Caution: Dysfunctional HOA & Board Members May Cause Mental Anguish
(001) ls your experience with HOA's as dysfunctional as mine?
(002) In preparation for a court case by our homeowner against the dysfunctional Board of Directors, the Board opted not to be present at the Small Claims Court and assigned the HOA lawyer to represent their defense.
(003) The Board must understand they can't defend their actions on the merits of the case so they hire a lawyer to defend them.
(004) The lawyer will of course not attempt to refute the evidence but use legal mumbo jumbo to convince the Court that the homeowner has no right to sue a Board regardless of any damages or conflict with the HOA by laws.
(005) Normally, Small Claims Court operates without attorneys but Colorado law was changed to allow lawyers in the Court to represent their clients.
(006) This tilts an already defunct and broken homeowner's legal rights environment more in favor of the HOA with cases won or lost not based on flagrant violations and obvious wrongs but on some technicality they find in the law: no wonder lawyers have the negative image.
(007) Again, Small Claims Court was supposed to be representative of a "people's court" whereby everyday citizens could argue cases based on facts and not get involved in legal jockeying and bending and abusing the intent of the law by lawyers: that has now been corrupted.
(008) See earlier posting on this topic for specifics on this case.
(009) Make no mistake, the odds of winning are against any homeowner suing the HOA even for the most obvious and proven improprieties.
(010) This unfortunately is reality and not the expected justice that we expect in the American legal system.
(011) Let me share with you ahead of time how the introduction of lawyers in the Small Claims Court system in this case has turned logical arguments, based on facts and HOA by laws and State legislative bills into a something the average citizen couldn't even imagine would take place: the lawyers make a mockery of the legal system with their arguments and turn the right into wrong and the obvious into the ignored.
(012) Check this out for a defense strategy: The lawyer is claiming/implying the Board of Directors, who is the defendant in this case, acted upon its' advice and therefore any wrong doing by the Board is not the Board's fault nor can they be held accountable.
(013) How disgusting is this argument and how insulting this should be to the Judge.
(014) So, if the Board is advised to disobey your by laws or break the law it is fine as long as they asked the HOA lawyer for their advice.
(015) This also means that the homeowner now has to turn around and sue the lawyer for their illicit advice.
(016) In other words, twisting the law in this odd manner means you can never hold your HOA accountable and the Board can loot your HOA by hiding behind the defense that the "lawyer made them do it": let's see how the Court accepts this argument.
(017) The lawyer indicates that actions by the Board, regardless of improprieties and their non-compliance with the by laws and State Bills, are considered non contestable by any homeowner.
(018) When a homeowner moves into the community you give up all rights to question all actions by the Board: how screwed up is this thinking?
(019) The Board will sue you if you don't conform to the by laws but when they ignore them and place your assets in jeopardy that is different.
(020) If this is the case, then when closing on a home in an HOA community it should be the law to indicate that the by laws are only applicable to homeowners and that any stated by law responsibilities or guidelines in managing the community and directives on how to protect HOA assets should not be considered anything more than goals and the Board will not be responsible for any losses due to deviating from such suggested guidelines.
(021) In other words, the by laws are for use against homeowners and not to protect them.
(022) The lawyer will argue that a homeowner who uncovers misuse or unaccountable use of funds or accounting improprieties has no rights to force the HOA to change their ways and exercise expected fiduciary responsibilities over HOA assets: the HOA can simply hand out money to third parties without invoices, signed check requests, evidence of expenses, etc.
(023) What the @#$%&" do we have by laws and Senate Bill 100 for?
(024) A homeowner is a paying member of the HOA and if losses occur due to improprieties or flagrant lose handling of cash assets, and if and when the HOA gets into financial problems, the homeowner will most certainly experience financial loss.
(025) The HOA lawyer believes potential and/or actual losses due to loose and improper accounting practices by the Board and the Treasurer are no business of any homeowner: who then and how is there any accountability?
(026) There is more of this convoluted thinking to protect an incompetent Board and Treasurer which will surface during Court proceedings.
(027) If these types of arguments are accepted by the Court I would suggest that Boards of Directors are thereby authorized and empowered to loot HOA funds.
(028) The outcome of this case will be used to approach legislators for their help in protecting homeowners against dysfunctional Boards of Directors and the lawyers they hire to shelter their activities and behavior from accountability.
(029) Homeowners have a high misunderstanding as to the effectiveness and use of "by laws" in the management of the community and protecting HOA assets.
(030) Think about how absurd it is that you are forced to abide by the by laws but your Board can flush them down the toilet.
(031) Even more sad is that when informed of this fact most homeowners will continue to empower, enable, and vote for the very "lifer" Board members that ignore and have contempt for by laws which are meant to stabilize, financially secure, and maintain the community.
(032) Go figure? Dysfunctional HOA, the Board, the HOA Lawyer, and Your By Laws.