Neighbor sued HOA and emailed the whole HOA with a litigation update

Your neighbor may need to realize that suing their HOA is suing themselves and their neighbors. It is the consequences of their actions. So theme stating that the HOA can't afford their lawsuit means they are also damaging themselves. Something I may point out in an email conversation. Maybe put things in a better perspective.

Paul

He beat the BOD before so maybe they will run and hide this time.

To me the real question is why is the board continuously getting themselves in trouble? It sounds like from what you are saying is that the neighbor is normally right. Considering that he is a known problem, I would think the board would be dotting every i and crossing every t so these issues don't happen.

IMO, you're getting played by the lawyer-owner.

I've dealt with similar issues in the past, but usually with non-lawyer owners.

My thoughts:

1. Don't accept what anyone else tells you about the status of things. If you want to know what's going on, then go to the courthouse, get copies of the legal filings, and read them.
2. It's the job of lawyer A to say that lawyer B did something wrong. Doesn't make it right or wrong. Might not affect the outcome. Lawyer B might have to refile a document to make a correction, but that's not a fatal defect to the case. Happens all the time.
3. Our email list is owned exclusively by the HOA. No one is allowed to use it for anything other than official HOA business. I called a special meeting just on this issue. By mistake, we published our email list, and an angry owner sent her complaints to the people on the list. Unacceptable for several reasons:
- Many people don't want their email addresses published
- If someone is working off an old list, they could send emails to people who had requested to be removed from our list.
- The big one for me - and the reason for the special meeting - the owner was sending emails selectively - excluding those people who she knew had a different opinion.
4. Without knowing what the issue us, you have no basis to judge the BOD's actions.
5. I would be annoyed with the lawyer-owner for not telling you what the underlying issue is. He can grouse all he wants about the things they did wrong, but IMO he's keeping you in the dark about the important stuff.
6. You can have all the credentials in the world, but some slugs are still slugs after all that spit and polish.
7. The BOD member you spoke to was probably instructed by the HOA lawyer not to speak about it - Which is appropriate.

Thanks. Perhaps so; I'll check.

NpS, thanks.

1. Good idea. The court filings are public, so I'll check them.
2. The neighbor uncovered some significant stuff that the board was doing wrong. One of several results was that our annual meeting was rescheduled several times and then cancelled, and the board had to do some major work on records and other paperwork, all because of things that the neighbor found (and emailed to the community).
3. We have a group email list (nobody's email address is published). You just email one address and your email goes to the whole community.
4. Well, the board had to take some significant steps to correct things that the neighbor found, and it keeps getting sued. It's never the plaintiff.
5. People ask the neighbor what his concerns are, and he always says, "My concerns are in the court filings, which are a public record and are available online."
6. True, although the neighbor is clearly smart (he has a PhD in the hard sciences from a top-5 university, plus a similar law degree). I found out who the board's counsel is and the board's counsel has nowhere near those credentials and has only a few years of experience. So the board's counsel is probably outgunned.
7. True.

The neighbor just keeps at it. I haven't seen the board say anything that the neighbor is doing wrong, but there's clearly a dispute. The neighbor kept assaulting the board by email, and the result of each assault would be that the board and its counsel would then announce a retraction of such-and-such a policy, reschedule our annual meeting, etc. And now litigation. And the neighbor now says that won't yield, period. This just needs to stop. The board won't lay out the issues and what the options are to getting this stopped.

To counter-sue takes having a valid claim. The board has never counter-sued and has never stated that it has any claims against the neighbor.

I found the court filings online and they claim that the neighbor was defrauded. They have lots of exhibits, records, etc. attached to them.

I don't think I'd question the ethics of anyone involved here. The neighbor has a good reputation in the community (and a very high-profile job, under the public eye). But I always thought highly of the board members as well.

Thanks, I appreciate your guidance- you're definitely highly knowledgeable.

In this case, (I'm a lawyer as well but not a litigator) there would not be any basis that I know of for the HOA to seek collection of its legal fees, and so I don't think that the HOA could sue for recovery of legal fees.

I don't see why the board has let this litigation go on for so long; maybe the neighbor is super-demanding but whatever the reason, this lawsuit nonsense needs to stop.

I mention the legal fees collection because in some cases those can be considered "damages". It's why one can get paid back for filing a lien. A lien is made up of the legal fees to file, amount owed, and interest (Late fees negotiable). If you can include legal fees in filing a lien, then why not any other necessary legal consult? I've heard some HOA's even charging members their legal fees if their request incurs them asking the HOA lawyer advice.

Our HOA we never issued fines. Instead we could fix the violation and send the owner the bill for the repairs. If they refused to pay the bill, then we could file a lien for that. The lien would include filing lien and the amount owed. It's in our CC&R's that we can do this. (Thanks to the ex-president con-man pointing this out to rip-off the HOA).

I am simply applying the same concept to this litigation mess. Sometimes need to go a different angle. An angle this person not quite expecting. Sometimes you got to poke the bear back to stop it from coming forward.

Most HOA fights can be resolved just by reading and practicing what the documents have written. If a majority doesn't like them, then they allow you to change them. An effort much more worthy than any lawsuit. IF you put the work in...

Ok, so they are making administrative mistakes, and correcting them after being challenged. Got it. But what's that got to do with the argument between him and the BOD? That doesn't prove anything about the legitimacy of the BOD's position or the lawyer's position on the lawsuit. Until you read the filings, you don't know what's going on. And that's why I think you're getting played.


I could interpret that either way. Maybe your BOD doesn't sue because they don't intentionally spend HOA money when they don't have to.


IMO, not a basis to assess your situation. Reading the filings will tell you what you need to know.


You sound like you're getting bullied. The lawyer is giving your BOD an ultimatum - spend money or cave in - and then he's digging at you that they shouldn't be spending your money. But he hasn't answered the question - Why is he right and the BOD wrong about the issue that the lawsuit is about.

The thing that annoys me the most about your lawyer-owner is that he's setting a tone - Why would anyone want to be on the BOD if this guy can sit on the sidelines and attack you with his heavier guns. I've had a couple of lawyers live in my HOA. Both were convinced that they were smarter than anyone else - Both had all kinds of things to point out about what we were doing wrong. But when I approached both to sit in on HOA discussions, neither one had the time. My attitude is - If you're not willing to sit in when invited, and you only identify defects so that you can gain leverage against the BOD, we don't need you digging at our heels. How many people in your HOA won't be willing to run for your BOD after this incident? Very unfortunate.

I wonder what the dispute is about.

NpS and AugustinD, thanks!

I now have read the filings. The neighbor's issues weren't administrative mistakes- he claims that they're material issues. And in his emails to the community, he says that he has asked to discuss these issues with the board but that the board has rejected his requests. He claims to have been harassed by the board.

I'd like to see the board's side of this, but above all, I'd just like this to end.

In your HOAs, have neighbors come together and gotten both sides to just sit down and work this type of thing out?

Thanks. I like the current board. I have no issues with them. I don't know why they would let something like this go on for so long. They're totally silent on what's happening, and I wish that the board would communicate about it.

Sheila, thanks. The court filings claim fraud, among other things. I don't know if that's true, or the full story, but that's the claim.

NpS, thanks. The HOA's response was legalease about why most of the neighbor's complaints should be dismissed. But the HOA's response didn't contest the fraud claim. (Of the various causes of action in the neighbor's complaint, the HOA's response addressed almost all of them, one by one, but skipped over the fraud claim and did not address it.) The HOA did not counterclaim for anything.

Thanks. So regardless of who's at fault, we have a long-standing dispute between a board and a neighbor who says that he won't back down.

When this happens in other communities, how do people get this stopped?

It doesn't have to.
In most jurisdictions, the elements of a fraud are (1) a false representation; (2) about a material fact; (3) made with knowledge of its untruth; (4) with intent to deceive; and (5) defendant relied on the representation.
The complaining lawyer has the burden to prove all 5 elements. If he can only prove 4, his fraud claim fails. The HOA doesn't have to deny fraud at this stage. All they have to do is deny some portion of the elements that make up fraud.

In short, you don't know the significance of what you're reading and you are scared. Understandable.

Yet, I go back to my original impression - I think you're getting played.

Fraud is tough to prove - especially on item 4. It's one thing that your BOD members did things wrong - After all they're volunteers doing the best they can - It's quite another thing that they intended to deceive anyone. Think about it. Do you really think that's true about your BOD members. If you do, then get rid of them as soon as you can. But if not - if you're willing to accept the possibility that they just made dumb mistakes, then it's that much harder to accept the idea that your BOD acted fraudulently. In other words, Fraud looks like a BS claim that will probably fail.

When information regarding a lawsuit gets out into the open there's really no way to contain it. It's all public inforamation anyway for the most part.

On the other hand, at least in Florida, one of the exceptions to "board secrecy" is attorney-client privilege. The board can stay mum about any legal action or strategy covered by attorney-client privilege. That may be why they're reluctant to share. While it's codified in Florida, other places, regardless, probably don't want to waive that privilege because then they'd potentially be on the hook and forced to disclose much more than they want or otherwise have to.

The court filings are online, but they have to be paid for to be downloaded.

The allegations are all things in the past by the old board. I don’t want litigation because who knows what it could escalate to be.

The issues NpS raises re fraud recently got on my radar. A friend of mine just completed a trial where the main claim was fraud. The several attorneys he used indicated that, when the law gets down to the nuts and bolts, fraud is hard to prove. Lawsuits alleging fraud rarely win.

Regarding Melissa's claim that a HOA can countersue for just about anything: In my layperson's experience, she is not far off. In New York (and many other states), and when the plaintiff's claims appear to be nonsense, a countersuit for "malicious abuse of process" is common. Said claim is essentially a claim of a frivolous lawsuit. For fun: In New York, the elements of a malicious abuse of process claim are that the plaintiff: (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.

In the HOA litigation I have personally witnessed, the member who brought suit or threatened suit always had some truly valid reasons for doing so, even if the member did not prevail on the main claims. While the plaintiffs may not have prevailed, the suit brought good change to the HOA. Granted at great expense. E.g. even with the pro se crank who sued one HOA to which I belonged, the Bylaws were updated within a couple years. This was because at one point in an early motion hearing, the pro se crank objected to the Bylaws, rattling off angrily a number of actual inaccuracies in them. The judge looked at the HOA's insurer-provided attorney and snarled something like, "Is the HOA going to update the Bylaws?" The HOA's attorney responded obsequiously, 'Yes, your Honor. I believe this is in progress.' It was not in progress, but this exchange nonetheless jump-started the Board to get started on updating the Bylaws. The HOA had over 1500 members, so getting approval was not easy but did happen within a few years.

As NpS wrote, court-ordered mediation is common, assuming both parties agree to it. I am not sure what the rules are in New York for this. But for Paul, the HOA Members can certainly lobby for this.

My opinion is.......probably time to replace everyone.

Want more lawsuits? Keep everything the same.
Want to make this current lawsuit go away? Replace everyone.

I get it, people are volunteers and dont know any better. But these people hold a lot of power. Power over your wallet, your hoa reserves, etc. When these people (with power) who dont know what they are doing dig their heels in the ground and a lawsuit is the result, they need to go.

I went back and read the OP's first post again.

Lawyer convinced the neighborhood to replace Board #1. One year later, Lawyer is going after Board #2. Same thug tactics. How is it that Board #2 (who must still be getting their feet wet after just one year in office) - the people who bought into the need for getting rid of the bad guys - have become the new bad guys and can't seem to achieve perfection yet in the eyes of Lawyer?

We still don't know what the underlying issue is. What we do know is that Lawyer didn't step up. And he likes flexing his muscles. To what end I ask? I'll bet that BOD #2 is spending a good 40% of their time chasing the deficiencies that Lawyer identifies and worrying about spending money on the HOA lawyer. They're probably running a bit scared and wondering why they took this on. What does that mean for the community? Is any progress being made on things that Lawyer isn't pushing? Since when should a non-BOD member be allowed to set the agenda and dominate the messaging?

I chuckled when I read Lawyer's claim that HOA hadn't included some mysterious information in government filings (that OP still isn't sure of). What was it? Maybe the fact that they stole all the reserve funds and didn't disclose it? Or maybe it had something to do with not paying $25 and filling out the forms to renew the Corporate charter. We don't know. Should anyone make a distinction between stealing money and not knowing that a filing should have been made? Nah. Lawyer has identified a deficiency, and it's costing money, so that's all that matters. Why, on this second time around, is the same heavy-handed tactic so successful? I don't get it.

My perspective is biased by the fact that I live in a community of less than 100 homes. I don't know where we'd get a Board #2, let alone a Board #3. I'm not in love with the folks I have now, with all their limitations and inadequacies, but at least they're standing up. I can't tell you how many times I've had to convince people not to quit. Maybe it's different in a large HOA, but getting bodies to stay on the BOD is rough in a small community like mine.

In my state, we have to disclose any litigation before a house gets sold. Wow. I would hate to think about the effect of a lawsuit on the sale price of our houses. But Lawyer, who in my mind should know better, doesn't give a crap about things like that. He doesn't care about the effect of what he's doing on the value of the homes in OP's neighborhood. And I can see Lawyer doing it again when Board #2 quits and Board #3 steps up. Shame on him.

Amen. Given that he is going to damage property values, damage the HOA's finances, and eventually make it impossible to fill the board seats, I'd be really tempted to simply convince enough homeowners to take the HOA into receivership, and let Mr. Bully try to do an end run around the court-appointed receiver. Sadly, I can't think of any other (legal) solution to this. Maybe file a complaint with the bar association? Weak, I know...

Paul is this the lawyer and your community?

http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/262100/Default.aspx

If the HOA counsel did not show up to the court hearing that means the insurance has not been notified or appointed counsel, right? So the board hasn’t tendered the lawsuit in an official vote. Also kind of means the HOA counsel is making some money off of this, it maybe good to contact the insurance and see what is going on, insurances rarely let the HOA counsel represent the HOA because they are usually involved in what caused the lawsuit in the first place.

Still like to know what the management company is doing.

Paul, is this the lawyer in your community?