Summary judgement

Started by GeenaS1 • 7 replies • 454 views

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GeenaS1
Posts: 53

Posted:

I was approached by a few neighbors asking if I want to join in on obtaining a summary or declaratory judgement against our hoa.
Several of us do not believe the hoa to be set up or operating legally and the situation is just getting worse. Same with the restrictive covenants. They exist but they don’t apply to us. This hoa was set up long after the development period was over and not by anyone with any authority.
I want to join but I’m honestly fearful of the backlash. Do any of you have any experience with this type lawsuit?

TimB4 (Tennessee)
Posts: 21,062

Posted:

If you join them, you will be responsible for your share of the legal expenses.

You will likely benefit from the action without joining.

TimB4 (Tennessee)
Posts: 21,062

Posted:

No direct experience.

Per lexis nexis, summary judgement is simply a ruling based on the facts providing the facts are not in dispute.

Keep in mind that there is a difference in an Association existing and an Association being active.

An HOA exists simply by filing deed restrictions.
Therefore, if the deed restrictions were on your property at the time of your purchase and the restrictions specify an HOA, paying of assessments, etc. then an Association exists and applies to you.

If the deed restrictions don't exist on your property or they were filed after you purchased, then, you likely are not part of the Association.
However, I would have a title company or attorney (perhaps both) verify everything.

GeenaS1
Posts: 53

Posted:

Quote:

Posted By TimB4 on 02/26/2021 2:53 AM
No direct experience.

Per lexis nexis, summary judgement is simply a ruling based on the facts providing the facts are not in dispute.

Keep in mind that there is a difference in an Association existing and an Association being active.

An HOA exists simply by filing deed restrictions.
Therefore, if the deed restrictions were on your property at the time of your purchase and the restrictions specify an HOA, paying of assessments, etc. then an Association exists and applies to you.

If the deed restrictions don't exist on your property or they were filed after you purchased, then, you likely are not part of the Association.
However, I would have a title company or attorney (perhaps both) verify everything.

According to the Texas attorney handling this, that’s not correct. There are legal steps that had to have been taken by the developer in order to establish a mandatory hoa and that never occurred.
Thank you for your input, I think I’m going to stay out of the mess and see how things unfold.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Summary judgment is not some special type of lawsuit.

As Tim says, summary judgment is a procedure ... a procedure that either or both sides in a lawsuit can request.

But you don't go to court and ask for summary judgment. You file an ordinary lawsuit. The parties you sue file their answer. Maybe some more filings depending on what's going on. And then, you have an opportunity to request summary judgment in yet another filing. And the other side gets to oppose your summary judgment filing.

You only get summary judgment from the judge if, (and this is the important part) assuming that the facts are exactly as described by the other side, you still win based on the law.

In other words, if the other side claims that the facts you relied on are not true, then you aren't going to get summary judgment. Those disputed facts are typically resolved via a trial.

Summary judgment is a means to avoid the trial, but it's only available if the underlying facts and evidence are not disputed. I question whether your association is going to just roll over and accept the facts as you present them. Then again, it's a lawsuit, and you can never tell what's going to happen.

Sikubali jukumu. Read all posts at your own risk.

GeenaS1
Posts: 53

Posted:

Quote:

Posted By NpS on 02/26/2021 10:55 AM
Summary judgment is not some special type of lawsuit.

As Tim says, summary judgment is a procedure ... a procedure that either or both sides in a lawsuit can request.

But you don't go to court and ask for summary judgment. You file an ordinary lawsuit. The parties you sue file their answer. Maybe some more filings depending on what's going on. And then, you have an opportunity to request summary judgment in yet another filing. And the other side gets to oppose your summary judgment filing.

You only get summary judgment from the judge if, (and this is the important part) assuming that the facts are exactly as described by the other side, you still win based on the law.

In other words, if the other side claims that the facts you relied on are not true, then you aren't going to get summary judgment. Those disputed facts are typically resolved via a trial.

Summary judgment is a means to avoid the trial, but it's only available if the underlying facts and evidence are not disputed. I question whether your association is going to just roll over and accept the facts as you present them. Then again, it's a lawsuit, and you can never tell what's going to happen.

That’s not how it was presented to me but I know for a fact that there is a lot in dispute.

GeenaS1
Posts: 53

Posted:

Not sure if there is a difference but it’s a declaratory judgement that they are planning on pursuing.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Source of Summary Judgment is your state's Rules of Civil Procedure (established by the courts).
Source of Declaratory Judgment is your state's Declaratory Judgment Act (established by the legislature).
If you google declaratory judgment act texas, you can find it. Short read.

Is there a real difference between SJ and DJ? Depends on how judges on Texas courts deal with these things, and how the courts themselves require the filings to be structured.

In either case, if there is significant dispute among the parties on the details of actions taken to initiate the HOA, then it's likely that you'll be going to trial.

Good luck.

Sikubali jukumu. Read all posts at your own risk.

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