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Subject: Suing Board members, Not the HOA Board
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Author Messages
GenoS
(Florida)

Posts:4276


07/03/2015 6:41 PM  
Off topic observation: Does anyone else see 6 pages of comments for this thread on the main page? Page 6 can be clicked on but there are no comments there. Currently this page, Page 5, contains the latest comments in the thread. I saw this same thing a few weeks ago on another thread. Forum software issue, perhaps?
JohnC46
(South Carolina)

Posts:11638


07/03/2015 6:41 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.





I expect the same result and he will do a Mike from MA and be gone.
GenoS
(Florida)

Posts:4276


07/03/2015 6:42 PM  
... and of course, my last comment ends up as the first one on Page 6, so now there are legitimately 6 pages of comments. But before my last comment it still showed 6 pages of comments even though, at the time, there were only 5. Never mind, I guess, the "evidence" is gone now.
MelissaP1
(Alabama)

Posts:10576


07/03/2015 9:13 PM  
That happens alot here. It may because it is caught in between having enough characters to go to the next page. Like half of your post may give it enough to go to the next page but since it takes a complete post to turn over, the page displays as the next but your on the previous. If that makes sense.

Former HOA President
GenoS
(Florida)

Posts:4276


07/03/2015 10:52 PM  
Posted By MelissaP1 on 07/03/2015 9:13 PM
That happens alot here. It may because it is caught in between having enough characters to go to the next page. Like half of your post may give it enough to go to the next page but since it takes a complete post to turn over, the page displays as the next but your on the previous. If that makes sense.

It does, thanks Melissa. Glad to know it's not just me imagining it.
LarryB13
(Arizona)

Posts:4099


07/03/2015 10:57 PM  
Posted By GenoS on 07/03/2015 10:52 PM

Glad to know it's not just me imagining it.



I noticed doing the blank page thing, too. Just figure this thread was exceeding its BS quota.
MelissaP1
(Alabama)

Posts:10576


07/04/2015 8:00 AM  
Also note that sometimes it happens when they remove posts on here. For some reason the "filler space" remains. So for some of those long winded argumentative posts where someone crosses the line the removed posts still shows multiple pages. I've noticed this a few times in the past as well.


Former HOA President
TimB4
(Tennessee)

Posts:17830


07/20/2015 7:17 PM  
Walter,

What was the result of the hearing?
Are you on track to go to trial or did the court dismiss the case?

WalterM3
(Georgia)

Posts:371


07/21/2015 5:27 AM  
It was dismissed without prejudice.

The HOA attorney told the judge that I had no fiduciary relationship to the individual Board members and that was it. The judge told me I would have to pierce the corporate veil.

She found for the HOA because they had a lawyer. That was the bottom line.

Walt
LarryB13
(Arizona)

Posts:4099


07/21/2015 5:57 AM  
Posted By WalterM3 on 07/21/2015 5:27 AM
It was dismissed without prejudice.

The HOA attorney told the judge that I had no fiduciary relationship to the individual Board members and that was it. The judge told me I would have to pierce the corporate veil.

She found for the HOA because they had a lawyer. That was the bottom line.




Several weeks ago I predicted your case would be dismissed and that you would claim it was due to corruption in the courts.

Your case was dismissed because the HOA's attorney took the time to read the statutes and the case law. He or she presented an argument to the judge, who found your case lacking any substance.

Bottom line is that you chose to do a poor job of research before tilting at the windmills.

WalterM3
(Georgia)

Posts:371


07/21/2015 6:10 AM  
That is just wrong because the judge didn’t have to apply any of that. She made a –decision- to apply the civil practice act. It didn’t have to apply and it shouldn’t apply.

The adjudication just appeared on the court website this morning. Being dismissed without prejudice means it can be brought up again – if and when I decide to try what the judge suggested – pierce the corporate veil and sue the HOA itself.

Some of my neighbors are telling me it is moot because two of the most corrupt board members have to run for reelection next Spring and they have no chance of retaining their seats. They are as a group much cowed, as of this writing.

Walt
TimB4
(Tennessee)

Posts:17830


07/21/2015 7:04 AM  
Walter,

Thank you for the update.
WalterM3
(Georgia)

Posts:371


07/21/2015 7:14 AM  
Posted By TimB4 on 07/21/2015 7:04 AM
Walter,

Thank you for the update.




Yeah, after being told by many, including the HOA attorney, that I would bear all the costs, it was good to see a dismissal without prejudice.

That says to me that the issues were valid, or at least worthy of legal consideration. And like I say, these jerk Board members have backed way off their arrogant actions. That is what my neighbors are telling me. That was the main thing, not the money.

And – I am going to give it a couple of weeks and then demand per the statute how much money they paid the attorney to defend their malfeasance. There is an insurance policy, but as a friend of mine pointed out – it has a deductible. So the HOA will be out some thousands of dollars I would guess.

It is fun to expose corruption. It needs to happen a lot more in covenanted communities.

Walt
FredN
(California)

Posts:87


07/21/2015 7:27 AM  
Here is an excellent Derivative suit in California......Here is a link to the website


http://stulta.com/forumo/
MelissaP1
(Alabama)

Posts:10576


07/21/2015 7:32 AM  
So telling you that you have to sue the HOA itself and NOT the individual board members had merit? Who knew? No they did not win because they had a lawyer. They have to have a lawyer to represent them. They are a corporation which either has to be represented by a lawyer or a competent representative agreed upon by them.

You basically brought the WRONG lawsuit is what the judge is saying. If your going to sue, it has to be the HOA as a WHOLE. Which means you will have to sue yourself and your neighbors... Good luck on that...

Former HOA President
WalterM3
(Georgia)

Posts:371


07/21/2015 7:50 AM  
Posted By MelissaP1 on 07/21/2015 7:32 AM
So telling you that you have to sue the HOA itself and NOT the individual board members had merit? Who knew? No they did not win because they had a lawyer. They have to have a lawyer to represent them. They are a corporation which either has to be represented by a lawyer or a competent representative agreed upon by them.

You basically brought the WRONG lawsuit is what the judge is saying. If your going to sue, it has to be the HOA as a WHOLE. Which means you will have to sue yourself and your neighbors... Good luck on that...




You are basically saying that a Board of Directors is impervious to action no matter how corruptly they act. Yes, I would sue the HOA Board to break up or ameliorate corruption.

And I yet may.

Walt
MelissaP1
(Alabama)

Posts:10576


07/21/2015 8:41 AM  
You are STILL NOT GETTING IT! You do NOT sue the HOA board. You sue the ENTIRE HOA. The Board represent the WHOLE HOA. So your suit will be against not only the board members but EVERY member in the HOA. Of which you are a member... and your neighbors. So if you plan on bringing another suit against your board... Your facing the SAME result... It's no difference than what you already done.

Former HOA President
WalterM3
(Georgia)

Posts:371


07/21/2015 8:46 AM  
Posted By MelissaP1 on 07/21/2015 8:41 AM
You are STILL NOT GETTING IT! You do NOT sue the HOA board. You sue the ENTIRE HOA. The Board represent the WHOLE HOA. So your suit will be against not only the board members but EVERY member in the HOA. Of which you are a member... and your neighbors. So if you plan on bringing another suit against your board... Your facing the SAME result... It's no difference than what you already done.




Semantics.

You seem to fear such an outcome quite a bit. I wonder why.

Walt
MelissaP1
(Alabama)

Posts:10576


07/21/2015 9:03 AM  
It is not semantics. It's reality. You are suing yourself and your neighbors... You are NOT due a refund and neither are your fellow members. The money collected would just go back into the whole that was dug. Benefitting no one...

Former HOA President
WalterM3
(Georgia)

Posts:371


07/21/2015 10:03 AM  
Posted By MelissaP1 on 07/21/2015 9:03 AM
It is not semantics. It's reality. You are suing yourself and your neighbors... You are NOT due a refund and neither are your fellow members. The money collected would just go back into the whole that was dug. Benefitting no one...




A couple of people have told me that what I have done has already had a good effect.

People know that the Board members acted arrogantly and stupidly, ignoring their responsibility to document the money they spent -- as required by law.--

Now they have spent the HOA's money to cover their wrongdoing. They are de-fanged, impotent, inactive.

That is a good outcome.

You constantly referring to this argument does make me wonder if you don't fear it yourself.

So what if the HOA has to pay? People make up organizations. There is always a way to get effect on target.

Walt
MelissaP1
(Alabama)

Posts:10576


07/21/2015 10:32 AM  
Why is it that we board members or ex-board members are supposed to "fear" people like you? Really? Your feeding your ego that much? Stop putting your insecurities on others... I have no dog in this hunt. What I do have? Common sense. Something you seem desperately to lack. Which is putting your neighbors at high risk of being sued for something they want no part of. If they did, you'd have yourself enough people to kick the board out or change the rules. The RIGHT way of doing what you want done...

So keep blaming the board for all your ills and bills while you run both of them up... Because they aren't doing anything but their job. Protecting the HOA from being sued and paying out money of the owner's pockets... Something you seem too blind to see.

Former HOA President
WalterM3
(Georgia)

Posts:371


07/21/2015 11:17 AM  
Posted By MelissaP1 on 07/21/2015 10:32 AM
Why is it that we board members or ex-board members are supposed to "fear" people like you? Really? Your feeding your ego that much? Stop putting your insecurities on others... I have no dog in this hunt. What I do have? Common sense. Something you seem desperately to lack. Which is putting your neighbors at high risk of being sued for something they want no part of. If they did, you'd have yourself enough people to kick the board out or change the rules. The RIGHT way of doing what you want done...

So keep blaming the board for all your ills and bills while you run both of them up... Because they aren't doing anything but their job. Protecting the HOA from being sued and paying out money of the owner's pockets... Something you seem too blind to see.




You should 'fear' people like me because I have no problem with showing up corrupt Board members.

Walt
MelissaP1
(Alabama)

Posts:10576


07/21/2015 12:53 PM  
Actually, anyone who ever threatened to sue us my response was always to laugh. I found it comical and told anyone feel free to sue. I will wait on the paperwork... No one ever did. I am not scared of a lawsuit threat. Never made me even flinch. Why be scared of a lawsuit??? That is just wasted time, energy, and money. Try another intimidation/bully/I am a victim/playing hero approach... Anyone who falls for that crap gets what they deserve. I have better things to do like my job... No living in fear cause you want it that way... Your problem with me is NOT my problem with me...

Former HOA President
PamM6
(Michigan)

Posts:41


07/21/2015 12:54 PM  
Good response to Melissa. We had them and we got rid of them. Our HOA is new and improved! Stand up and be counted!
MelissaP1
(Alabama)

Posts:10576


07/21/2015 1:04 PM  
Excuse me but who are you to come here and treat us like we are corupt board members? The last I checked your board members were not here giving helpful free advice on HOAs. Nor have you even recognized the fact that most of us posting here are the "Good guys".

Most of us who are regulars have faced crooked or badly run HOAs. Who has not? However, we are here to provide help and guidance to those who want to make positive changes in their HOA. We have been there and got the tshirt.

I for one had to deal with a con man ex president who ruled the roost. I was able to get elected by my fellow members and turn the place around. No more crooked members and things went back to rules. My HOA was well run and even successful.

So to come here and accuse people of being like your boards or crooked members is waaay uncalled for. We are here because we know how to succeed and to make success. We do not need people to put us in fear. You do not have that power over me or anyone else in here. What you do have? An opinion that is not helpful, short sited, and selfish... Sometimes you are just wrong and we are going to tell you your wrong. Do not like it? Then correct yourself or walk away to learn your own lessons....

Former HOA President
PitA


Posts:0


07/21/2015 2:04 PM  
And the beat goes on ....

and on

and on

.
.
.
.

JonD1


Posts:0


07/21/2015 2:25 PM  
Posted By PamM6 on 07/21/2015 12:54 PM
Good response to Melissa. We had them and we got rid of them. Our HOA is new and improved! Stand up and be counted!





Pam perhaps you should go back and read thought this entire thread before you offer your blanket " stand up and be counted" advice. Walter just cost his property a few bucks. Surely, better ways to spend HOA funds.

Pitching a bitch just forcthexsake of proving a point serves no one.

And it has been shown here quite a few times those claiming corruption and malfeasance many times don't understand what that actually means or interpret the law to suit their own viewpoint.
JonD1


Posts:0


07/21/2015 2:51 PM  
Posted By WalterM3 on 07/21/2015 11:17 AM
Posted By MelissaP1 on 07/21/2015 10:32 AM
Why is it that we board members or ex-board members are supposed to "fear" people like you? Really? Your feeding your ego that much? Stop putting your insecurities on others... I have no dog in this hunt. What I do have? Common sense. Something you seem desperately to lack. Which is putting your neighbors at high risk of being sued for something they want no part of. If they did, you'd have yourself enough people to kick the board out or change the rules. The RIGHT way of doing what you want done...

So keep blaming the board for all your ills and bills while you run both of them up... Because they aren't doing anything but their job. Protecting the HOA from being sued and paying out money of the owner's pockets... Something you seem too blind to see.




You should 'fear' people like me because I have no problem with showing up corrupt Board members.

Walt





Walter
I would like to thank you for taking the time to post your update.

Sadly, your failed attempt to prove a point doesn't seem to have affected you willingness to carry on.

Your case was dismissed. Any way you care to flip that around you lost. Your efforts to EXPOSE this corrupt board and hold THEM accountable failed.

And please try to hold off on all the praise thrown your way as if your efforts defanged or left the board impotent. These same folks remain in power.
And the praise you now seem to value was of no concern to you before because YOU did this for yourself no one else as you said.

And my guess with the news YOUR case was dismissed sort of supports them rather than YOU in the eyes of most.

As some of us suggested your reliance on a $50 legal consultation left you outgunned versus an actual lawyer. And despite all your self serving bravado and claimed legal knowledge in the end simply all worthless.

I would hope you would find something else with which to use up your time. Certainly in this case there was little real return for your efforts.
And speaking for myself, your suggestion some of us who serve on our property's boards might in fact live in fear of folks like you or those who engage in similar flawed and failed legal efforts. You would be really kidding yourself.

Your case was dismissed. For all your efforts to win your case here on this site and suggesting just how solid and virtuous your complaint was
Is was dismissed outright. The court didn't even bother to hear your well rehearsed tirades about corruption, malfeasance and the violation of state law. You were thumped. Any other representation to the contrary would be trying to paint lipstick on a pig.
Standing up for something is good try finding something worth all this effort. Besides proving yourself right.

Thanks again for the update. Most folks in your situation after they are ruled against simply disappear never to be heard from again.
JohnC46
(South Carolina)

Posts:11638


07/21/2015 3:20 PM  
but..but..the Judge used the wrong laws to thump him......LOL
TimB4
(Tennessee)

Posts:17830


07/21/2015 3:21 PM  
The good thing is that even though the actual outcome of the action wasn't what was being asked for (that the legal fees be recouped by the individual board members), Walter says that there have been changes for the good by the way actions of the Board are now done.

Hopefully the potential negative consequences (less volunteers, etc) of the action Walter took won't happen.

I'm glad it worked out.
PamM6
(Michigan)

Posts:41


07/21/2015 3:39 PM  
To comment further. Up line (is that the right word?) I was accused of not reading all 6 pages started by the OP. Correct, I did not. I'll add ... yrs ago (don't ask me how many) someone in our community threatened to sue, did file and then withdrew. Most people in our community just didn't care about the goings-on of the board. I hadn't been to a board meeting and I think it was the same for others. Then the serious gossip and calls from one homeowner to another started. I don't know the details, but the entire board resigned followed with the homeowner withdrawing the lawsuit. I know he spent plenty, at least for this tiny little community I think and I could be wrong, that the incident started the ball rolling. All of a sudden the good guys came out of the woodwork and lo and behold we got a new board and since then the change in our community has been awesome. Really, really awesome. The lawsuit didn't seem to repel volunteers, it did just the opposite. People wanted to get this place straightened out and did they ever! I don't remember the details. All I know is that it wasn't due to embezzling, it was something else. Perhaps Walter's community will go through the same upheaval and will be better for it.
TimB4
(Tennessee)

Posts:17830


07/21/2015 3:43 PM  
Posted By PamM6 on 07/21/2015 3:39 PM

Perhaps Walter's community will go through the same upheaval and will be better for it.




Perhaps. That would always be a good thing for any Association if it happens.
JonD1


Posts:0


07/21/2015 3:58 PM  
Posted By JohnC46 on 07/21/2015 3:20 PM
but..but..the Judge used the wrong laws to thump him......LOL



Like many folks Walter now searches for something positive after a total failure. His case was dismissed without prejudice the meaning of which Walter does not understand. He sees that as a positive. Since this court never was able to review the merits of his complaint because it was dismissed on it's face this was the only option. Walter failing to understand this principle finds this to be in his favor. Hardly.

Yes the judge applied the wrong standards. Walter after all has a better understanding of the law than a sitting judge. The odds of that in the real world zero.

Legal cases can be a crap shoot. Going into any court unrepresented only serves to lessen the odds of you being successful. People who study the law and graduate after passing the bar are real lawyers. The notion that somehow your knowledge surpasses that of a lawyer or sitting judge is delusional.

And the final attempt to salvage something positive being the good changes others have reported back all now made this somehow worth it. Praise from people who you previously stated did not matter to you. Now that is desperation in my book.

This in the end was over before it ever started. Walter had no standing to even file his complaint.
Anyway you slice it Walter was thumped. We waited and the outcome was not positive for Walter despite all the dancing around he is now doing.




JonD1


Posts:0


07/21/2015 4:11 PM  
Posted By PamM6 on 07/21/2015 3:39 PM
To comment further. Up line (is that the right word?) I was accused of not reading all 6 pages started by the OP. Correct, I did not. I'll add ... yrs ago (don't ask me how many) someone in our community threatened to sue, did file and then withdrew. Most people in our community just didn't care about the goings-on of the board. I hadn't been to a board meeting and I think it was the same for others. Then the serious gossip and calls from one homeowner to another started. I don't know the details, but the entire board resigned followed with the homeowner withdrawing the lawsuit. I know he spent plenty, at least for this tiny little community I think and I could be wrong, that the incident started the ball rolling. All of a sudden the good guys came out of the woodwork and lo and behold we got a new board and since then the change in our community has been awesome. Really, really awesome. The lawsuit didn't seem to repel volunteers, it did just the opposite. People wanted to get this place straightened out and did they ever! I don't remember the details. All I know is that it wasn't due to embezzling, it was something else. Perhaps Walter's community will go through the same upheaval and will be better for it.




Pam based on your advice that Walter should stand his ground I determined you could not have read the actual details in this matter.

If I am reading your response correctly, in fact you did not.

You speculated to there being some correlation between Walter's situation and what took place on your own property.
In Walter's case you failed to read through the details and in your case you are missing knowledge of what actually took place except in quite general terms.

And somehow you can connect these two.
BanksS


Posts:0


07/21/2015 5:16 PM  
Walter,

Thanks for providing the details of your lawsuit. Hopefully your association will see some benefit from the conflict.
GenoS
(Florida)

Posts:4276


07/21/2015 7:33 PM  
I also want to thank Walter for following up on what happened. Say what you will but a lesser man would have skulked off into the night and never shown his face again. Which isn't to say I side with him in his dispute. Nevertheless, "piercing the corporate veil" has a very specific meaning and is way more than just "suing the HOA". It's much more than that, and a very difficult thing to accomplish. Normally a corporation is treated under the law as a separate legal "person". Piercing the corporate veil involves making the shareholders, or in the case of an HOA the members, assume liability for the responsibilities of the corporation. Wikipedia has a good article on it. It's an extreme measure to take and an arduous one to litigate. People form corporations to limit their personal liabilities in the business. Piercing the corporate veil entails doing away with that liability shield. Heavy duty stuff.
PamM6
(Michigan)

Posts:41


07/21/2015 8:19 PM  
No JonD1, I you misread my comments. Please re-read.
BobD4
(up north)

Posts:956


07/21/2015 11:07 PM  
Tough though it is for any DIY self represented litigant to win against professional counsel, it can be murderously tough to persuade a judge to "pierce the corporate veil" of a condo corporation.

Dissenters like Walter may have no idea how tough, nor how much toxic retaliation may later arrive after other owners discover the shortfall between what it cost to defend and what the corporation might be awarded and may partially collect if it beats the dissenter.

"Piercing the veil" is asking a judge to open the floodgates. It is asking to delve into murky politics to find Director(s) pursuing significant personal benefits ( or divurgent interests )in flagrant conflict with the condo corporation's interests. The remedy is otherwise legislated left to the electoral process, not to the congested court system.

If the "Walters" want to hit individual Directors they may need to look at overwhelmingly strong evidence of divurgent acts that their particular jurisdiction might have censured personally in the past.

In the last decade our jurisdiction has censured a condo President who secretly sued his condo corporation and let default judgement occur without knowledge of other Board members. It failed to remove a Director caught on tape physically attacking geriatric owners. It imposed large personal penalties selectively and personally on condo Directors ruled in contempt of court.

It recently stripped a President of corporate protection ( after his being named a co-defendant with separate counsel of his own ) for engineering a form of voodoo grand-fathering into a Rule. Although the Rule was legitimately adopted, the "voodoo" was ruled sufficient and personally attributable to deliberately negate the effects of single family Declaration restrictions against his & other dorm style commercial lodging ( http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18187&catid=9 )

The 'Walters' need to ask beforehand if they have the skillsets, bucks, tough skin and really big evidence. Maybe this one did not (enough).



TimB4
(Tennessee)

Posts:17830


07/22/2015 1:02 AM  
For those who are interested:


Piercing the Corporate Veil: When LLCs and Corporations May be at Risk from Nolo.com

The Three Justifications for Piercing the Corporate Veil from Harvard Law School Forum

Piercing the Corporate Veil from uslegal.com

WalterM3
(Georgia)

Posts:371


07/22/2015 4:42 AM  
Posted By TimB4 on 07/22/2015 1:02 AM
For those who are interested:


Piercing the Corporate Veil: When LLCs and Corporations May be at Risk from Nolo.com

The Three Justifications for Piercing the Corporate Veil from Harvard Law School Forum

Piercing the Corporate Veil from uslegal.com





Thanks!

Walt
WalterM3
(Georgia)

Posts:371


07/22/2015 4:42 AM  
Posted By TimB4 on 07/22/2015 1:02 AM
For those who are interested:


Piercing the Corporate Veil: When LLCs and Corporations May be at Risk from Nolo.com

The Three Justifications for Piercing the Corporate Veil from Harvard Law School Forum

Piercing the Corporate Veil from uslegal.com





Thanks!

Walt
WalterM3
(Georgia)

Posts:371


07/22/2015 4:49 AM  
Posted By BobD4 on 07/21/2015 11:07 PM
Tough though it is for any DIY self represented litigant to win against professional counsel, it can be murderously tough to persuade a judge to "pierce the corporate veil" of a condo corporation.

Dissenters like Walter may have no idea how tough, nor how much toxic retaliation may later arrive after other owners discover the shortfall between what it cost to defend and what the corporation might be awarded and may partially collect if it beats the dissenter.

"Piercing the veil" is asking a judge to open the floodgates. It is asking to delve into murky politics to find Director(s) pursuing significant personal benefits ( or divurgent interests )in flagrant conflict with the condo corporation's interests. The remedy is otherwise legislated left to the electoral process, not to the congested court system.

If the "Walters" want to hit individual Directors they may need to look at overwhelmingly strong evidence of divurgent acts that their particular jurisdiction might have censured personally in the past.

In the last decade our jurisdiction has censured a condo President who secretly sued his condo corporation and let default judgement occur without knowledge of other Board members. It failed to remove a Director caught on tape physically attacking geriatric owners. It imposed large personal penalties selectively and personally on condo Directors ruled in contempt of court.

It recently stripped a President of corporate protection ( after his being named a co-defendant with separate counsel of his own ) for engineering a form of voodoo grand-fathering into a Rule. Although the Rule was legitimately adopted, the "voodoo" was ruled sufficient and personally attributable to deliberately negate the effects of single family Declaration restrictions against his & other dorm style commercial lodging ( http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18187&catid=9 )

The 'Walters' need to ask beforehand if they have the skillsets, bucks, tough skin and really big evidence. Maybe this one did not (enough).







I did what I needed to do and I will continue to pressure and expose corrupt and feckless Board members.

Walt
BobD4
(up north)

Posts:956


07/22/2015 6:40 AM  
TimB4s articles above are well worth reading.

At the end of the day do the balance of burdens & benefits (of trying to use such legal remedies) make the consequences worth it all afterwards ?

Great that Walter is satisfied with fighting the good fight. Some condo dissenters - win or lose - face such a toxic aftermath that they move within a couple of years. Others may be carried on people's shoulders into the same process that may have corrupted former Boards.

Within the ADR alternate dispute resolution universe, one type of endless challenge may be hardwired into everyone to some extent, including lawyers and dispute resolvers. "Confirmation bias" or my-side bias tends to muffle the challenge of contrary arguments or risks of failure.

Not always easy to see when people make their minds up and selectively / subtly censor out strong contrary indicators. Can cause havoc when trying to bring disputants onto the same page; may require slow painstaking probing step by tiny step to get the parties by (if ever).

There have even been psychological experiments purporting to show it is hardwired eg Confirmation Bias and the Wason Rule Discovery Test Sep 4/10 https://explorable.com/confirmation-bias ( did these suffer from the same phenomenon too ? )

A problem for sole dissenters (or small dissent groups) may be that such MAY NOT have a challenge function warning that they are a David challenging a Goliath.

Best of luck to the Walters of the condo/HOA universe.
BobD4
(up north)

Posts:956


07/22/2015 6:55 AM  
Should have added :

How does the Confirmation Bias theory explain people nominally throwing the door open to comments ? Appearing to ask friends ? Maybe posting here ?

One possible explanation brought forward has been that the afflicted questioners or topic posters may be consciously or unconsciously weighing up the costs of being wrong, rather than investigating in a neutral, scientific way. They also may just be looking for tools or arguments to make. This isn't necessarily Walter.
BanksS


Posts:0


07/22/2015 8:12 AM  
Posted By BobD4 on 07/22/2015 6:55 AM
Should have added :

How does the Confirmation Bias theory explain people nominally throwing the door open to comments ? Appearing to ask friends ? Maybe posting here ?

One possible explanation brought forward has been that the afflicted questioners or topic posters may be consciously or unconsciously weighing up the costs of being wrong, rather than investigating in a neutral, scientific way. They also may just be looking for tools or arguments to make. This isn't necessarily Walter.



BobD4,

I find Walter's posts fascinating because I have been on the receiving end of an HOA lawsuit. Admittedly when I first came to this site I was quite ignorant of the various complications that can exist in the world of common interest ownership. I have learned a lot from this forum. But I have to be honest with you, I have a hard time understanding some of your posts. You are obviously above my intellect and I really do want to gain more knowledge about HOA topics but are you willing to write your comments down in more simpler terms? Please don't take this as critism because I really want to learn and I believe you have some knowledge to share that will benefit me and perhaps others who come to this site. Thanks.
NpS
(Pennsylvania)

Posts:4216


07/30/2015 12:18 PM  
Posted By WalterM3 on 07/21/2015 5:27 AM
It was dismissed without prejudice.

The HOA attorney told the judge that I had no fiduciary relationship to the individual Board members and that was it. The judge told me I would have to pierce the corporate veil.

She found for the HOA because they had a lawyer. That was the bottom line.


For anyone who wants to know what "Dismissed without Prejudice" actually means - and not Walter's interpretation -

It means that the HOA lawyer informed the judge that Walter's complaint was insufficient as filed - and the judge reached the same conclusion - that's why it was dismissed.

The dismissal "without prejudice" merely means that the judge left the door open for Walter to fix the problems with his complaint and file again. If the dismissal had been "with prejudice," Walter would not have been give the opportunity to make corrections and refile.

The judge didn't find for the HOA because they had a lawyer as Walter claims - She found for the HOA because Walter's complaint was insufficient.

So in the end, Walter couldn't even create a complaint that a judge would hear. What a waste of everyone's time and energy and money.

Sikubali jukumu. Read all posts at your own risk.
BobD4
(up north)

Posts:956


07/30/2015 4:15 PM  
"So in the end, Walter couldn't even create a complaint that a judge would hear. What a waste of everyone's time and energy and money."

Respectfully I gotta disagree. Dismissal without prejudice is merely an adjudicated outcome that someone's beef had not been presented adequately to avoid a summary dismissal upfront. But that beef conceivably could have some merits worthy of future re-filings.

If beefer presents again it will simply not be barred outright as an attempt to re-litigate/multiple litigation abuse/ vexatious relitigation of same factuals. Parts of that beef may (or may not ) be valid or worth presenting if done in a credible process-compliant manner.

Anyone thinking of SRL self-repesented litigation (pro se ) needs to do a LOT of reality self-checks.

For the vast majority, is going one-on-one against professionals in a court or tribunal, much different from stepping into a ring against a professional ?

If Walter feels he has fought the good fight, then good. Many pass up other quieter cheaper solutions like ADR alternative dispute resolution. Sometimes the only other solutions are - as some others have said here - to persuade others onside or to just get out.

Like almost every topic at this site there has been something to learn.
NpS
(Pennsylvania)

Posts:4216


07/31/2015 2:36 AM  
Posted By BobD4 on 07/30/2015 4:15 PM
"So in the end, Walter couldn't even create a complaint that a judge would hear. What a waste of everyone's time and energy and money."

Respectfully I gotta disagree.

OK.

Posted By BobD4 on 07/30/2015 4:15 PM
Dismissal without prejudice is merely an adjudicated outcome that someone's beef had not been presented adequately to avoid a summary dismissal upfront. But that beef conceivably could have some merits worthy of future re-filings.

That's what I said in the part you didn't quote.

Posted By BobD4 on 07/30/2015 4:15 PM
If beefer presents again it will simply not be barred outright as an attempt to re-litigate/multiple litigation abuse/ vexatious relitigation of same factuals. Parts of that beef may (or may not ) be valid or worth presenting if done in a credible process-compliant manner.

That's also what I said in the part you didn't quote.


Posted By BobD4 on 07/30/2015 4:15 PM
Anyone thinking of SRL self-repesented litigation (pro se ) needs to do a LOT of reality self-checks.

Walter was offered a lot of guidance on this point by many on this forum, but never seemed to capture the spirit of what was being said to him. He had a single minded objective that going throught through the courts would vindicate his position originally, but later seems to have said that by not being dismissed with prejudice, that was enough vindication for him. IMO, there was no vindication. Of course, he could refile his complaint so that it is sufficient in the eyes of the judge, but from what Walter has said, I doubt he is going to follow that path.

Posted By BobD4 on 07/30/2015 4:15 PM
For the vast majority, is going one-on-one against professionals in a court or tribunal, much different from stepping into a ring against a professional ?

Here, you and I agree. When judges are faced with a lawyer going against a non-lawyer, they usually try to balance the playing field by shielding the non-lawyer a bit - but not so much as to ignore procedural and substantive rules.

Posted By BobD4 on 07/30/2015 4:15 PM
If Walter feels he has fought the good fight, then good.

Here we disagree. If the members of Walter's community feel that Walter fought the good fight, then good. As far as Walter is concerned, he was asked many times to provide the language from the other side and refused every time. Throughout, he has only been willing to share his own viewpoint. So who knows what Walter's community thinks about the expense and distraction this lawsuit has created.

Posted By BobD4 on 07/30/2015 4:15 PM
Many pass up other quieter cheaper solutions like ADR alternative dispute resolution.

Not sure if you are recommending ADR or not. If offered, I don't think Walter would have accepted it. At this point, there's no reason for the HOA to consider it unless Walter refiles a more adequate complaint with the court.

Posted By BobD4 on 07/30/2015 4:15 PM
Sometimes the only other solutions are - as some others have said here - to persuade others onside or to just get out.

Agree.


Posted By BobD4 on 07/30/2015 4:15 PM
Like almost every topic at this site there has been something to learn.

Agree, but in Walter's case, I think was hellbent on making noise in his community and he is hellbent on making noise now. The few facts we have clarity on are that: (1) Walter was so antagonistic toward a board member that she sued him for defamation; (2) the board made some expenditures with a lawyer without prior adoption in the association minutes; and (3) the board did not share the contents of their discussions with the lawyer with Walter - who was probably the topic of those discussions.

Nothing in Walter's thread suggests that he is doing this for the benefit of the community. In fact, he has admitted that it's his own vendetta that he is fighting. And that's the part I find wasteful. Why should everyone else in the community share the financial burden just because Walter had a personal gripe. Sure he has his supporters, but so does everyone. If he has enough support, he can make the changes - and if that's what he intends to do - I support that pathway. If he's going to refile a sufficient complaint with the court, then I support that as well. But if it's just about personal payback and claiming victory because the judge didn't dismiss his case "with prejudice", then shame on Walter. He has learned nothing that truly matters.

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

Posts:371


07/31/2015 3:16 AM  

Apparently just filing on these Board members did have a good effect on target. I have been told that by a couple of people in the neighborhood.

And a dismissal without prejudice does leave the door open to refile on a different basis. There is no question that the Board expended money without creating a record of that expenditure, which is what the law requires. They arrogantly and ignorantly ignored the Bylaws and the underlying statutes.


This week I demanded by letter all the invoices of what was paid the HOA attorney from May 1 through August 1. I also demanded a copy of the insurance policy or policies that indemnify the Board members. It may be that the deductible on that policy was higher than what was paid to fight the suit. Since the attorney wrote four answers, one for each defendant and a Motion to dismiss as well as attending the actual hearing, I am ball parking that lay out at over $5,000.00 to defend a suite asking for damages of $1,140.00 or $285.00 per defendant.



The letter reads in part:

"Pursuant to Article IX, Section 9 of the ... Homeowners Association Inc. Bylaws, I request and require access to certain records of the Association. Specifically I want provided for my inspection and copying:

All invoices or other documents showing what was paid to the Association attorney during the period 1 May 2015 through 1 August 2015. I am requiring this under O.C.G.A. § 14-3-1602 paragraph (8)(c)(2):

“Accounting records of the corporation.”

Additionally I want provided for my inspection and copying the insurance policy or policies that execute this statement from the Charleston Bay Covenants: “Indemnification. The Association shall indemnify every officer and director against any and all expenses, including counsel fees, imposed upon or reasonably incurred by any officer or director in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer or director.”

I want these records so that I may have a better understanding of the Board of Directors activities during this period.

... Homeowners Association Inc. Bylaws Article IX, Section 9 reads:

Section 9. Inspection of Books and Accounts. All Members of the Association and all holders, insurers or guarantors of First Mortgages shall, upon written request and pursuant to O.C.G.A. § 14-3-1602, be entitled to inspect current copies of the Articles of Incorporation, the Declaration, these By-Laws, the Rules and Regulations of the Association and all books and records of the Association during normal business hours at the office of the Association or other place designated reasonably by the Board of Directors as the depository of such items. Copies of the Articles of Incorporation, the By-Laws and all amendments thereto, shall be furnished to any Owner upon request and upon payment of a reasonable charge therefor.
Please arrange for this inspection and copying during the week of August 10-14."


Walt

LarryB13
(Arizona)

Posts:4099


07/31/2015 4:34 AM  
Posted By WalterM3 on 07/31/2015 3:16 AM
This week I demanded by letter all the invoices of what was paid the HOA attorney from May 1 through August 1. I also demanded a copy of the insurance policy or policies that indemnify the Board members. It may be that the deductible on that policy was higher than what was paid to fight the suit. Since the attorney wrote four answers, one for each defendant and a Motion to dismiss as well as attending the actual hearing, I am ball parking that lay out at over $5,000.00 to defend a suite asking for damages of $1,140.00 or $285.00 per defendant.


If the association filed a claim against their insurance, then they paid zero to the attorney. The attorney fees would all be paid by the insurance company and you have no legal right to that information. The best you will get is how much of the deductible the insurance company required the association to pay.

Yes, if you sue a corporation for a piddling amount of money they will rack up a big legal bill defending against the lawsuit. They have no requirement to pay the damages claimed in a frivolous lawsuit. Congratulations on putting your association a bit deeper into the hole by forcing them to pay their deductible now and higher insurance rates in the future. This is a direct result of your arrogant refusal to comply with state law.
WalterM3
(Georgia)

Posts:371


07/31/2015 5:06 AM  
Posted By LarryB13 on 07/31/2015 4:34 AM
Posted By WalterM3 on 07/31/2015 3:16 AM
This week I demanded by letter all the invoices of what was paid the HOA attorney from May 1 through August 1. I also demanded a copy of the insurance policy or policies that indemnify the Board members. It may be that the deductible on that policy was higher than what was paid to fight the suit. Since the attorney wrote four answers, one for each defendant and a Motion to dismiss as well as attending the actual hearing, I am ball parking that lay out at over $5,000.00 to defend a suite asking for damages of $1,140.00 or $285.00 per defendant.


If the association filed a claim against their insurance, then they paid zero to the attorney. The attorney fees would all be paid by the insurance company and you have no legal right to that information. The best you will get is how much of the deductible the insurance company required the association to pay.

Yes, if you sue a corporation for a piddling amount of money they will rack up a big legal bill defending against the lawsuit. They have no requirement to pay the damages claimed in a frivolous lawsuit. Congratulations on putting your association a bit deeper into the hole by forcing them to pay their deductible now and higher insurance rates in the future. This is a direct result of your arrogant refusal to comply with state law.




Oh, I dunno.

I filed in the Magistrate Court where the Georgia Civil Practice Act does not necessarily apply.

I guess the judge disagrees with you because the case was dismissed without prejudice.

What I keep seeing on this interminable thread (that I didn't reopen) is several people who adamantly keep telling me that there is -no- recourse to the members when HOA Boards act corruptly.

I'd guess that being immune to corrective action suits them personally for some reason.

Also, if the amount of money paid to the attorney didn't meet the deductible, then the HOA has to pay the attorney, right?

Walt

WalterM3
(Georgia)

Posts:371


07/31/2015 5:14 AM  
"They have no requirement to pay the damages claimed in a frivolous lawsuit."

The court decides that.

Walt
BobD4
(up north)

Posts:956


07/31/2015 6:44 AM  
NPS (Pennsylvania) :

" . . Not sure if you are recommending ADR or not. If offered, I don't think Walter would have accepted it. At this point, there's no reason for the HOA to consider it unless Walter refiles a more adequate complaint with the court..."

I always recommend that disputants upfront consider ADR if they can bring enough good faith to reach for the quieter / quicker / usually cheaper / often forgotten tool in the HOA/condo toolbox. Why buy a new diesel for your John Deere if some overdue minor tweaking will get things rolling ?

Incredibly lots of HOA / condo disputants - individual or corporations alike - prefer to think otherwise until way too late along the process.

Or they may believe that dissent can be trumped toxically or rules scoffed without long term damage. Part of this is the Big Cheap. Part is imbalance of power.

I had also mentioned the Confirmation Bias that may be hardwired into every one of us. Many questions brought to this site ( and at Canada's leading condo owners site ) are laced with it. This is not necessarily Walter nor his adversaries. A corollary is tolerating higher risks of avoidable failures, even disasters.

But we do not have to be prisoners of Confirmation Bias.

LarryB13
(Arizona)

Posts:4099


07/31/2015 6:49 AM  
Posted By WalterM3 on 07/31/2015 5:06 AM
I filed in the Magistrate Court where the Georgia Civil Practice Act does not necessarily apply.


But that is up to the judge. Since you tried to file a "big-boy" derivative lawsuit against a corporate defendant, the judge decided to apply the formal rules. You should have known going in that the association and its directors would be represented by an attorney. If you had complied with state law in bringing your derivative action you would have been represented, also. The judge has no obligation to dispense with the formal rules like he/she would if this was Buford suing Bubba over a dog-bite.

Even if the court waives the Civil Practice Act, this does not mean anything goes. You would still be required to comply with the state statutes that apply to bringing a derivative action. You not only have not complied with those statutes, you have not even read them and certainly do not understand them.




I guess the judge disagrees with you because the case was dismissed without prejudice.


Oh my God! Are you suggesting that you could refile the same frivolous lawsuit and achieve some other result?

Dismissal means that whatever you filed was defective. Dismissal without prejudice means that you or someone else could file a new (and properly pleaded) lawsuit and litigate the subject matter of your lawsuit if they stated a claim on which relief could be granted. You failed to do that, also.




What I keep seeing on this interminable thread (that I didn't reopen) is several people who adamantly keep telling me that there is -no- recourse to the members when HOA Boards act corruptly.

I'd guess that being immune to corrective action suits them personally for some reason.


There is recourse available if one follows the statutes. You refused to do so in the messianic belief that your cause is so righteous that you and your crusade are above the law.

Personally, I see no "corruption" anywhere except in your pea brain.

WalterM3
(Georgia)

Posts:371


07/31/2015 6:52 AM  
Posted By LarryB13 on 07/31/2015 6:49 AM
Posted By WalterM3 on 07/31/2015 5:06 AM
I filed in the Magistrate Court where the Georgia Civil Practice Act does not necessarily apply.


But that is up to the judge. Since you tried to file a "big-boy" derivative lawsuit against a corporate defendant, the judge decided to apply the formal rules. You should have known going in that the association and its directors would be represented by an attorney. If you had complied with state law in bringing your derivative action you would have been represented, also. The judge has no obligation to dispense with the formal rules like he/she would if this was Buford suing Bubba over a dog-bite.

Even if the court waives the Civil Practice Act, this does not mean anything goes. You would still be required to comply with the state statutes that apply to bringing a derivative action. You not only have not complied with those statutes, you have not even read them and certainly do not understand them.




I guess the judge disagrees with you because the case was dismissed without prejudice.


Oh my God! Are you suggesting that you could refile the same frivolous lawsuit and achieve some other result?

Dismissal means that whatever you filed was defective. Dismissal without prejudice means that you or someone else could file a new (and properly pleaded) lawsuit and litigate the subject matter of your lawsuit if they stated a claim on which relief could be granted. You failed to do that, also.




What I keep seeing on this interminable thread (that I didn't reopen) is several people who adamantly keep telling me that there is -no- recourse to the members when HOA Boards act corruptly.

I'd guess that being immune to corrective action suits them personally for some reason.


There is recourse available if one follows the statutes. You refused to do so in the messianic belief that your cause is so righteous that you and your crusade are above the law.

Personally, I see no "corruption" anywhere except in your pea brain.





A man hears what he wants to hear and disregards the rest.

It was corrupt to ignore the clear requirements of the Bylaws to document the expenditure of the Association's funds. That you do not see that as corrupt is indicative of your attitude towards trying to get a Board to follow the rules.

Walt
MelissaP1
(Alabama)

Posts:10576


07/31/2015 7:29 AM  
The by-laws are the board rules. You can technically change by-laws just by adapting them into the meeting notes. They are NOT part of your property restrictions. They are exclusively for the operations of the HOA. The CC&R's are the actual documents that one must adhere to. They require the ENTIRE HOA membership to vote to change in majority.

I still don't really see your issue any more because it's done and over with. You can't get the money back. Even if you did again it will ONLY go back to the HOA budget from whence it came. No INDIVIDUAL members will see a dime of that money if you were to win. However EVERY INDIVIDUAL is responsible for paying for the HOA lawyer bill defending themselves against your suit. So who really is the winner here? The person who can't even file a lawsuit right costing his association money probably twice over just because they did not follow a process? Really? A process that is subject to change as the BOARD sees fit to run the HOA.

Former HOA President
WalterM3
(Georgia)

Posts:371


07/31/2015 7:40 AM  
Posted By MelissaP1 on 07/31/2015 7:29 AM
The by-laws are the board rules. You can technically change by-laws just by adapting them into the meeting notes. They are NOT part of your property restrictions. They are exclusively for the operations of the HOA. The CC&R's are the actual documents that one must adhere to. They require the ENTIRE HOA membership to vote to change in majority.

I still don't really see your issue any more because it's done and over with. You can't get the money back. Even if you did again it will ONLY go back to the HOA budget from whence it came. No INDIVIDUAL members will see a dime of that money if you were to win. However EVERY INDIVIDUAL is responsible for paying for the HOA lawyer bill defending themselves against your suit. So who really is the winner here? The person who can't even file a lawsuit right costing his association money probably twice over just because they did not follow a process? Really? A process that is subject to change as the BOARD sees fit to run the HOA.




It varies from state to state.

"Section 8. Amendment. These By-Laws shall be amended in accordance with the procedure set forth in this Section. The Board of Directors shall recommend each amendment to the members unless the Board elects, because of a conflict of interest or other special circumstances, to make no recommendation and communicates the basis for its election to the members with the amendment. The By-Laws may thereafter be amended by the affirmative vote, written consent, or any combination of affirmative vote and written consent of members holding two-thirds (2/3) of the votes cast or a majority of the voting power, whichever is less."

Walt


LarryB13
(Arizona)

Posts:4099


07/31/2015 8:07 AM  
Posted By WalterM3 on 07/31/2015 6:52 AM
It was corrupt to ignore the clear requirements of the Bylaws to document the expenditure of the Association's funds. That you do not see that as corrupt is indicative of your attitude towards trying to get a Board to follow the rules.


Having had far more experience in this field than you do, I see the expense for the attorney as not only normal and necessary to the operation of the corporation, but it was also required by your CC&R's. The absolute worst-case argument one could make was that it was sloppy record-keeping. Last time I looked, sloppy record-keeping is not a crime. (The sloppy-bookkeeping argument is based upon an assumption that the facts you reported here are true and you have given us all serious reason to doubt your interpretation of facts.)

Which brings up a question: If spending money for an attorney is "corrupt," then why did you not report this to the local police?

Your failure to file a police report indicates that you yourself do not believe that the board members acted "corruptly" and that your sole purpose in pursuing your frivolous lawsuit is to harass the lawfully elected board members to prevent them from performing the lawful duties of their offices.

I am sure glad that you are not my neighbor.
NpS
(Pennsylvania)

Posts:4216


07/31/2015 8:08 AM  
Posted By BobD4 on 07/31/2015 6:44 AM
NPS (Pennsylvania) :

" . . Not sure if you are recommending ADR or not. If offered, I don't think Walter would have accepted it. At this point, there's no reason for the HOA to consider it unless Walter refiles a more adequate complaint with the court..."

I always recommend that disputants upfront consider ADR if they can bring enough good faith to reach for the quieter / quicker / usually cheaper / often forgotten tool in the HOA/condo toolbox. Why buy a new diesel for your John Deere if some overdue minor tweaking will get things rolling ?

Incredibly lots of HOA / condo disputants - individual or corporations alike - prefer to think otherwise until way too late along the process.

Or they may believe that dissent can be trumped toxically or rules scoffed without long term damage. Part of this is the Big Cheap. Part is imbalance of power.

I had also mentioned the Confirmation Bias that may be hardwired into every one of us. Many questions brought to this site ( and at Canada's leading condo owners site ) are laced with it. This is not necessarily Walter nor his adversaries. A corollary is tolerating higher risks of avoidable failures, even disasters.

But we do not have to be prisoners of Confirmation Bias.

I do believe that you are on point re ADR and Confirmation Bias. Not sure what you mean by Big Cheap. Imbalance of Power IMO exists in almost every relationship I can think of.

Sikubali jukumu. Read all posts at your own risk.
BobD4
(up north)

Posts:956


07/31/2015 9:13 AM  
Melissa P1 Ala

“However EVERY INDIVIDUAL is responsible for paying for the HOA lawyer bill defending themselves against your suit. So who really is the winner here ?”

Salaried judges & lawyers/paralegals etc (able to collect) are winners. Any legal system that dares to directly really make litigant winners genuinely "financially whole", may be a system that removes incentives to make compromises. Compromises de-congest a court system. Winners in ours are lucky to be awarded 60 % or 70 % of legal costs & disbursements. They may never collect all of those either.


NPS Penn :
". . . Not sure what you mean by Big Cheap. Imbalance of Power IMO exists in almost every relationship I can think of. "

The Big Cheap is a notorious 2 edged sword. The patron god of condos in our jurisdiction is believed by some to be an obscure 11th century Icelandic goddess called Thrifa or "grasping" - hence the evolved word "thrifty". Some believe this goddess laid a mojo on shared ownership communities, encouraging underfunded reserves & whacky schemes & shortsighted decisions to save a nickel but spend hundreds ( thousands ? ) of bucks down the road . . .

Imbalance of power : as in : "We the Strong don't have to make deals with you the Weak !".





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