Association Related
Why I sued the Homes Association in 2004
(and would do it again if necessary) By: Robert Lowe
The purpose of this article is to set the record straight in regard
to the rumors that some of the leadership and management at Sugar Valley
has apparently been maliciously spreading around the community. Just
last week, someone asked me why I continue to sue the association and
cost us so much money. The slanderous
stories being spread are that Robert Lowe has been filing
frivolous lawsuits against the Association and thus costing the
association's members enormous amounts of money. The purpose of this disparagement is
of course to vilify, demonize, and otherwise defame me in an attempt to
quash my efforts to change the way the association is run. So here is my
side of the lawsuit story with some backup documents to support my
claims.
A few months before the 2004 annual member meeting, I had been attending
the monthly board meetings. At one meeting, I was astonished to
hear the then-president say that the association could do just about
anything they wanted because no one was going to hire a lawyer to
challenge them in court. Later, the January member meeting was held and the
management sent an invoice to every member for a $42/lot special assessment
that they said was passed at the meeting. There were several violations
to the covenants and the bylaws when holding the election for the
assessment increase. Two weeks later, I filed a
lawsuit along with three other members. We claimed the Association
had violated the covenants and the bylaws. We asked that the $42 per
member be refunded to the membership sincel the election had not been
held in accordance to the covenants. We also requested that the court
declare the election for the Board to be
invalid based on the fact that members voting right had been violated.
This was in accordance with a Kansas Statute that states that unless the
Articles of Incorporation state otherwise, every member of a
not-for-profit corporation has the right to vote at each meeting of the
members.
The officers of the Association used the corporation lawyer to defend the case. The plaintiffs were Pro SE (No lawyer). After 10 months of legal expenses and formal denials to the court that the Association had done nothing wrong, even after the Officers and lawyer admitted to the plaintiffs they had incorrectly charged members in a pre-hearing settlement meeting, the Association finally agreed to settle one claim by refunding nearly $80,000 to the members. See the scanned documents by clicking here. Settlement agreement. On the claim that the association had violated our voting rights, the Association convinced the court that under certain conditions, members voting rights for board members are subject to payment of assessments. In other words, the members were refunded an enormous sum of money and the members lost the right to vote for board members on lots with past-due assessments. Because of the $80,000 refunded to members, many of the Association's past leaders still have a grudge against Robert Lowe and the other plaintiffs for their loss of that ill-gotten revenue. Unfortunately, they still don't want to admit that nearly half of the legal costs are attributed to their improper actions and denials. Possibly, a more import question to ask is why the Association felt so strongly that members who have not paid dues cannot vote for board elections that they were willing to spend thousands of dollars for a court ruling. Is it that they are fearful that these non-paying members are going to oust the establishment. Or, is it that the leaders also wanted to lower the numbers needed to establish a meeting quorum so it would be easier to pass certain resolutions beneficial to the leadership.
I believe the lawsuit we filed was not frivolous. According to one article on Wikopedia, A frivolous suit is one without any legal merit. Another definition found on a law website states: A lawsuit or legal argument is termed frivolous if it is filed in spite of the fact that both the plaintiff and his lawyer knew that it had no merit and it did not argue for a reasonable extension or reinterpretation of the law or no underlying justification in fact based upon the lawyer's due diligence investigation of the case before filing (i.e. the well known U.S. Federal Rule 11). When the other side (the Association) settles, you can be assured there is merit in the case.
This case was filed and litigated by the plaintiffs without legal counsel and took two years to complete. We believe that if we had $12,000 to hire a lawyer, the Association would not have won the issue about voting rights in Board Elections. The Association's lawyer was better at getting the District Judge to interpret the Kansas Statute that we claimed was being violated. In hind-site, I would have done one thing differently. I would have tried to resolve the issues with the leadership before filing a lawsuit. The assumption is that the Associations lawyer at the time would have informed the board much earlier that they had violated the Covenants. We have to keep in mind that the Association's lawyer is our lawyer too. He(she) is not the board's lawyer. According to the Supreme Court rules, when a lawyer represents a corporation, he(she) represents the members, employees, officers and the board. In our 2004 case, once the lawsuit was filed, the lawyer had to to his best to defend the case. Unfortunately, it took the lawyer 10 months to convince the 2004 board they couldn't win and convinced them to settle on the covenant issue.
Recently I have sent two letters to the Board president and management with statements that I am attempting to resolve current issues without going to court. In one case I believe the management has allowed the North bathhouse to go to waste and has now destroyed it without good reason except they don't want to maintain it any longer. In another instance, I believe the Association is violating the Covenants by sending invoices to new owners for partial year assessments after they purchased a lot at a county tax sale. I have not yet filed any action with the court. I have sent two letters in regard to the partial invoice issue. One letter was sent in March and another in early November. So far the leadership has not replied. I will wait a little longer, then send a letter to our lawyer informing him of what is happening and that the issue is being skirted. Based on his response, I will take further action if necessary.
I will assure you, that if any court actions are filed against the Association, the lawsuits will have merit and fill be presented and argued in accordance with the law.