BofDs violating Executive Session laws?

Options, in no particular order:

1.
Demand letters leading potentially to court

2.
Getting a like-minded majority to get on the board with yourself.

Elaboration:
The only "compliance monitor" that Texas has is the courts. In particular, from TPC 209:

Sec. 209.017. JUSTICE COURT JURISDICTION. An owner of property in a subdivision may bring an action for a violation of this chapter against the property owners' association of the subdivision in the justice court of a precinct in which all or part of the subdivision is located.

In Texas "justice court" is the equivalent of "small claims court."

You could start with a like four sentence demand letter light that politely quotes TPC 209.0051 (h). Ask the board whether it intends to continue to disregard TPC 209.0051. Ask for a response by the end of the month. If no response, report back here. You must must leave out emotion and judgment from this letter. If one inserts emotion, judgment, snarkiness, wise-ass-ness, or seemingly verbal cleverness, then one is being verbose and stupid and is less likely to get the desired response. Just the facts. Short and sweet is the rule for effective communications with a corporation.

The courts are backed up and overwhelmed. Judges expect people to formally and repeatedly ask for what they want before filing a lawsuit. Judges' obligation to promote "judicial efficiency" is as much a part of determining who gets justice as anything.

Thanks for the responses - to clarify, I'm NOT contesting whether or not the foreclosure was appropriate - I'm making the point that the BofDs acted illegally by not recording in the published meeting minutes the substance of the discussion during the executive session nor the vote they took regarding the foreclosure action during the executive session. I'm a homeowner - a member of the HOA - I simply wanted to know which BofD members voted not to foreclose.

We recently had a lengthy discussion over this same topic (but the search function seems to give my browser indigestion, so I can't find it).

One of the points of the discussion was the conflict between Texas laws and the need for confidentiality. Holding confidential discussions in open session will void attorney-client privilege, which can harm the association's ability to pursue any legal action under discussion. In addition, foreclosure is nuanced, and to fully discuss it will involve disclosure of much personal information that is none of the neighbors' business and, IMHO, will create liability issues for the association if it is disclosed to the membership.

I think we got to the point where, in order to comply with Texas law and still protect the association from liability and protect its ability to foreclose, the full discussion of confidential stuff would have to take place in executive session, with the vote on proceeding with foreclosure taking place in open session.

Play stupid games, win stupid prizes.

I will also point out that, without understanding the nuance and the confidential details, knowing how individual directors voted will tell you nothing.

As I said, foreclosure is nuanced. It's not a black and white decision - and if a judge is involved that person's biases can also come into play no matter how much they try to avoid this, further complicating an already complicated issue.

My community dealt with two deadbeats. The slam dunk case which we successfully foreclosed on actually owed less money and for a much shorter time period than the homeowner who knows how to play the game (paying occasionally and declaring bankruptcy, among other tactics). To a homeowner who doesn't know the details, this makes no sense and may appear to them that the board isn't doing their job.

I might very well want to know how each director voted as well.

Once a lien is placed on an owner's lot, confidentiality is not possible. As well, judicial foreclosure is going to make the delinquency public record.

TPC 209 is pretty generous to boards when it comes to discussing individual owners. E.g. from TPC 209, boards can convene in exec session for "matters that are to remain confidential by request of the affected parties and agreement of the board."

Taking this section of TPC 209, in theory a board could discuss the names of owners on whom it is considering foreclosing a lien.

In practice, defamation concerns kick in. Nationwide HOA/COA Boards are notorious for getting their facts wrong. It's probably best to keep people's names out of open meeting discussion.

Sounds reasonable to me. (With a nod to the reality that anyone can look up a lien.)

Of course, if a board is playing favorites by not liening some owners' properties that should be liened, and names are not used in open meetings, then one will never know of the favoritism.

All hopefully are doing the best they can to follow all the laws.

The substance of the discussion is where attorney-client privilege and liability issues arise. We discussed enough personal information that members who actually know the person involved can probably guess who it is. And if the delinquent homeowner chooses to sue, then all of the information that was discussed in open session must be made available to that person's attorney.

I can tell you've never served on the board. An association can waste a lot of money pursuing foreclosure in cases where it doesn't make financial sense(*) or they're up against someone who knows how to play the game. A board member who votes for foreclosure in cases like that is doing the association no favors.

* "Financial sense" doesn't just look at how much the person owes the association. It includes things like:

- is there a mortgage, is it current, how much is still owed?

- are property taxes paid?

- is there other debt?

- does the person have a steady source of income, or are they unemployed?

- has the person paid anything in recent years, or have they stopped paying and are not responding to association communications?

- have they declared bankruptcy in the past, can they do so right now?

- what's the housing market like in this area, will an auction be successful or will the association be stuck with a property that it can't unload?

- does the person have any personal issues or characteristics that may give them an angle to use against the association - eg. are they elderly, disabled, in a protected class?

This should give you any idea of why I say foreclosure decisions are nuanced, and why discussing an owner in open session can be a problem. How would you feel if that was you?)

Oops on me. I agree with the following:I hate Minutes that include particulars of the discussion preceding the vote. If one gives this some thought, I think one will realize that the purpose of including such discussion, from a meeting, is to promote gossip, which is so destructive to an organization. Including discussion is also a chance for a mendacious secretary (abetted by a board majority) to editorialize and take potshots at people.

I figure this is why Robert's Rules, for one and in so many words, says Minutes are not to include discussion from the meeting.

Also... you may have a case where it's unlikely that the association will see any money at all out of foreclosure. Do you let the lien ride and hope the person will sell? Or do you go ahead with foreclosure and just stop the bleeding?

There is no right answer to this. That's why knowing how directors voted won't tell you what you think it will.

Will homeowners actually know the name of the person being foreclosed on?! I sure hope not. And if not, then - again - the vote tells you nothing. And the obvious point: if it's a friend, then the director has a conflict of interest and shouldn't be voting at all.

As I said in my first reply, there is a conflict between Texas law and the need to keep certain information confidential, and it's not going to disappear no matter what contortions people get into. Knowing how the board votes tells people nothing unless they also know all of the information that the board based their decisions on. People are still free to form their own opinions, but they should keep in mind that their opinions are based on incomplete information and may be different if they had that missing information.

"discussing an owner in open session can be a problem." I agree that foreclosure discussions are nuanced, and that it takes some thought to avoid disclosing the owner's name - but surely discussing the other particulars of the case to make an informed decision on voting and inclusion in the minutes is possible.

" How would you feel if that was you?" - my FEELINGS or anyone else's don't count - the law is what counts. And I pay my bills, so it wouldn't be me.

Quote:

"And I pay my bills, so it wouldn't be me."

Not picking on anyone in particular, but people should be aware that the most common cause of bankruptcy in the US is medical bills. And many people are one lost job away from becoming deadbeats themselves.

Misfortune can get its claws into anyone, and a history of doing the right thing won't protect you if you're not paying your creditors now.

I get it, when I was on the board our game-playing deadbeat really ticked me off. But people who make the laws should remember that the laws that nail the game-players will also nail the honest and responsible homeowner who is on the verge of bankruptcy because of illness. That person on the verge of bankruptcy could be you.

I can see voting in an Open Meeting to foreclose but be careful in using numbers as they might come back to haunt you. If asked, use general numbers such as over one year of dues with the final amount yet to be worked out.

I for one say you can use the person's name in the discussion, or at least an address, as it is a legal action you are undertaking.

Show us where TX law says "discussions" must be included in the minutes. If the law doesn't say so, there's no "nuance" involved. Per Robert's rules and for reasons Aug listed discussion should NOT be included in meetings minutes. To summarize: Minutes should include what was done (motions, votes) not what was said.

I don't think anyone used the word "slander." There simply is no need to mention the delinquent Owners name in an open minute. It's simple to refer to the account #. Only JohnC says use the name because he believes that "shaming" (his word in the past) delinquents is somehow beneficial for the assn. Why do you want the name reveled, Joseph?

I think everyone agrees here that, of course, the Board should take all steps to collect what the delinquent owes.

Again, Joseph, since this was all done in secret in ex. session, how do you know about it?

You asked "since this was all done in secret in ex. session, how do you know about it?" - long story - without me doing anything illegal or unethical, let's just say that the information came my way - sounds mysterious, but it really wasn't.

And thanks for reiterating the business about DISCUSSIONS not needing to be in the minutes - I'm OK with that, as long as any discussion about the foreclosure and the motions and the votes are done in an open meeting.

I guess if one opposes sunshine laws, one would say the above.

AFAIC, the proposed suit, if needed, is to enforce a sunshine law. It seems to me that enforcement of sunshine laws typically has a much broader effect. Said enforcement may be well worth the cost of the suit.

This assumes the board is stupid enough to dig in and refuse to discuss and vote on the initiation of foreclosure actions at open meetings, as the Texas statute requires.

All right. A win-win-win for all involved!

Seriously though, it appears the cowboys and cowgirls in the Texas legislature added this part to TPC 209 in 2011. Timeline:

2001 = TPC 209 enacted, effective Jan 1, 2002

Amended in 2007, 2009, 2011, 2013, 2015, 2917, 2019 and 2021.

So it's not like the Texas legislature did not have the chance to pare down what must be discussed in Texas HOA's open meetings.

It's not that the personal details should give the person a pass on paying - it's that the personal details may affect the association's ability to collect and may determine what action would be most effective.

For example, if the person is facing high levels of debt in general, then this can make a bankruptcy filing more likely. Does the board want to keep spending legal dollars in this case, especially if HOA debt is pretty much last in line in that state? On the other hand, if the person just mad at the HOA for some reason and decides to "teach the board a lesson", but otherwise is current on their mortgage and property taxes and doesn't have any other significant debt - then the HOA is probably going to be able to collect.

In my community we dealt with the second example and did foreclose successfully. We also dealt with someone who played the game very well, including declaring bankruptcy, making it harder for the association to foreclose. Fortunately the successful foreclosure (which is public info) apparently put the fear of God into this person and money appeared.

So a successful foreclosure can make homeowners take their obligations more seriously. But it has to be successful. If the board votes to foreclose in the low-percentage cases and doesn't get anywhere, then the message that homeowners will get is that they don't really need to worry about this. ** That is emphatically not the message that the board should send. ** So people who are hot to trot on foreclosures should understand that it can be counterproductive if not done smartly.

Kerry

Although I am not now, I was a Board member when two decisions to foreclose took place.

There is no reason the discussion cannot take place as you described. Both discussions did.

Both followed the "Joe Friday" methodology (Just the facts, mam) as you suggested, no names were mentioned, only account numbers were used. BTW, account numbers in my experience are as private an identifier as can be used as lot or parcel numbers are public information, at least in Texas since the plats are public. The account numbers are most often not sequential and do not give hints as to who the owner is.

It was my experience in both situations, by the time the matter progressed to the foreclosure stage, there was no more discussion regarding circumstances to he held. In the first situation, the attorney for the local school district asked us to testify before the court in her tax collection action (which was public); the owner had absconded to another country. Besides, one could not see the surface of the front door for all the notices posted on it. So much for privacy.

In the other, the owner was 'messing' with the board as he hated homeowner's associations and said so long, loud, and frequently. He also hated the city after his illegally parked 5th wheel trailer was seized and towed. He finally stepped up the day prior to the auction of the property and paid the amounts due. He also sold shortly thereafter.

I think what Joseph and others who want discussion in open meetings is to have enough information to judge whether or not individual board members are doing their jobs to the listeners' satisfaction.

My position is that listeners can't draw the conclusions they want to draw without disclosure of enough information to risk legal action against the association for defamation/whatever and that this disclosure will void attorney-client privilege, thus lessening the association's chances of successfully defending itself. Safe amounts of disclosure can often lack the details that will allow someone to judge whether or not the board is making good decisions, which is the whole point of this little exercise.

And, while sunshine laws and transparency are good, don't kid yourselves and think that they don't affect discussions and voting to varying degrees. (FWIW, I've spent the last several months hanging out with lawyers and have gotten an eye-opening education about legal stuff and defamation in particular. Holy cow, the laws are complicated, they vary by state, and even lawyers can inadvertently say something that comes back to bite them. If I were on the board and needing to decide on a foreclosure in an open session, I would say nothing. On second thought, I wouldn't serve on the board at all in a state where these discussions can't be held in executive session - problem solved, for me at least. There's yer transparency at work...)

First:Ditto.

Second: I think one might come away from CathyA3's remarks with the impression that maybe Boards should never discuss any issue that involves owner behavior. Why? Because ever present is the possibility of some verbal slip-up and subsequent accusations of defamation arising. (I will overlook that folks will sue for anything these days. For any entity with insurance, and as the line goes, I think this is the price of doing business. Some economical system has to support all those college graduates still trying to "find themselves"; landing in law school; graduating with even more debt; and managing to pass the bar.)

To me prohibiting boards from discussing any owner conduct at open meetings would loan itself to boards going behind closed doors, hiding more info from owners inappropriately, and being even more abusive than the errant remark made at an open meeting.

Third: I think any Board thinking that discussing an individual owner's violations of the covenants in executive session only will protect the board from accusations of defamation is way off the deep end here. For a claim of defamation to succeed in court, the law does not require that a falsehood be publicized to, say, the membership via an open meeting. As long as the falsehood is spoken or written to at least one person, and all the other elements for defamation are present, a person may successfully prevail in his or her lawsuit for defamation. Meaning a defamatory remark occurring in executive session is as likely to occur as a defamatory remark occurring in an open meeting.

Fourth: I think those states with extensive HOA/COA statutes (California, Florida, Texas, Virginia, to name a few) have enacted statutes and amendments that promote more transparency, and required more to be discussed in open meetings, not less. To me this says a lot about legislators' concerns that boards have been too abusive. Legislators' response: Sunshine baby.