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I am a member of a Home Owners Association of a Condominium…

I am a member of...
I am a member of a Home Owners Association of a Condominium Complex (HOA). After reviewing the books I found several discrepancies which turned out the board of directors was using HOA money to remodel the condos they owned. I sued, however my attorney messed up the case and settled with the HOA. After the matter as settled the HOA began retaliatory actions against me. (Towed my truck renumbered my car port, took back a car space I purchased, refused repairs to the outside of my unit, used an emergency key and walked into my unit during dinner, fined me, indicated I was late in HOA dues multiple times yet the bank verified the check was cashed by the HOA, and it goes on.) Because my attorney within the Final Resolution indicated all "future" matters had to be by Mediation/Arbitration I am now filing a Motion to Compel to get them to Mediation on harassment. (I have sent them 8 letters asking them to go to Mediation and SMU has contacted them and the HOA refuses.) Question: The harassment is very easily proven, yet what damages may I ask for? In Texas, what are the practical dollar limits what can Mediate for very egregious harassment? What case law is there for harassment? What settlement amounts were awarded in those cases or others?
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1/16/2018
Law Educator, Esq.
Category: Business Law
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only. Please feel free to ignore any phone service request, the expert does not send those unless asked by customer and they are sent by the site automatically.

If they are harassing you and filing claims against you since you filed a complaint against them, then this can fall under the Texas Anti-SLAPP legislation which prevents them from filing false or frivolous claims against you to stop you from speaking out against them. See: Texas Civil Practice & Remedies Code, Chapter 27, which states:

  • The statue allows a judge to dismiss frivolous lawsuits filed against one who speaks out about a “matter of public concern” within the first 60 days. “Matter of public concern” is defined expansively in the statute.
  • The Anti-SLAPP motion is supported by affidavits explaining to the court that the lawsuit is based on, relates to, or is in response to one’s exercise of his right to free speech, right to petition or right of association.
  • The burden of proof is initially on the party who files the Anti-SLAPP motion to establish (by a preponderance of the evidence) that the lawsuit was filed in response to the exercise of his First Amendment rights. Then the burden shifts to the plaintiff to establish (by clear and specific evidence) a prima facie case for each essential element of the claim.
  • The statute creates a stay of discovery in a lawsuit while an Anti-SLAPP motion is pending and/or appealed. The court has discretion to order discovery pertaining to the motion if it feels it is necessary.
  • The statute provides for mandatory fee shifting when a party wins an Anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs. There is a discretionary fee award if the Court finds that the Anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings.
  • The statute provides an immediate right to an expedited appeal if the Anti-SLAPP motion is denied.
  • The statute applies to lawsuits or “legal actions” (which includes claims and counterclaims that implicate First Amendment rights) filed on or after June 17, 2011.
  • The exemptions contained in the statute are for enforcement actions brought by the State or law enforcement, for commercial speech and for wrongful death and bodily injury lawsuits.

The damages you can ask for would be based on the damages you can prove you suffered. AS far as settlement amounts they are all over the place, because everyone has different amounts of damages.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 1 month ago
The HOA has not filed any claims against me. Here is what they have done: The HOA sends me a letter. I am being assessed $50.00 late fee for late payment of HOA dues. I get the bank to send them a letter indicating the check for HOA dues was cashed by the HOA. I check my account, the fees are still on my account. Several months go by, I receive another letter indicating I have been assessed $50.00 late fee for late payment of HOA dues. Again, the bank sends them a letter indicating the check was cashed by the HOA. Several months go by, and the HOA does the same thing. I need external repairs on my unit, the HOA does not even acknowledge the request for repairs. Yet other Homeowners when they request repairs, they get them. So, what monetary loss have I had, for this, none. I have never paid the late fees. When the took the car space away from me which I had purchased, that's worth maybe say $5000.00. I wrote them a letter and they just refused to give it back. When they towed my truck, 3 times, maybe $500.00 total to get it back. In some cases they tow it to another spot on the property and then assess me $50.00 for towing charge. Which I have never paid. And it continues. My second car space, car port, was renumbered and I was told if I park there I will be towed, again. So, no claims have been filed against me, and I have lost no monies to date because I have not paid the late fees assessed against me. I am out my car space but it has cost me no money today, as this was purchased 20 years ago. So, when you consistently harass someone as they are doing to me, and I have to Mediate based on a Resolution Agreement my previous attorney settled into, what are my options? And to what dollar figure can I mediate for? Is there any case law which is based on harassment itself without the plaintiff actually having spent money because of what the harasser has done?

Thank you for your reply.

Those are claims against you. You need to send them a letter telling them that they are frivolously harassing you since you filed your legitimate complaint and that their continued conduct can lead to an anti-SLAPP claim as well as a harassment suit against them. The anti-SLAPP claims, because punitive damages can be awarded, can cost the HOA $50,000 or more. But remember, when you sue the HOA for damages, who pays? YOU as the owner pay part of the damages of judgments against the HOA.

A regular harassment suit would depend on the actual damages you have and if you cannot show the monetary loss, your claim is not worth very much and that is the problem with HOA's and that is also why these cases do not make it to court, because residents have to pay part of any judgment against the HOA.

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Customer reply replied 1 month ago
I understand I pay part of the settlement, but I cannot sue a member of the HOA board of directors. But the Board of Directors can take action against a member of the Board for allowing the actions and hence damages (if I get them) because of that member of the board's actions. Hence, I sue for $50,000.00 and win. This comes from the reserve account. If the HOA board wants their money back they can bring action against the member of the board who was in control of the harassment. So yes, indirectly I pay for the award, if I get one, but I will get a lot more reward than what I will pay (there are 300 units). What would be nice is to see a previous case in which the plaintiff was suing for harassment (via Anti-SLAPP) or under Texas Harassment statutes and see what was said that the plaintiff was awarded damages?

Thank you for your reply.

You can sue the member of the board directly if he is acting outside the scope of his duties, but if he is acting within the scope of his duties, he cannot be sued personally.

As far as your theory about how payment of a judgment works, the board will not sue the individual board member for payment, it will just come out for the dues you pay. You would get more reward than your share of what you have to pay.

The suits all mention harassment, but the ALL include anti-SLAPP claims as well, because the HOA taking action against you is to try to stop you from engaging in your right to public expression and free speech about the HOA. See: Serafine v. Blunt, 466 SW 3d 352 (Tex App 3rd Dist. 2015).

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Customer reply replied 1 month ago
Then at Mediation, based on punitive damages for actions taken against me by the HOA, is there amount set by law? Such as 3 times actual damages? If I were to add all the monies spent by me, first attorney fees included, I would approximate about $12000.00, based on the car space the HOA took back without due process at about $5000.00. So then based on this $12000.00 amount what would be rational to ask for in Mediation? (Again, I am going to Mediation because the previous attorney filed a Resolution Agreement which the judge signed as the Final Resolution which states all past and future matters are to be Mediated.)

Thank you for your reply.

No, the damages are not set by law, they need to be "reasonable" which is all the court requires of punitive damages. Three times actual damages is just a ball bark range of what a court thinks is reasonable for punitive damages.

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Customer reply replied 1 month ago
Apologies for not getting back, but I had one more related question. In the example of case law you gave, Serafine v. Blunt, it was pursuant to a property issue and the retaliation of issuing the lawsuit. In my case there was no lawsuit and never has been, is there a case where someone has found someone stealing money or by their practice or what they did and by one calling notice to this stealing or practice retaliation then commenced against that party for pointing out that stealing or practice? And within that the plaintiff sued and the anti-slap law was used and the court found in favor of the plaintiff? I am trying to configure my arguments to the mediator in line with what would happen at trial since I would be mediating damages based on all the things that were perpetrated against me.

Thank you for your reply.

There does not have to be a lawsuit, you mentioned that multiple times, but I told you, the issue is that they are punishing you and fining you, which is the same as them suing in court. So, your arguments you are being harassed would also be grounds for your claims and that they are harassing you to stop you from filing claims against them and that is why it falls under the Anti-SLAPP.

Law Educator, Esq.
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