AZ HOA gone wild !

[justbroke]

Hearing in PHX today and we won again. Damages + sanctions. Judge felt it was a public policy issue and she needed to send the HOA a strong message to clean up their act. And yes Azatty - your guess was right.

Congratulations... AGAIN!!! By the way, did you do this as a contested matter (by motion) or by complaint (adversary proceeding)?? Just curious.

[idainc]

Thank you. It was a Motion for a Contmept Order. Just received the award order which was about 1/2 of the itme it took me. Oh well. Maybe I'm slow and that was what the judge felt it that what was what an attorney would have charged. The judge did mention sanctions as it is a public policy that the court spank them. My question now is whether this is their only punishment or whehter not that the HOA has been found in contept of court is there a separate document that follows this with the sanctions - and if so - are they payable to us ?

[despritfreya]

My question now is whether this is their only punishment or whehter not that the HOA has been found in contept of court is there a separate document that follows this with the sanctions - and if so - are they payable to us ?

Unfortunately, unless the Judge ordered otherwise, the sanction you got is a one time hit. Once it is paid to you the HOA will go on its way. The problem is that if the sanction was not big enough the HOA, while it may remove you from its computers, is just going to pull the same crap on someone else.

Des.

[justbroke]

The problem is that if the sanction was not big enough the HOA, while it may remove you from its computers, is just going to pull the same crap on someone else.

This is exactly why I applaud the Florida judges who go the extra step and award punitive damages, at a ratio of 2:1 (punitive damages to actual damages) in these cases.

You are so right, Des, there has to be something punitive. Most judges shy away from these when the offending party "quickly" rectifies the situation. In this particular scenario, this was the 2nd time the offending party (defendant) violated the stay. The Court has inherent equitable powers under 11 USC 105 and under 11 USC 362 or 11 USC 524 when it comes to the stay and discharge injunction, respectively.

This may be why my stay violation was settled quickly as I asked for 2:1 punitive damages that would have put my creditor's cost from the egregious violation at $12,000!

Too bad many attorneys don't want to take the borderline stay violation cases on contingency. I think the creditors will keep doing it when it is borderline and there is no one to challenge them. The judges need to spank these violators harder than just "attorney fees". I'd like to see some more punitive damages.

My question now is whether this is their only punishment or whehter not that the HOA has been found in contept of court is there a separate document that follows this with the sanctions - and if so - are they payable to us ?

I'm with Des on this. Additionally, in your prayer for relief, did you ask for punitive damages?

[idainc]

The Order we received yesterday made mention of "Damages" only. and make mention of the explanation of the calculation in "the decision on record". The judge specifically told the HOA that there was a need to address "public policy" in that this group deals with thousands of homes in this state as well as the judge mentioned "sanctions". I believe sanctions are separate and apart from damages in this case. What we received was a "minute entry". My take on this is that the judge is crafting another document that will address the Court having found the HOA in contempt and the Court will levy sanctions on them to see to it that they never do this again. The HOA put on a dog and pony show about their internal procuders being revised etc.

Guardedly hopeful there is another shoe to drop. I did ask for emotional and punitve etc. but was denied I guess as after all I'm approaching 5 figures on lost income already. To quote - "IS FULLY SET
FORTH IN THE DECISION ON RECORD." As this was their second turn in the barrel for the exact same issue it seems O to think " damages" and " sanctions" are being separated as my damages were lost wages on the part of a bankrupt and there was a need seen to get them paud whil the judge writes the decision.

I also have no reason to suspect sanctions against the HOA ( actually their managing company) woulf br paid to any other party other than us.

[despritfreya]

The Order we received yesterday made mention of "Damages" only. . . I believe sanctions are separate and apart from damages in this case. What we received was a "minute entry" . . . Guardedly hopeful there is another shoe to drop. I did ask for emotional and punitve etc. but was denied. . . To quote - "IS FULLY SET FORTH IN THE DECISION ON RECORD." . . .

All of the above was contained in the Minute Entry, including your award for damages and the denial of punitive damages????

If so the minute entry must have been signed by the Judge and contains "Rule 52" language. If I am correct then the minute entry serves as the final Order of the Court and there will be nothing further.

To be absolutely sure, call the Judge's clerk to find out if there will be a separate Sanction Order for a sum over and above what you know was awarded to you. But, you must remember: punitive damages are the equivalent of a sanction and you have indicated that such damages were denied.


Des.

[DaisysMom]

I've enjoyed reading about your successes. Congrats!!! Just one question....what's an HOA? Is it like a condo organization that you pay for maintenance or something? Just curious.

DM

[idainc]

All of the above was contained in the Minute Entry, including your award for damages and the denial of punitive damages????

If so the minute entry must have been signed by the Judge and contains "Rule 52" language. If I am correct then the minute entry serves as the final Order of the Court and there will be nothing further.

To be absolutely sure, call the Judge's clerk to find out if there will be a separate Sanction Order for a sum over and above what you know was awarded to you. But, you must remember: punitive damages are the equivalent of a sanction and you have indicated that such damages were denied.


Des.

There is mention of Rule 52 however this is also there - " THE REASON FOR THE DENIAL OF ALL OTHER DAMAGES, EXCEPT FOR THE COMPENSATORY DAMAGES, IS FULLY SET
FORTH IN THE DECISION ON RECORD. " There is no reason listed on this order. Given all the talk about sanctions in the hearing as well as what the judge called " public policy" I believe the judge is crafting a document another order that will take a lot longer. The order we received was received at Noon the day after the hearing. It is a one page order.

[idainc]

I've enjoyed reading about your successes. Congrats!!! Just one question....what's an HOA? Is it like a condo organization that you pay for maintenance or something? Just curious.

DM

yes

[despritfreya]

There is mention of Rule 52 however this is also there - " THE REASON FOR THE DENIAL OF ALL OTHER DAMAGES, EXCEPT FOR THE COMPENSATORY DAMAGES, IS FULLY SET FORTH IN THE DECISION ON RECORD.

Well there you have it. Your Judge has denied all other damages and that would include sanctions. The decision on the record refers to the hearing and the Judge's reasoning behind the Order. A judge can do one of 2 things 1) write a memorandum decision and an Order implementing that decision or 2)put her memorandum decision "on the record" as voiced at a hearing and then issue an Order implementing the decision. Regardless, for $20you can get a recording of the "decision on the record".

Des.

[idainc]

Well there you have it. Your Judge has denied all other damages and that would include sanctions. The decision on the record refers to the hearing and the Judge's reasoning behind the Order. A judge can do one of 2 things 1) write a memorandum decision and an Order implementing that decision or 2)put her memorandum decision "on the record" as voiced at a hearing and then issue an Order implementing the decision. Regardless, for $20you can get a recording of the "decision on the record".

Des.

A Ha! Well the HOA put on the dog and pony show to show the judge they were repentent. The purpose being they had to take the internal measures anyway. I did not realize that a judge record a vocal decision and send a paper order. Oh well. A great expereince anyway.

[despritfreya]

A Ha! I did not realize that a judge record a vocal decision and send a paper order. Oh well. A great expereince anyway.

This recording is that of the Hearing you attended. You may want to get a copy anyway - I said $20 but it may be $26. Just call the clerk's office for instructions in how to order it.

Des.

[idainc]

This recording is that of the Hearing you attended. You may want to get a copy anyway - I said $20 but it may be $26. Just call the clerk's office for instructions in how to order it.

Des.

Thanks. As a final tally I won back (after a lot of effort) about 10 years of dues, they spent probably $15K on legal fees and they got taught a lesson. I absolutely refused - after all the lousy miserable foul calls we got - to be taken advantage of by a creditor. Not gonna happen. With this second go around I was waiting for them. In fact I still am. Their accounting department left the barn door open and the invoice slipped out.
They could still send me another invoice.

As an HOA they are really pretty good and dont go overboard but their managing agent, local on ste rep and their legal people are the biggest bunch of bottom feeders there ever was. They're bottom feeders - just sitting around feeding off the dollars that come in and going for the throat when they dont. They have lien power over pocket change. Absolutely zero value added. Shylock's. I am truly glad to be free of them.

Their attorney told the judge he felt that I should have picked up the phone and settled this and I responded that if he was facing himself in that same situation sitting in my chair he'd go to court too. Like I owed these schmucks any courtesy at all. This creditor got the exact same level of courtesy my creditors gave me. They sent me a bill and I sent them a Motion for Contempt of Court.

It was a tough road.

[justbroke]

As a pro se filer and as a person who has filed a complaint (an adversary proceeding) and was paid to settle that complaint... let me tell you that I absolutely agree that we need to take charge!

Creditors should know that their worst fear is a pro se filer who files a complaint or contested matter for a stay or discharge violation. What most of them realize is that the pro se debtor has unlimited resources! I mean, they are not paying an attorney and the only loss is really their time. Additionally, those of us who are professionals in our real life, command hourly rates that exceed many attorneys. When you start asking for actual damages that include our time -- even if you took vacation time to attend hearings -- they get all tongue tied, as you now know! I had no problem asking for $250/hr for fees. My case settled.

Again congratulations! I hope that more judges are less lenient on these creditors. Most creditors fear the automatic stay. Others think it's just a game. Alas, I actually love to play this game!

[idainc]

In AZ we've had a series of articles in the local rag (AKA the Arizona Repugnant) about HOA's and their collection lawyers running around chasing people for money. They're playing very footloose with laws. The best research I could come up with was published my law firms ( not the one that I went up against) that gave very accurate advice and I used it against these slobs. Their attitude is an outgrowth of their swollen egos that they can do whatever they want - from fine you for one weed to send repeated bills while you're in BK.

The first go around they had the temerity to phone in their appearance and we got into a discussion about how they felt it was incredible that anybody had a higher hourly rate than they did. I was sworn in and the judge asked me what I did for a living (my own firm ) ( with documented history of billing what we do per hour). The young attorney on the other end of the phone call was incredulous. I got a lot of questions both times about how I had the time to do this, when I did it, where did I do my research etc.. Their attorney stated - "Oh well your honor, we have thousands of customers and it’s just so easy for one to slip through..."

I found our court here to be supportive and the judge we had to be understanding of what I was up against. More so the first time but when you go in the second time for an award you do get a bit more scrutiny. Quite frankly I was very surprised in both cases why they didn’t settle. They lost both times and it could have been cheaper. Then again with the bottom feeder law firm they use those guy's didn’t seem ethical enough to advise their client correctly and went for the court appearance fees etc. Serves them right. I think I got what the judge felt a good attorney would charge for what I did. But for me to do it takes a lot longer.

Had to laugh. I was on the witness stand getting questioned by this lawyer about why I brought this action. I related the stories in the paper and since there were so many dollars in legal fees on the account ledger they sent me I felt I may have a problem and I hinted at other issues. He pushed and I resisted about what they were. I asked the judge if I had to be totally candid and got a yes answer. I told the lawyer that his reputation in the local legal community was pretty terrible so I felt I had to go on the defensive.