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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 34358
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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For socrateaser only.HI again, Thanks for the great advise.

Resolved Question:

HI again, Thanks for the great advise. I called the sr inspector and jr inspector and sent them an email regarding what you said. Now the neighbors have gone to the HOA. There is a BAD ass dude on the board who I helped get kicked off the HOA board years ago bec he was used by the one neighbor as a tool to harass me, he was rude to me who started the welcoming committee, landscape committee, threw parties for free for the HOA association, etc.

Submitted: 1 year ago.
Category: Real Estate Law
Expert:  socrateaser replied 1 year ago.
Hello again,

Here's the deal:

Civil Code 1363(g) authorizes an association to hold a disciplinary hearing and to impose fines on a member. The law, however, is extremely thin in terms of procedure. There are two reasons for this: (a) a member can effectively negate the entire disciplinary process by requesting alternative dispute resolution (ADR) pursuant to Civil Code Sections 1369.510-1369.590; (b) imposing a set of judicial-type rules on an association is simply impossible, because, for the most part, association boards don't have the education, training, experience, etc., to conduct a "trial" on any subject.

The notice you received suggests that the association intends to try to operate similar to a small claims court. The problem is that the "judge" is biased, because it is made up of your adversaries, among them, persons who have a demonstrated grudge against you. The idea that you can "request" witnesses and "documents" is silly, because the board has no subpoena powers -- no one can be forced to appear, and no one (other than you), can be fined for failing to appear.

You may want to consider writing the board, and requesting that the board produce a witness list, with the contact information for each and every person who will be testifying against you -- as well as copies of all evidence which will be offered against you at the hearing. And, you could also offer to cut this matter short and instead agree to a formal arbitration hearing before a true neutral decision maker. This would be expensive, but you would show that you are interested in getting to the root of the problem. The association will probably refuse, because it won't want to spend the money (neither do you) -- but if you don't like the outcome of the board hearing, your next step would be to demand arbitration before suing for declaratory relief in Superior Court (which would be really expensive).

One other point which may be of use. An association cannot foreclose a homeowner's property, using a lien filing and trustee's sale based on a fine (only unpaid assessments can be foreclosed by a lien filing and trustee's sale). Civ. Code §1367.1(e). This makes collection more difficult. The board could sue in small claims court, and it could file a judicial foreclosure ($$$$). But, the botXXXXX XXXXXne is that if your property is underwater, and you don't have any wages that can be garnished, or nonretirement assets that the sheriff could seize, then you may be judgment proof, and that means that the association may be unable to collect from you no matter what it decides to do.

If it were me, I would probably try everything suggested above, so as to make the process as costly as possible for the board, and then simultaneously offer to try to settle this through some sort of negotiation. I honestly don't know what that settlement would look like, but from a human nature viewpoint, the goal is to give the board something that it can use to make it feel important, give your neighbors something to quiet them down, and give you some room to do what you need to do to survive in your present circumstances.

In the end, the only real solution to these types of problems is to have a court or arbitrator decide everything -- or, sell, or rent your home and move somewhere else. Frankly, the latter solution is frequently the most cost and mental health beneficial choice -- though it never seems so while you're in the midst of the maelstrom.

Hope this helps.
Customer: replied 1 year ago.

HI,


Thanks for the GREAT answer! I will, of course, do what you told me to do and write a letter to the board. Do you mind if I run it by you before I send it out? The big problem here is our board is very educated. I told you about the HOA attorney on the board. He is the nasty one who everyone hates bec he is arrogant and extremely rude. He will try to put a nail in my coffin I'm sure because I nailed him when he ran for reelection years ago saying we didn't want a rude person like him to represent our neighborhood.


 


My property is not underwater and there is a lot of equity but my ex refinanced it and took a lot of money out at 5.83% plus a HELOC which is killing me each month. He KNEW I would want the house and said I had to assume all responsibility for the loans. My alimony and child suport doesn't even pay the mortgage and taxes... So glad that's what 24 years of marriage got me! All of the HOA dues are paid to date. Unfortunately, unlike most Americans, I pay my bills before I eat or buy clothes, hence the reason I am so broke right now and LOVE thrift shops!


 


I built my home and REALLY LOVE IT. I don't want anyone to force me out. If I leave here, I want it to be on my terms, no one else's (There's the stubborn Aquarian in me!).


 


I have a wedding here tomorrow that I am cooking for and doing all of the flowers. Sunday and Monday I will work on the letter and send it to you then if that is okay. I REALLY am sooo grateful for all of your considerate, well thought out, worthwhile advise. Even though you don't know it, you are on my list of people who I send good thoughts to every day. I hope you feel that energy that I am sending your way!


 


I have studied natural medicine and health 22 years so if you have any issues that you want to run my way, I would be THRILLED to help you!


 


all the best


Michelle ; )

Expert:  socrateaser replied 1 year ago.

I'll be happy to look at the letter. Thanks for your continued confidence.

socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 34358
Experience: Attorney and Real Estate broker -- Retired (mostly)
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