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My HOA is suing me for a violation of the deed when many others

in the community are in...
My HOA is suing me for a violation of the deed when many others in the community are in violation as well. Is this fair? How can I defend it in court?
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Answered in 5 minutes by:
7/5/2013
ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 17,250
Experience: Licensed General Practice Attorney, Texas
Verified

ScottyMacESQ :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacESQ :

Can you tell me what state this is in?

Customer:

Texas

ScottyMacESQ :

Thank you. One moment please while I research this, and will get back to you shortly...

Customer:

Sure, should I wait or you will email the answer?

ScottyMacESQ :

If you're being sued and you can show that they don't enforce this equally, a defense to the lawsuit is something known as "selective enforcement"

ScottyMacESQ :

No, I am here.

ScottyMacESQ :

In short, selective enforcement says that the HOA "waives" the right to sue because they don't enforce the rules in a neutral manner.

Customer:

So, basically you are saying the HOA can "waive" the right to sue other indviduals and just sue me?

ScottyMacESQ :

No, I'm absolutely not saying that.

ScottyMacESQ :

I'm saying that by not suing everyone, but suing you alone (when others are doing the same thing and the HOA is turning a blind eye to them) that they're selectively enforcing the rules.

ScottyMacESQ :

If they do that, then they can't sue you.

ScottyMacESQ :

It's a defense to the lawsuit, in that the "rules" are discretionary, and not binding on all members equally,

Customer:

So, I need to mail a statement to the court stating whether I am guilty or not of violating the deed...even though I have now complied, I could state...

Customer:

No, I am not guilty. The deed in being selectively enforced.

Customer:

As well, they are wanting me to pay attorney fees--over 2500. The suit was filed after I took my basketball goal down.

ScottyMacESQ :

If you're being sued, you would file an "answer" to the lawsuit, generally denying the allegations, and as a defense would assert the affirmative defense of "selective enforcement", giving evidence of how often they do not enforce it.

Customer:

Yes, the answer is what I need to file.

Customer:

So, something like...No, I am not guilty. We do not have a basketball goal up. However, I would like to point out the fact that selective enforcement of the deed is being practiced in the filing of this suit. As well, I can include the 50 photos of goals I have taken in my neighborhood.

ScottyMacESQ :

I don't know the specific facts of the case, and you need to know that you cannot lie. But you can enter a "general denial" meaning that you deny the plaintiff's allegations, but not specific allegations.

ScottyMacESQ :

Note that this form does not have a spot to put affirmative defenses.

ScottyMacESQ :

I would suggest going to a local library and asking if they have access to any legal form books or legal forms online.

ScottyMacESQ :

(...to get a more specific answer form)

Customer:

Oh, no, this is the complete truth. That is why it is so frustrating. When filing an answer, should I include the photos of the other goals in the neighborhood or wait until a court date is assigned.

ScottyMacESQ :

You could include the photos in an appendix, if you want, or you could wait until the court date.

ScottyMacESQ :

I assume that you're being sued in small claims or justice court...

Customer:

What legal forms would I need?

ScottyMacESQ :

A defendants answer that has affirmative defenses on it.

ScottyMacESQ :

If you can get a copy of "O'Connors Pleading Forms" that would be the best.

ScottyMacESQ :

But like I said, go to your library, check out a book on self representation and see if they have access to legal forms.

ScottyMacESQ :

Most libraries do.

Customer:

Yes, it is just small claims court. Do you think it is general practice to self represent in small claims court? I feel the case is pretty cut and dry. They asked us to take a goal down because they didn't like where we had it. Eventually, we moved it. After moving it, they filed suit. Nothing happened. A year later, we were served papers over the goal. It's kind of ridiculous. The HOA is "approving" goals of other homeowners now that are pushed up at the front of the driveways EVEN though according to the deed restriction they are not allowed. Does that make sense?

ScottyMacESQ :

It does. It is common to represent ones self in small claims court, since there are much more relaxed rules pertaining to evidence, procedure, etc...

ScottyMacESQ :

Further, small claims court is more "equitable" (in that the justices look to see what's fair more often than not)

Customer:

So, do you think we have a chance with details I mentioned?

ScottyMacESQ :

Certainly. But don't ask me to give you any idea of your chances. There are far too many variables, and even in cases that I am the lead attorney on, I could only give a range of chances. But the judge, facts, HOA documents, etc... could all have an impact.

ScottyMacESQ :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacESQ :

Did you have any other questions before you rate this answer?

ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 17,250
Experience: Licensed General Practice Attorney, Texas
Verified
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ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 17,250
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Experience: Licensed General Practice Attorney, Texas

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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