What would you do regarding small claims filing?

Started by KarenT • 13 replies • 1472 views

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KarenT
Posts: 249

Posted:

We have a homeowner who recently sold a residence in our HOA. The HOA rec'd payment for the lien that was filed on the property for $1,344. This homeowner (now a former homeowner) filed a small claims action for $4,000 naming the individual officer dba as the HOA. i.e. Jane Doe, dba *****homeowners association. Would you have your association attorney send a letter to this previous homeowner stating he has filed an "unlawful" "unwarranted" "incorrect"?? small claims action? It is the HOA understanding that lien disputes must be heard in Superior Court. We just want this to go away and not be sitting on pins and needles since the small claims complaint can be held open for a year!!!! Thanks!

RobertR1
Posts: 5,115

Posted:

KarenT,
I am afraid it is the price of Poker, meaning we are all open to this kind of thing. Discuss it with the Board, put your action in the minutes. I suggest your attorney handle it UNDER the Boards control but all correspondence come from the attorney, and file a counter claim if it persists. Nothing to get upset about. You also might want to check with your insurance agent and keep him inform, maybe the will intercede.

GlenL
Posts: 5,429

Posted:

Karen I thought you were going to turn this over to the attorney:
http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/39484/Default.aspx

DO NOT IGNOR this as he may be able to get a default judgment. Have your attorney answer the claim, get it moved to superior court where this idiot will have to pay for an attorney and counter sue him for your attorney costs to defend. And as Robert stated notify the insurance carrier that provides your D&O insurance.

KarenT
Posts: 249

Posted:

I did contact our attorney. He indicates that because I was not "officially" served as required under the small claims filing - I shouldn't worry about it until we are actually served.. The only way I found out - was that I was in the court website looking for other matters and this popped up!

RobertR1
Posts: 5,115

Posted:

Karen,
Well, isn't that Ducky.

How in the world did it make the court docket without being served. Did you happen to ask the Attorney that? I think if my name was one that docket anywhere I would be talking to someone. But maybe that is how they do it, I doubt it.

DJ1
Posts: 791

Posted:

Heads up, and it may not be applicable to you but some jurisdictions only require that you show you made a reasonable effort to serve the papers not that they were actually served

KarenT
Posts: 249

Posted:

I still plan to show up tomorrow just because I do not trust this guy at all to pull something shady - that's how we ended up having to place the lien on the property in the first place!!

THANKS EVERYONE!!

RobertR1
Posts: 5,115

Posted:

Karen,
What did I miss here? Yo0u are going to show up for what?
Is the case to be heard tomorrow? Now, your lawyer says donj't worry about it untill you are served and you are going to go and be present at the heariing. That don't seem right to me. I suggest you all keep a low, low profile until you have more to go on and follow lawters advice.

KarenT
Posts: 249

Posted:

What if I don't show up tomorrow and he has something that indicates service has been made? He will automatically obtain a default judgement!!!! I guess I'm just a little paranoid at this point because of the shady way he has done things in the past. If he doesn't show up then I won't have anything to worry about but sitting back and observing! However, if he is as dishonest as he has been in the past who knows what will happen!!

GloriaM
Posts: 820

Posted:

Karen:

In small claims court the Owner/plaintiff in this case has to notify you and give proof to the court that he did so. Does that mean you were served, unfortunately no. Your attorney should have made a motion in small claims to have the matter moved to superior court because attorney's are not allowed in small claims. In superior court is where he would represent the HOA. Has your attorney done so?

KarenT
Posts: 249

Posted:

No - when I called our attorney telling him I'd found this information by coindicence because I was looking in court records, he told me not to worry about it because I had to been "officially" served. Again - this entire matter makes me very cautious since the individual who filed been extremely honest in this entire matter and it wouldn't surprise me if he fabricated proof of service.

KarenT
Posts: 249

Posted:

Meant "dishonest" sorry for the typo!!! :-)

GloriaM
Posts: 820

Posted:

Karen:

IMO your attorney should check on the board's behalf, I too would be concerned. Document in writing to your attorney that the board requests for him to do this to safeguard the board & HOA. I have seen small claims cases go through with the "notion" that you were served.

KarenT
Posts: 249

Posted:

Gloria,

Just to let you know - went to small claims court. the homeowner who filed never showed up!!!!! Go figure??

Anyway, the first thing the judge said, was "this is filed in your name individually" and off I went explaining I was an officer of the corporation - not DBA,therefore the filing was invalid and not in the proper venue. He immediately dismissed the case!! I feel so much better knowing I went and it is "officially" dismissed!!

Again - thank you to everyone who responded :-)

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