferB14
(Colorado)

Posts:108


06/20/2020 10:26 AM  
Also at this time there are no outstanding fines for these violations... at this point fines are not levied because there must be an opportunity for hearing prior to levying fines. Now they are sending me violations for random things not even in any rules or covenants.... too much time on people's hands being home with Covid I think. Also my attorney has not recommended we file a preliminary injunction because of the cost, when he feels it will all be resolved in the long run with the lawsuit. I agree with that unless there is a cheaper way to personally file a stop order on enforcing the covenant under litigation?? One of the board members taunted me through messenger and said well in hindsight you should have put in for a PI initially and in fact I wish you would have because it would have given us a good idea as to the way the case would go. He said but since you didn't the covenant stands and we will continue to enforce it.Grrrr
AugustinD


Posts:3495


06/20/2020 10:48 AM  
Posted By JenniferB14 on 06/20/2020 10:26 AM
One of the board members taunted me through messenger and said well in hindsight you should have put in for a PI initially and in fact I wish you would have because it would have given us a good idea as to the way the case would go. He said but since you didn't the covenant stands and we will continue to enforce it.Grrrr
The HOA attorney and your attorney need to have a talk about the boundaries for direct communications between the board and you.
JohnC46
(South Carolina)

Posts:9577


06/20/2020 10:52 AM  
Jennifer

What is the basis/root of you suing?
AugustinD


Posts:3495


06/20/2020 10:55 AM  
Posted By JenniferB14 on 06/20/2020 10:16 AM
yes 2 years and not a single motion answered by the judge... not an update from the courts... nada. Both parties are sitting and waiting... no activity, nothing, [snip]
It is hard for me to believe Colorado courts are that overwhelmed. Does your attorney say that this kind of delay is usual?
Are you able to follow the motions being made through an online Colorado court system?

I checked on the net for reports of your experiences. I think I identified your HOA, its web site and a link for the governing documents, including the 2017 amendment restricting uses of a unit (lot) to horses, dogs, cats and 'other household animals.'

Just curious: Did your attorney make a motion for summary judgment?

You must be frustrated as all hell. I know I would be trying to find ways to peace while waiting for the lawsuit outcome.
PaulJ6


Posts:0


06/20/2020 10:58 AM  
Posted By JenniferB14 on 06/20/2020 10:16 AM
yes 2 years and not a single motion answered by the judge... not an update from the courts... nada. Both parties are sitting and waiting... no activity, nothing, but that also means no additional monies spent either. Both our attorneys will probably forget what they are litigating when it comes time!




Are the courts in your area closed due to Covid-19?

Anyhow, 2 years of litigation? Mine went a year and that was already really expensive.

Is it not worth considering moving: agreeing to a settlement with the board and as part of the settlement, you could get paid something and you would drop the suit and move?

In my last HOA, the board was truly awful. I moved. It made my life instantly better, as I love my new HOA.
JenniferB14
(Colorado)

Posts:108


06/20/2020 11:26 AM  
Colorado courts were closed for Covid starting in March. No, this is not usual and we are all frustrated. The chief judge was also unaware of cases lingering like this so we will see. Some folks have gone in and spoken with the clerk and were told there were hundreds of cases and only one judge and wouldn't state what number our case was in the stack. Even a recent motion asking for a status report was ignored by the courts. It is a bad deal. We've talked about moving... it hasn't felt right or we haven't seen the right property. We move again it is a mandatory NO HOA. One of the plaintiffs in our lawsuit has put up their home for sale as they are done done as well.

Right at this moment we now have a vote for internet happening, pushed certainly by personal interests to create a large special assessment on everyone to pay for fiber to be brought into the neighborhood. The "vote" has been a moving target, with the affirmative number being dropped to an arbitrary amount, and the voting platform is an unsecured online survey with no log in, ability to access multiple times, not tied to IP addresses, etc. managed by a marketing survey company. And this is supposed to be our legal vote to pursue a forced assessment on something that isn't even a capital improvement. We all have internet at an average of 40mbs through line of site, or some DSL so we aren't eligible for rural grants since the feds and the state broadband department say our internet is adequate and above the minimum they would support for grants. Thus I don't understand how we can force assessments on a non HOA owned asset through a vote that is bogus.

This community is a dream... beautiful as it gets. Properties vast and beautiful with beautiful homes... very pricey neighborhood. Some just feel they are way more elite than others and we seem to have a mob of sorts who rules the community and it has been bad and is getting worse. A prominent realtor who has sold the last several homes in our neighborhood has stated the folks are moving because they are sick of it here and just done with the people and the drama. The Sheriff wants to hold a community meeting to help get things set straight.... it really is bad and I don't think I am being over dramatic. Thanks for all your input.

As far as the hearing, I will try to show and get shot down. Best I can do I guess at this point. I don't even see the point of bringing my attorney and paying more money as the outcome won't change. Kick me if I am wrong.
JenniferB14
(Colorado)

Posts:108


06/20/2020 11:27 AM  
Yes AugustinD we do have a summary judgement motion ripe for nearly 2 years!
AugustinD


Posts:3495


06/20/2020 11:39 AM  
Posted By JenniferB14 on 06/20/2020 11:26 AM
No, this is not usual and we are all frustrated. The chief judge was also unaware of cases lingering like this so we will see. Some folks have gone in and spoken with the clerk and were told there were hundreds of cases and only one judge and wouldn't state what number our case was in the stack. Even a recent motion asking for a status report was ignored by the courts.


Posted By JenniferB14 on 06/20/2020 11:27 AM
Yes AugustinD we do have a summary judgement motion ripe for nearly 2 years!


Wow, first you get to fight the HOA to do the right thing. Now it appears you have to fight the court system. I know courts nationwide are backed up, but this is the first time I have read of this long a delay (with no response coming from the court) in the civil courts. I am glad one of the parties (your attorney?) brought this up with the chief judge. I am sure he/she did this only after exercising enormous patience.

I do keep in mind that those accused (not convicted) of crimes often see court delays that are literally a hazard to their health, as they rot or are assaulted in jail.
MarkW18


Posts:1195


06/20/2020 11:52 AM  
Delays like this are not uncommon. In the ONLY HOA I ever lived in they had a case drag on for 3 years. I am dealing with one right now that started in September 2017 and still not resolved. The plaintiff in the case is kicking the can down the road.
AugustinD


Posts:3495


06/20/2020 11:55 AM  
Posted By MarkW18 on 06/20/2020 11:52 AM
Delays like this are not uncommon. In the ONLY HOA I ever lived in they had a case drag on for 3 years.
RTFT. Cases dragging on for years through motion practice and filings yada is common. No response from the court for a motion, and presumably a motion for a hearing on the motion, for two years is unusual.
MarkW18


Posts:1195


06/20/2020 11:59 AM  
Posted By AugustinD on 06/20/2020 11:55 AM
Posted By MarkW18 on 06/20/2020 11:52 AM
Delays like this are not uncommon. In the ONLY HOA I ever lived in they had a case drag on for 3 years.
RTFT. Cases dragging on for years through motion practice and filings yada is common. No response from the court for a motion, and presumably a motion for a hearing on the motion, for two years is unusual.



You really have a chip on your shoulder, don't you!
PaulJ6


Posts:0


06/20/2020 12:54 PM  
Posted By JenniferB14 on 06/20/2020 11:26 AM
Kick me if I am wrong.




If you bring your lawyer, then the board should immediately end the hearing and reschedule it when its counsel can come. "Its counsel" would likely be its regular counsel, which it pays by the hour. Thus planning to bring your lawyer could throw a wrench in the board's plans to fine you.

I would still move. There are some amazing HOAs out there. I live in one of them. I've also just dealt with some awful ones. It's not worth the headache. Or the legal fees.
PaulJ6


Posts:0


06/20/2020 12:54 PM  
Posted By JenniferB14 on 06/20/2020 11:26 AM
Kick me if I am wrong.




If you bring your lawyer, then the board should immediately end the hearing and reschedule it when its counsel can come. "Its counsel" would likely be its regular counsel, which it pays by the hour. Thus planning to bring your lawyer could throw a wrench in the board's plans to fine you.

I would still move. There are some amazing HOAs out there. I live in one of them. I've also just dealt with some awful ones. It's not worth the headache. Or the legal fees.
LetA
(Nevada)

Posts:989


06/20/2020 1:19 PM  
I say your HOA is playing with fire, and they're about to suffer serious burns. Your HOA should not be sending you ANY correspondences. No new fines, warnings, violation letters etc. Even your monthky/ quarterly assessments, I would send them all to your attorney of record. A they shouldn't be sending you any new violations, not for the item currently in litigation or new unrelated violations, all of that is considered harassment and intimidation. Your trial judge is going to have a field day with this. Just sit back, relax, keep giving those letters to your lawyer.. Your HOA is the one that should buckle up and pull their hip huggers up to their necks, because the caca is going to be real DEEP when the judge lets in to them.
JohnC46
(South Carolina)

Posts:9577


06/20/2020 1:37 PM  
Posted By LetA on 06/20/2020 1:19 PM
I say your HOA is playing with fire, and they're about to suffer serious burns. Your HOA should not be sending you ANY correspondences. No new fines, warnings, violation letters etc. Even your monthky/ quarterly assessments, I would send them all to your attorney of record. A they shouldn't be sending you any new violations, not for the item currently in litigation or new unrelated violations, all of that is considered harassment and intimidation. Your trial judge is going to have a field day with this. Just sit back, relax, keep giving those letters to your lawyer.. Your HOA is the one that should buckle up and pull their hip huggers up to their necks, because the caca is going to be real DEEP when the judge lets in to them.




I think the opposite. HOA business has to keep going until there is a legal intervention/decision. Filing suit is not a legal intervention.
PaulJ6


Posts:0


06/20/2020 3:09 PM  
Posted By JohnC46 on 06/20/2020 1:37 PM
Posted By LetA on 06/20/2020 1:19 PM
I say your HOA is playing with fire, and they're about to suffer serious burns. Your HOA should not be sending you ANY correspondences. No new fines, warnings, violation letters etc. Even your monthky/ quarterly assessments, I would send them all to your attorney of record. A they shouldn't be sending you any new violations, not for the item currently in litigation or new unrelated violations, all of that is considered harassment and intimidation. Your trial judge is going to have a field day with this. Just sit back, relax, keep giving those letters to your lawyer.. Your HOA is the one that should buckle up and pull their hip huggers up to their necks, because the caca is going to be real DEEP when the judge lets in to them.




I think the opposite. HOA business has to keep going until there is a legal intervention/decision. Filing suit is not a legal intervention.




Agreed. Both sides need to act normally about things that are not part of the lawsuit.
LetA
(Nevada)

Posts:989


06/20/2020 5:31 PM  
Posted By PaulJ6 on 06/20/2020 3:09 PM
Posted By JohnC46 on 06/20/2020 1:37 PM
Posted By LetA on 06/20/2020 1:19 PM
I say your HOA is playing with fire, and they're about to suffer serious burns. Your HOA should not be sending you ANY correspondences. No new fines, warnings, violation letters etc. Even your monthky/ quarterly assessments, I would send them all to your attorney of record. A they shouldn't be sending you any new violations, not for the item currently in litigation or new unrelated violations, all of that is considered harassment and intimidation. Your trial judge is going to have a field day with this. Just sit back, relax, keep giving those letters to your lawyer.. Your HOA is the one that should buckle up and pull their hip huggers up to their necks, because the caca is going to be real DEEP when the judge lets in to them.




I think the opposite. HOA business has to keep going until there is a legal intervention/decision. Filing suit is not a legal intervention.




Agreed. Both sides need to act normally about things that are not part of the lawsuit.






HMMMM!!!! What about a BK? recently a home owner filed BK we had to cease all contact with the HO.
MelissaP1
(Alabama)

Posts:9413


06/20/2020 5:43 PM  
BK is a different process altogether. Can't contact them because your basically trying to get blood out of a turnip at that point. The HOA is pretty much out of the Bankruptcy process unless they have a lien on the property. Bankruptcy depending on the type sometimes doesn't apply to HOA dues being owed. It's been awhile had to deal with one. The HOA doesn't have a dawg in the hunt when it comes to a person declaring bankruptcy.

Other situation like collecting monies for liens, fine violations, dues, or money paid to fix violations, are HOA's business. The HOA has the right to collect money or damages it is owed. Bankruptcy is usually a personal issue not involving the HOA.

Former HOA President
PaulJ6


Posts:0


06/21/2020 10:06 AM  
Maybe this is going off track, but are you suing the property manager, board members individually, etc., and doing a derivative suit on behalf of the HOA against all sorts of people?

That might speed this up.
PeggyW3
(Michigan)

Posts:42


06/23/2020 8:29 AM  
This is a bit different, but a Co-owner has engaged an attorney to write us some letters stating her complaints (all related to our by-laws) and requested some documents. There is not law talk or threatening of a law suit. A Director of our Board wants to turn it over to an attorney asap as he thinks because she has retained a lawyer, we need a lawyer. I believe it is being premature and we should try, as a Board, to work with this co-owner to see if there is some way we can come to a mutual agreement.

Additionally, you need to understand the complaint is against our President and there are 3 other co-owners with additional complaints against him, without lawyers involved. Total 4 co-owners, about 14 violation complaints.

How can we get him to recuse himself, do we need a lawyer to do this, what would a lawyer probably recommend we do with this President who needs to be out of the picture? And should we get a lawyer or is it premature to do that?

The meeting is tomorrow, so please help me asap....I appreciate it very much.

AugustinD


Posts:3495


06/23/2020 8:36 AM  
PeggyW3, I suggest starting a new thread. Subsequently I think you are more likely to get responses.
Posted By PeggyW3 on 06/23/2020 8:29 AM

How can we get [the HOA president] to recuse himself[?].
Is there a board majority that wants the president to recuse himself? If so, then the board majority should simply document its vote at a properly noticed executive session and then let the vice-president take over presiding at the part of the meeting discussing the complaints against the president.

If a board majority (foolishly) does not feel that the president should recuse himself, then you can check your governing documents and state corporate statutes for removing directors.


PaulJ6


Posts:0


06/24/2020 7:49 AM  
Posted By PeggyW3 on 06/23/2020 8:29 AM
This is a bit different, but a Co-owner has engaged an attorney to write us some letters stating her complaints (all related to our by-laws) and requested some documents. There is not law talk or threatening of a law suit. A Director of our Board wants to turn it over to an attorney asap as he thinks because she has retained a lawyer, we need a lawyer. I believe it is being premature and we should try, as a Board, to work with this co-owner to see if there is some way we can come to a mutual agreement.

Additionally, you need to understand the complaint is against our President and there are 3 other co-owners with additional complaints against him, without lawyers involved. Total 4 co-owners, about 14 violation complaints.

How can we get him to recuse himself, do we need a lawyer to do this, what would a lawyer probably recommend we do with this President who needs to be out of the picture? And should we get a lawyer or is it premature to do that?

The meeting is tomorrow, so please help me asap....I appreciate it very much.





AugustinD is correct on the recusal matter.

As someone who had counsel and was dealing with a board that refused to discuss anything directly: getting lawyers involved, and refusing to discuss things directly with the owner, is the wrong thing to do. That's what my board did and it resulted in me filing a lawsuit.

Your approach--trying to work with the owner--is the right approach, and is more likely to lead to a peaceful solution.

Tell the owner that you are willing to meet with the owner and that the board will not be using counsel and so you request that the owner also not use counsel at the meeting.

Then have a meeting with the owner, either in executive session at a board meeting or through a special informal get-together with the owner. Try to talk things out. That's the best approach.
MichelleC8
(California)

Posts:43


06/26/2020 3:17 PM  
Posted By MelissaP1 on 06/11/2020 5:43 PM
Hence why I say (along with me everyone...) Suing your HOA is suing yourself and your neighbors. The HOA has to be represented by a lawyer since it's a corporation in court. (Exception is can assign someone to do it but who would?). So the HOA can recommend all communications go through their attorney.




exactly what they said. I would say at this point its a form or harassment.
KerryL1
(California)

Posts:7333


06/26/2020 4:59 PM  
I agree with Augustine, Peggy. Your topic is interesting enough. Start a new thread.
JenniferB14
(Colorado)

Posts:108


06/29/2020 2:06 PM  
Hey all... I’m following due Diligence after this discussion and thread. The board sent me a meeting date and time and I have emailed three times asking to reschedule due to us flying home that evening from out of town and we are expected to land about 35 minutes prior to the meeting g time. The board and try e management company has chosen to just ignore all these requests, then last night sent us an invite for a ZOOM meeting for our hearing! The CO nonprofit act allows for board meetings to be done through teleconferencing (implied) but my understanding is this is not the case for member meetings and especially a hearing where due process must be followed. I’m ticked, have sent a response stating we are opposed to a hearing via zoom but will do our best to sign on while driving home from the airport with my family. Also I requested any evidence the HOA feels they have to claim we are in violation of the covenant and forward it to us immediately so we may prepare a response to such evidence. Our attorney said this is kangaroo court and we are t going to play the game of our attorney showing up on the call . His feeling is we may as well “attend” as we are no worse off not attending than attending. Quick responses greatly appreciated as the hearing is now in a few hours! Grrrrr
GeorgeS21
(Florida)

Posts:2816


06/29/2020 2:47 PM  
Sounds like your attorney is going to be able to bill you for hours - do you have a point where you stop "investing" in the attorney?
JohnC46
(South Carolina)

Posts:9577


06/29/2020 4:05 PM  
Were it me, and I was already suing my association, I would cease all communications with them. Let it legally be worked out assuming you are willing to absorb the cost should it legally go against you.
PaulJ6


Posts:0


06/29/2020 5:13 PM  
Posted By JenniferB14 on 06/29/2020 2:06 PM
Hey all... I’m following due Diligence after this discussion and thread. The board sent me a meeting date and time and I have emailed three times asking to reschedule due to us flying home that evening from out of town and we are expected to land about 35 minutes prior to the meeting g time. The board and try e management company has chosen to just ignore all these requests, then last night sent us an invite for a ZOOM meeting for our hearing! The CO nonprofit act allows for board meetings to be done through teleconferencing (implied) but my understanding is this is not the case for member meetings and especially a hearing where due process must be followed. I’m ticked, have sent a response stating we are opposed to a hearing via zoom but will do our best to sign on while driving home from the airport with my family. Also I requested any evidence the HOA feels they have to claim we are in violation of the covenant and forward it to us immediately so we may prepare a response to such evidence. Our attorney said this is kangaroo court and we are t going to play the game of our attorney showing up on the call . His feeling is we may as well “attend” as we are no worse off not attending than attending. Quick responses greatly appreciated as the hearing is now in a few hours! Grrrrr




I would go, get a recording of the Zoom meeting (be sure to get the board's consent to audio recording) and then take the recording to the lawyer. Deny everything during the hearing.
PaulJ6


Posts:0


06/30/2020 9:39 AM  
Could you please let us know how it turned out?

Are you putting a recording of the Zoom meeting up on Youtube?
JenniferB14
(Colorado)

Posts:108


07/03/2020 7:03 AM  
that's funny! I think I may do that! Actually the zoom meeting didn't end up happening because I sent the entire board an email stating that the refusal to answer my requests for a rescheduled hearing 3 times is deliberate and that I charged them with planning to claim we didn't show up for a hearing so they may immediately fine us. We were flying back home from Flagstaff, AZ and at best I would have been driving home with the entire family trying to manage a zoom hearing. I also told them in order to preserve my due process I needed all the evidence the HOA feels it has against me showing how I have violated the covenant prior to the hearing so that I may adequately prepare. I ended up receiving an email from the president stating they will reschedule the hearing. Hmmm... after 3 emails and no responses they suddenly try to reschedule at the 11th hour. Anyhow I have already stated my objections for a zoom hearing as I do not believe that is proper due process either and I did not consent to such a meeting as the law requires an in person hearing. So... they still haven't responded at this point either.
JohnC46
(South Carolina)

Posts:9577


07/03/2020 8:11 AM  
Jenn

As you are suing the BOD, why do you keep poking the bear instead of ignoring them and let your attorney handle it?
JenniferB14
(Colorado)

Posts:108


07/03/2020 1:37 PM  
Not poking the bear at all actually. With our attorney having been paid over $50k thus far money may need to be reserved for more important items like court appearances!
MelissaP1
(Alabama)

Posts:9413


07/03/2020 2:00 PM  
Can you refresh us what the whole court case is about? Maybe I got lost along the way.
Wasn't sure of the reason and what is going on clearly.

Former HOA President
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