HO versus lawyer/HOA

This topic is a continuation of a thread I previously posted about a HO claiming not to be part of the HO and their delinquent Dues.

Please forgive the length of this posting.

Last night our BOD met to discuss how to proceed. We are having some misgivings about how our attorney is handling (or not handling) this item. Quickly:
1. bills for the annual Dues were posted 12/28/08 due by 1/31/09 with a note that we are now part of the GAPOA and the consequences of not paying or delinquency itemized on that bill.
2. 12/28/08 HOA posted notice on our website reminding all about payment of the Annual dues + consequences
3. 2/4/09 "courtesy email" from HOA sent to delinquent HO for non-payment
4. 2/27/09 demand letter from our attorney to HO for payment + late fees + attorney fee (per GAPOA)
5. 6/29/09 "courtesy letter" from HOA alerting the HO that we are going to proceed with lawsuit if non payment is not received by 7/15/09
6. 7/11/09 HOA hand-delivered a copy of the "courtesy letter" dated 6/29/09 to HO. At that time, I was told by the HO that they had responded to our attorney, requesting a statement of ledger, and our attorney had not responded to that request or a second letter so they were released from their obligation, and were now claiming not to be part of the HOA due to some claimed irregularity by the builder when transferring ownership.
7. On 7/12/09, HOA contacted attorney to search for record of these contacts since the attorney has said there was no contact from the HO.
8. 7/18/09 our attorney contacted us saying they had searched and found no letter from HO dated 4/3/09.
Attorney found letter dated 7/7/09 sent to HOA attorney from HO attorney claiming that a certified letter was mailed to HOA attorney dated 4/3/09 requesting statement of ledger for HO, and claiming HO is not part of HOA due to some irregularity by builder. (Our attorney forwarded a copy of 7/709 letter to us but we had no previous knowledge of any contact).
Our attorney states that they researched the documents and the HO is part of the HOA and obligated to pay assesments, and comply with CCRs.

Okay with all that?
Now comes the rub...
The HO's attorney claims to have proof of certified letter dated 4/3/09 requested updated ledger, and since our attorney did not respond in the five days stated in their letter, they are not responsible for attorney fees, but are willing to pay the dues + late fees.

If that 4/3/09 letter wound up on the floor somewhere in our attorney's office, is the HO's claim valid? Why should the HOA have to absorb our attorney's fees if they were negligent?
The BOD believes that the attorney must respond to the HO's attorney ltr 7/7/09 confirming that the are part of the HOA, obligated to pay assessments and comply with the CCRs. This $300 letter from our attorney will be further billed to the HO's delinquent account fees as all associated costs in collection of the dues is the responsiblity of the delinquent HO (per CCRs & GAPOA).

Does any of this make sense to you all??

Your help would be really appreciated. Again, sorry for the length of this convoluted post.
Thanks,
Gloria

let the HO show his proof that the attorney received the letter.

Let the attorney answer the charge (if there is proof) that they dropped the ball.

and lastly, i would argue that the (possible) failure of the attorney to respond to A doesn't mean that the HO doesn't have to pay the charges for B... first, the response and penalty for task A must be reasonable (I can tell the IRS that if they don't answer my question in 5 days, I won't pay any taxes for the rest of my life, but that doesn't obligate them to answer. And, i will be very wrong if i withhold paying taxes based on it too), and second, the claimant must prove the "interrelationship" between A and B (ie, that the lawyers failure to do A is related to B).

If I understand the chronology correctly, your attorney's fees became due upon the sending of the 2/27/09 demand letter. The demand for a ledger on 4/3/2009 and the claim that your attorney's failure to respond w/i 5 days eliminates the attorney's fee portion of the debt is nothing more than wishful thinking on the part of the HO and his attorney.

I agree that you (or your attorney) should request a copy of the receipt for the certified letter, but if it turns out that your attorney did receive the letter and dropped the ball in responding, at most that would affect attorney's fees after that date, not before.

Certified letters, return receipt requested, frequently get delivered without the USPO obtaining the requested receipt. It may be that the HO's attorney assumes, incorrectly, that the receipt was signed since he sent it return receipt requested.

Sorry that my post was incomplete. Sent it off too quickly.

Roger,
1. The HO did not provide proof that they are not under control of the CCRs. Our attorney has stated that they researched that claim and found it baseless.

2. I did request that the HO provide proof of the "certified leter dated 4/3/09". The HO told me that their attorney advised them not to give us anything or talk with us.

3. Once we clear up this missing "4/3/09 letter", then our attorney will send them a letter stating they are part of the HOA, obligated to pay assessments, itemize the $$ due (annual assessment + late fee + attorney fee for either one or two letters...pending resolution of the infamous 4/3/09 letter)

This is getting too complicated.

Good question, Mary. We have asked the attorney this often lately.
We were told it covers reduced hourly rates, and answers to questions that we may have.
However, when we did pose some questions regarding other issues (easements at the front entrance and things like that) we were billed anyway.
It seems that this $1,000 did us no good at all. This is our first year with having an attorney on retainer (we are only 7 years old), and we are not so sure that is a good rependiture of limited funds.

The reduced hourly rate comes in at approximately $250. per hour. We are told the usual rate is $400. per hour. Easy to see who gets rich here, and it is not the HOA.

Gloria, whenever an account is turned over to an attorney the Board loses control. When they lose control it can get complicated and expensive. That's why we don't recommend an attorney until it is time to go to court.

Michelle,
This has been a learning process for us, and an expensive one at that, as far as the attorney goes. Understand that this is an infant HOA with not much experience to fall back on.

We don't have a management co. as we are too small so we self-manage...another learning experience.

Up until this year, we have not had the need of an attorney. After this year, we are not sure that paying a retainer is such a good idea. As you said, since our CCRs state that the HO is responsible for all associated attorney fees, then it really does not matter if we get a reduced hourly rate...another learning experience.

We needed guidance on when to seek an attorney...now we know.

I believe that you are correct in that we have turned it over to the attorneys, the BOD needs to step back and watch the sparks fly.

Michelle,
No offense taken. We also are still learning, and this forum has been a great help in directing us and sharing various points of view.

This is our second attorney also. Both specialize in HOA's, and maybe that is why they are so expensive...or maybe lawyers in general don't come cheap.

One point of view that I found very interesting, and I think it was you, Michelle, who posted it. You pay no retainer (that would save us $1,000 right off the bat), and if the attorney fees are high, they are charged back to the HO, so the HOA shouldn't worry too much. I know that we must front the fee, but the HOA should be reimbursed when the Dues are collected.

What I find disconcerting is the learning curve. ALL five BOD seats are up for election each year, so it is possible for an entirely new BOD to be seated each year...that would mean the learning curve would start all over again. That is scary to me just because of all that I have learned over these past four years.

Of course, the fact that no one wants to run for the BOD seats is what has kept the present BOD in place. In fact, we are now down to four Directors because we couldn't get a fifth name.

I keep telling the rest of the BOD that we must be doing something right because if we were stepping on people's toes or running this HOA in a way that offended enough people, we would be booted out...or so you would think.

Again, Michelle, I truly do appreciate all the comments.
Thanks for the help.

Gloria,

Your presumptions about why the 4 board members have remained on the board may be true, but don't get too complacent. There are a lot of members who are content to let some else do the job even if they don't like the job their doing. Just because you haven't been booted out or aren't getting a lot of complaints, doesn't necessarily mean everyone is happy with you. A lot of people like to complain to themselves but never do anything about it. Now, I'm sure you and your fellow board members are doing a good job, just don't let it go to your heads! (You know I'm joking with you, Gloria!)

Mary,
You are 100% correct. I know that there are whisperings amongst the masses, but when push comes to shove, they all back away from carrying any of the load.

So our BOD has made the decision that we will completely conform with our CCRs, but any other decisions (landscaping, websites, etc.) will be a the discretion of this BOD.

If we can get a pat on the back, I know it may just be ourselves appreciating our own time and effort. But in end, I can sleep at night knowing that I did my best, and followed the rules for everyone else.