Lawsuit update

LillyH1, sounds like you have the HOA very much on the ropes. Rightly so, per the unlawful fining you say was going on in this thread: https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/311835/view/topic/Default.aspx

In the other thread, you noted that your attorney cited the following:


I recommend the plaintiffs at least try to settle. The judge will expect a reasonable effort to be made to do so, and it goes against the plaintiffs if they do not give it a try. Same for defendants. As I think you may already understand.

I do not see any real "damages" coming out of this. "Damages" being a dollar-quantifiable amount that shows the harm you plaintiffs have been done. "Damages" is a huge topic in lawsuits.

What I do see is that you plaintiffs may be well-positioned to ask, in a settlement, for the HOA to pay half or all of your attorney fees for the lawsuit. This is because of the statute section your attorney cited. If the number is not too high, the HOA (or its insurer?) may pay it.

Do you know if the HOA insurer is paying for an attorney for the HOA?

Thanks for the update. Just remember that prolonging a solution puts money in the attorney's pockets. HOA dues will increase for everyone to pay the HOA attorney or to fulfill a judgement.

A settlement stops the $ bleeding on both ends. Perhaps reimburse owner's for the fines and expenses they incurred, plus a stipend for time and aggravation and call it a win!

New board members and MC's will also know that owner's concerns can not be ignored.

Thanks for the reply. We were never seeking damages other than a return of the ill gotten fines but we will definitely be getting 100% of the attorney’s fees. I suspect the insurance company will be paying but I’m not sure. Because it’s so completely one sided, the only real question is whether to pursue an agreed judgement which would include injunctions preventing the HOA from doing this in future or just settle.

As part of the settlement talks, how do you know the HOA will definitely offer your group all of its attorney fees for the lawsuit? Does your attorney say the HOA will definitely offer your group all its attorney fees?

Per the law on attorney's fees, the plaintiffs are not ordinarily entitled to pre-litigation attorney fees. For example, if your group's attorney wrote a number of demand letters before filing suit in court, the cost of those demand letters will have to be borne by your group.

As much as you may think this is a slam dunk and the judge will rule in your group's favor, I say never gamble on what a trial court judge will rule. Trial court judges are not the sharpest blades in the drawer.

Also note that, if the new board is no longer issuing fines, arguably the bulk of your lawsuit is now moot. The HOA attorney might very well get the case dismissed on this alone.

As far as I am concerned: Your group needs to consider all the possibilities here. As well your group needs to ask your group's attorney for all the possibilities he/she envisions. Review all with your group's attorney.

You should also consider that any reports of your HOA being involved in a lawsuit or has been can effect your loan/refinance options. There is a 25 question HUD form the HOA fills out for certain loan programs like FHA (other federally backed loans). One of those questions is if your HOA is involved in a lawsuit situation. If your HOA is going to pursue this, then has to be reported. That means that FHA may no longer offer their type loans. If so, they may go at a higher rate. Refinancing rate also is efffected.

So that is something to factor in with this decision. A lawsuit, renter ratios, large # of liens/foreclosures, and collection rates all factor into the bank's decision of offering their loan products.

You’re right. The only real difference is that if the rules are thrown out via settlement then another board a year or two from now could undo what was agreed to in the settlement. A judgement would include injunctions preventing them doing so. The lawyer advises a judgement but says it’s up to us. He’s not the kind of attorney who would advise one just to get more legal fees but going that route would make more money for all the lawyers. Our group is probably going to settle.

It’s amazing how hard it is to get a small group of people who are on the same (winning) side of a lawsuit to agree on anything.

I see your attorney advises a judgment from the court. Your attorney must have a good reason for this advice. As I post often, there's a reason competent attorneys graduate from law school; pass the bar; and have experience. Some random commentary from me, a non-attorney:

I believe a settlement would be an agreement between the corporation and your group of plaintiffs. I do not see how a change in the makeup of the Board undoes the terms of the agreement.

Second, it seems to me a Board determined to set whatever rules it wants would ignore both a Judge's order and a settlement agreement, using whatever loopholes the Board could find.

I guess remedying defiance of a judge's order (a.k.a. an injunction) might be somewhat easier to enforce, since the Judge wrote it (or at least put her/his name at the bottom). Typically the two sides' attorneys hammer out what the order will say in advance, then present it to the judge for approval and signing. It saves the court system time and money. This long-established procedure (the two sides agree on what the judge's order will say and then present it to the judge) is probably more efficient for a few reasons.

I kind of think it's five will get you ten. But more importantly:Yes, it is.

Thank you for the update.

I am glad you are stopping this outrageous violation of the covenants (fining without authority) and the law.

BOARD MEMBERS must have some accountability for their breach of fiduciary duties, negligence and failure to enforce covenants. Even if the settlement comes from the Insurance policy which has coverage for these types of issues to be paid out. At least ours does

jan,,

ahhhhh, your statement reads exactly what I have wanted for way too long of a time.

The reality is, in Texas board members very rarely have any real accountability.

The only accountability that is guaranteed is they can be removed by a vote of the owners.

They likely will likely walk away and never show their faces again. It's so frustrating , but texas doesn't have any department of HOA oversight.

My 2 cents. take your lawyers suggestion, although , I wonder if the lawyer wants to continue to pursue the case because he already knows the association insurance has offered to pay his fees. I'm not saying he is for sure doing this. But hoa litigation almost always ends with insurance companies selling. Even when owners want to go to court. It's just too darn expensive to litigate.

Just in case someone comes across this post with the idea of suing their HOA for whatever reason, I would advise extreme caution and trying everything else first. And if you do have to sue make sure you have a lawyer who’s daily practice is suing HOAs. We were lucky that our case was crystal clear from a legal standpoint and that the opposition collapsed immediately. It was extremely risky and could have easily cost tens of thousands in legal fees. We also had to be prepared to lose at district court and win on appeal, which happens often in TX HOA lawsuits (the HOA lobby is very powerful and judges are elected here). For every one like this you can find 10 examples where an HOA, and their unethical lawyers, bankrupt someone and/or take their home away. The whole system is corrupt and badly broken.

I agree. Sound advice.

1 - ERRATUM : typo & omission above. Should read : " . . ."20 years ago my realtor waved her magic WAND and MAGICALLY over-rode all sorts of activities / property RIGHTS OR LIMITS which the transfer literally could not pass to me nor were enjoyed by the vendor nor prior title holders ! . . . "

2 - Some pro se / S.R.L. self-represented zealots appear to be very intelligent . . . tireless BUT "selective" researchers & often lacking the external detachment to see any larger dynamic. They really might be unable to hear anything screened out by their confirmation bias.

eg ( A ) Elderly British Columbia spouse ACTUALLY LOSES HER HOME after her elderly scofflaw husband filed more than 50 SETS OF LAWSUITS against their ( condo ) association. He did so because the association had converted 'first-come first served' parking to UNIT-ASSIGNED. That meant he no longer had free parking for his collection of cars. ( Courts upheld the conversion's due process ).

The deadly interim Special Assessment : Amidst the legal battles other strata owners become furious with the scofflaw husband XXX after each being hit for $ 3,500 per unit interim legal defence costs. ( In 2014 XXX & wife were physically ejected by the R.C.M.P. as unusually ordered by the court. The ( strata corporation ) lawyer disclosed by then that it had cost $250 K or $7 200 per strata to ultimately shut down & expel XXX AND THE SPOUSE with finality between 2008 and 2015. . . . )

( see : “VISITOR PARKING scofflaws' contempts of court trigger STRATA SALE ORDER Bea v Strata LMS2138” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18024&catid=11#18024 )

eg ( B ) An ADVOCACY LAWYER HERSELF in my own jurisdiction arguably DESTROYED HER PROFESSIONAL CAREER by years of shocking litigation attempted against her condo association.

She eventually would try to submit hundreds of pages of factums/compendiums / books of authorities.

But the merits of her submissions were NEVER HEARD ! Why ?

In a local jurisdiction arguably hostile to condo boat-rockers for decades, the respondent condo association persuaded the judge at first instance that the applicant lawyer triggered a need that she undergo a MENTAL EXAMINATION as to capacity to litigate !

( which she refused )

They also ultimately persuaded a designation of VEXATIOUS LITIGANT be imposed to gag the challenger's future court filings against them without prior judicial approval. ( Arguably a devastating wider career blow ).

What was at stake ? Judge at initial Hearings : “ . . . . . at its core, this is a dispute over the pruning of a tree, the installation of a flowerbox and the width of a parking space . . .”

She had paid & challenged a $ 625 charge-back LIEN to recover the costs to relocate her rogue flowerbox from the common element.

The interim SPECIAL ASSESSMENT : Her condo association imposed a $100 K ( INTERIM ) Special Assessment on all owners just halfway through years of her ATTEMPTED appeals ( up to Ontario's Court of Appeal ). Unpublished are the eventual costs to the association, but the interim Special Assessment would expose her to massive scorn from many owners.

And the Vexatious Litigant designation arguably would likely be devastating to her wider career. And the merits of her beefs never even got heard at the various judicial venues . .

( see : “VEXATIOUS LITIGANT RULING after dispute buries owners in AVALANCHE OF LEGAL COSTS - SENNEK v CCC 116” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18922&catid=9#18922 )

Bob, My apologies. I may have mistaken you for the person you quoted above espousing the virtues of DIY chemotherapy.

No problem at all.

1 - In defending your community's property & civil rights here, you & your co-applicants are arguably the DAVIDs going against what are often arguably the GOLIATHs. That's even though it appears some or all of the finings were abusive, voodoo rubbish flat out without a legal basis.

Some folks ( like the gentleman to whom you appropriately offered some advice at a different topic ) may think they can shingle their own roof. Or remove their own appendix.

But anyone going against a competent, well-prepared professional civil litigator, respectfully oughta also be fully aware that the the adjudicator or judge may have ZERO sympathy for DAVIDs amidst congested courts. May be frustrated. May take it out on the weaker of the litigants. Or incompetent even in jurisdictions like mine where such are not elected.

2 - Even with law degrees DAVIDs may be well advised to hire a professional. The DIY chemotherapy fan ( at that other topic ) screened this out :

Over a period of a decade ending in 2017 a LAWYER & his wife ( in my jurisdiction ) as defendants fought flagrantly unlawful voodoo levies being demanded from a nearby cross-covenanted community.

That nearby community contained an appeal court judge, lawyers, Big Shots. The targetted lawyer happened to be on the Editorial board of Canada's leading national newspaper, but the tormentors couldn't care less.

The defendants retained professional litigators.

But the tormentor group won in 3 out of 5 civil law decisions, fortunately NOT the final one at Ontario's Court of Appeal where fought between 2 of the top civil litigation firms in the country.

The Court of Appeal in 2017 ripped apart the reasoning - and hopefully the career - of the Divisional Court lower appeal jurist. That lower appeal court judge's bizarre & vicious mis-reasoning had contradicted 60 years of Canadian jurisprudence and a further 55 years of Brit jurisprudence both at the peak of the judicial hierarchies.

That's with an absolutely impeccable body of jurisprudence protecting the rights of the defendant lawyer & his wife ! . . .