Homeowner vs HOA board members named listed on document

Started by MarkM19 • 22 replies • 1523 views

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MarkM19 (Texas)
Posts: 1,459

Posted:

Hello Everyone,
I am the board President of a 438 Single Family development. We have 5 HOs that we have been chasing in collection for years. We are suing them and I got the paperwork this morning and I noticed that it said my name verses the 5 HOs. It does mention that I am president and am suing them for the Association. I am not sure that I am comfortable being named on a lawsuit for the association.

Has anyone done this before and it normal operating procedure? I have been on the board for 5 years and this is the first time I have been asked to do something like this.

PitA1
Posts: 222

Posted:

should be The XZY HO Association vs. (names)

somewhere it should give the representative for the plaintiff

some states require 'counsel' for a corp.

MarkM19 (Texas)
Posts: 1,459

Posted:

It does at the top of the suit say XYZ vs HOs but directly to the right of the first page is my name. It also starts I Mark M herby declare as follows.

It also mentions my name 4 time and it does not mention the HOA except at the top of the first page. It also has my name at the bottom were the PM wants me to sign the document.

PitA1
Posts: 222

Posted:

change: {I Mark M hereby declare as follows.}

to: {I, Mark M, acting solely as president of XYZ HOA, hereby declare as follows.}

this is merely my PERSONAL OPINION and NOT legal advice

if you are uncomfortable, check with the corporate attorney

you ARE, in fact, the president and responsible signatory for the HOA

CAVEAT EMPTOR

MarkM19 (Texas)
Posts: 1,459

Posted:

Thanks that sounds like solid advice. I am waiting for our Property Manager to return my call.

RichardP13 (California)
Posts: 1,767

Posted:

Who drafted the legal papers? Are you suing in Small Claims or Superior Court?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Is the Association incorporated?

Typically only legal entities may bring actions before the court. When you Association is incorporated, it becomes a legal entity.

JimR24 (Texas)
Posts: 399

Posted:

Hi - very interesting question...sure do appreciate you bringing this up.

What do u think about calling your own personal attorney about this? Perhaps he/she can give you some advice on how best to handle this. If i were in your shoes, that's likely what i'd do. It'd probably be worth a attorney phone fee to get another opinion to allow you to feel better about this.

Just my $.02 worth....

Lovin' life with my honey!
and, President of HOA in Texas

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Who's name do you think should be there? The HOA is made up of you and your neighbors. You as President represent the HOA as a whole. As the representative you have to sign your name with your designee of President or other board position. There should also be a HOA corporate stamp to seal/stamp official documents. President usually has that.

My opinion is the lawsuit is not the way to go. You should be doing a lien or foreclosure process instead. Lawsuit not strong enough. Plus it sounds like it having your name on it is not a good option. The HOA does have insurance protecting you and the board of personal liability but this could be looked at as personal. Expect a possible counter suit...

If you do not want to sign documents in your name then do not take the job. It is part of the responsibilty. Sorry.

Former HOA President

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

It also mentions my name 4 time and it does not mention the HOA except at the top of the first page. It also has my name at the bottom were the PM wants me to sign the document.

Why are you not talking to the attorney directly? Using the property manager as a middleman between you and an attorney is dumb. Ask the attorney these questions. I see no need for your name to be on the documents, only the HOA.

MarkM19 (Texas)
Posts: 1,459

Posted:

Hi All,
I will try and fill in a few blanks.

We take many different actions including all that were mentioned foreclosure, liens and lawsuits these are small claims suits. I have never seen this type of request in the 5 years that I have been on this board. My first 4 years I was the treasurer. I may have been unaware if our last President had signed similar documentation.

I do not like attorneys and to do not have one that I could call. I do have access to the HOAs attorney but have little confidence in her based on poor decisions that she has provided in the past. This is just my opinion.

Melissa,
I have enjoyed reading your comments over the years but I feel this time that you are a little harsh with your opinion. I will list the reasons why below.

1) You are correct I am the President but we make decisions as a board. I am simply 1 of the 5 votes.
2) If you were able to see this document it looks like I am the only person taking this action.
3) Our Board uses a PM company and takes advice from them on many matters including lawsuits.
4) I do not believe our community has a corporate stamp.
5) What I would like to see is the Board has taken this action. The entire board could sign the document. Why should one person take the heat.
6) With the Internet my name will be searched and it will show that I sued these 5 people. It will be up to anyone who wants to know more to find out that it was not me but the association. People don't investigate that deeply.
7) I volunteered to be on the board to make a difference which I have over the last 5 years. What I do not want is to have it effect me 10 years from now when I am in a different stage of my life.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MarkM19 on 06/17/2014 5:30 PM

I do have access to the HOAs attorney but have little confidence in her based on poor decisions that she has provided in the past. This is just my opinion.

Then the Board should shop for a different attorney. There are plenty out there and you don't have to use the one the MC says to use. The MC works for the Board (just as the attorney should).

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MarkM19 on 06/17/2014 5:30 PM

5) What I would like to see is the Board has taken this action. The entire board could sign the document. Why should one person take the heat.
6) With the Internet my name will be searched and it will show that I sued these 5 people. It will be up to anyone who wants to know more to find out that it was not me but the association. People don't investigate that deeply.

Typically, the duties of the President is to sign all written instruments of the Association. This duty is usually outlined within the Bylaws. Ours says:

(a) The President shall preside at all meetings of the Board of Directors; shall see that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds and other written instruments and promissory notes.

Now, as others have said, the paperwork should identify the plaintiff as HOA, Inc.
You, as President, are simply signing on behalf of the Association.

If the paperwork simply lists you as the plaintiff, and not the Association, send the paperwork back to the attorney (unsigned) and explain that perhaps they didn't understand that the action was being taken by the Association.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By MarkM19 on 06/17/2014 5:30 PM
Hi All,
I will try and fill in a few blanks.

We take many different actions including all that were mentioned foreclosure, liens and lawsuits these are small claims suits. I have never seen this type of request in the 5 years that I have been on this board. My first 4 years I was the treasurer. I may have been unaware if our last President had signed similar documentation.

I do not like attorneys and to do not have one that I could call. I do have access to the HOAs attorney but have little confidence in her based on poor decisions that she has provided in the past. This is just my opinion.

Melissa,
I have enjoyed reading your comments over the years but I feel this time that you are a little harsh with your opinion. I will list the reasons why below.

1) You are correct I am the President but we make decisions as a board. I am simply 1 of the 5 votes.
2) If you were able to see this document it looks like I am the only person taking this action.
3) Our Board uses a PM company and takes advice from them on many matters including lawsuits.
4) I do not believe our community has a corporate stamp.
5) What I would like to see is the Board has taken this action. The entire board could sign the document. Why should one person take the heat.
6) With the Internet my name will be searched and it will show that I sued these 5 people. It will be up to anyone who wants to know more to find out that it was not me but the association. People don't investigate that deeply.
7) I volunteered to be on the board to make a difference which I have over the last 5 years. What I do not want is to have it effect me 10 years from now when I am in a different stage of my life.

Mark

If the 5 you took legal action went to Small Claims you do not put the individuals of the corporation on the SC100 Form. I have done many of these and have appeared numerous times on behalf of the associations I represent. Never have I listed the names of any individuals or officers of the associations, you list only the business names and the address of the office of the PM. With an HOA of that many homes, I have to believe you are a corporation.

Use the site below and tpye in your HOA name to find out. Make sure you click the corporation button.

http://kepler.sos.ca.gov/

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RichardP13 on 06/17/2014 8:45 PM

I have done many of these and have appeared numerous times on behalf of the associations I represent.

Richard,

Are you an attorney? In Arizona a corporation in a small claims court may be represented by an attorney or by an officer of the corporation but not by anyone else. I thought this was pretty much standard in all states.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MarkM19 on 06/17/2014 5:30 PM

Our Board uses a PM company and takes advice from them on many matters including lawsuits.

Why would you take legal advice from a person not qualified to give it? You have a fiduciary duty to act as a prudent person would in a similar situation. You are essentially held to the same standard of conduct as a board member at General Motors. You are breaching your duty by taking legal advice from one who is not authorized to practice law.

Quote:

What I would like to see is the Board has taken this action. The entire board could sign the document. Why should one person take the heat.

In court, one person represents a corporation. That one person may be an officer of the corporation or it may be an attorney. Rules of Civil Procedure do not require the signature of any board member, let alone all of them.

Quote:

With the Internet my name will be searched and it will show that I sued these 5 people. It will be up to anyone who wants to know more to find out that it was not me but the association. People don't investigate that deeply.

This is where my comments above come together. First, you have a civil complaint prepared by a person not legally competent to do so that makes it appear, per your description, that you are the plaintiff. Second, if your association chooses to allow you to represent it in court, your name will crop up somewhere in the searching. You can solve this problem by hiring an attorney to represent the association in court.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By LarryB13 on 06/17/2014 9:12 PM

Posted By RichardP13 on 06/17/2014 8:45 PM

I have done many of these and have appeared numerous times on behalf of the associations I represent.

In California, an attorney can't represent a client unless there is an appeal.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By LarryB13 on 06/17/2014 9:38 PM

Posted By MarkM19 on 06/17/2014 5:30 PM

Our Board uses a PM company and takes advice from them on many matters including lawsuits.

Quote:

What I would like to see is the Board has taken this action. The entire board could sign the document. Why should one person take the heat.

Quote:

The rules in California may be much different than other states. Surprisingly, I happen to know what I am doing. A law degree, unfortunately, is not what it is cracked up to be.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Sorry if this is going to sound harsh again but... Your dislike or untrust of lawyers is your problem. No one likes a lawyer but most do not because they do not understand how to use them. They hate them because they lose or do not get the result they want. Honestly that is BOTH parties fault NOT just the lawyer.

So time to stop being afraid and step it up. You now represent your HOA as a whole and are the one responsible for signing documents. Our US President is part of a congress too but he signs all the bills... Why should you be different?

Sounds like you had bad advice from a PM who does NOT practice law. They pay the lawyers not play lawyer. Stop taking legal advice from them. It is NOT their business. Where my HOA spends money sure but not legal. I stop at having them have a lawyer for us to use.

I have filed paperwork in court before. Should have asked the clerk handing the paperwork how to fill it out if hate lawyers. I would have made sure to have shown my name represents the HOA by signing President of.... If that was possible. A corporation does require an attorney or a member of the HOA to represent itself in court. However, that may also depend on the level of court one is taking it. Anything over small claims I would have a lawyer.

Liens do not always require a lawyer to file. It depends on your county or state. Foreclosures are the last step and recommended an attorney be involved. It usually is fought and one needs proper representation. If you put a lien on, you most likely have to sign it if no lawyer needed.

Former HOA President

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

I do not like attorneys and to do not have one that I could call. I do have access to the HOAs attorney but have little confidence in her based on poor decisions that she has provided in the past. This is just my opinion.

No one likes attorneys. LOL. The issue is if your current attorney is competent or not. Sounds like she is not. You are the president.... and people look to you for leadership. Show some leadership skills by finding a new, competent attorney. There is no cost to do this.

KevinK7 (Florida)
Posts: 1,343

Posted:

It is my understanding that you can sue for anything but it can get tricky with corporations. From personal experience, if you had acted while knowing your actions were contrary to the governing documents and there is proof (minutes where you discuss said action, etc.) then you can be held personally liable and cannot be protected by corporate cover. In a situation like this, where you are personally sued for your actions, you may not be able to use HOA funds or resources to defend you. That is something that needs to be discussed with your attorney.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Remember Steve that may be the problem in a nutshell... Not liking and avoiding lawyers. How does one know they have a good or bad one if they do not trust or like one? My approach to lawyers is simple. They are simply a TOOL. I do not practice law or licensed. So I pay a lawyer to do the legal stuff.

Now it is not that simple and easy as a lawyer who tells me "I will do whatever you tell me to do"... Is a red flag. That means you should do more questions and realize the outcome is your fault. Many here have their lawyers state this to them I am sure...

Educate yourself and read your documents backwards and forward. Most of the time you do not need a lawyer if you know how to apply your documents. It is all in there for the most part. No need to go outside the HOA if understood....

Former HOA President

PitA1
Posts: 222

Posted:

to repeat:

change: {I Mark M hereby declare as follows.}

to: {I, Mark M, acting solely as president of XYZ HOA, hereby declare as follows.}

simple

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