During the past Arizona legislative session, HB 2153, dealing with a re-assertion that public streets are regulated not by HOAs but by civil government, was defeated by HOA/CAI opposition and a group of HOA special interests, Sun City HOA. Part of the argument for the bill were the realistic incidents where the HOA fined a homeowner for a car parked in front of his home, on a public street — without any attempt to verify whether the car was owned by a member of the household. In other words, in a display of gross injustice and a stark display of HOA power and intimidation, the HOA simply fined the homeowner. (It is well understood that some 90% of the homeowners pay up rather than go to court to fight for their rights).
What is further unconscionable and irresponsible, and a violation of an attorney’s code of conduct, HOA attorneys would simply “pick up the paper,” file the charges against the homeowner, and of course tack on its fees, and proceed in a flagrant violation of Rule of civil procedure, 11(A), which states, in part (emphasis added),
The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
and the Arizona Rules of Professional Conduct, R42, Ethical Rule 3.1 (mimics the above Rule), and ER 3.3, Candor to Toward Tribunal, in part,
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . . (3) offer evidence that the lawyer knows to be false.
Is this legalized extortion by the HOA attorney and HOA board, acting together?[i]
While the bill was before the legislature, an on going court case[ii] was taking place, just brought to my attention. A homeowner was being fined for just such an occurrence. Both the management firm and HOA attorney are Community Association Institute (CAI) members, a trade group that lobbied against the bill. CAI advertises as being the leading educator for the HOA industry and HOA law experts. The Arizona law firm is Maxwell & Morgan where both principles are members of the CAI Community Association College of Lawyers.
Upon being notified of parking violations, the homeowner properly informs the management firm, Rossmar & Graham, that the cited cars are not his, and provides the license plates of his 2 cars (Mar. 28, 2009 email). Subsequently, the board denies his request to remove the fines. According to the homeowner, the attorneys continue and file suit, and then remove their claim for the fines. Undoubtedly, the attorney realized she was in trouble for blindly doing the HOA’s bidding.
Most egregiously and unethically, the M & M attorney still sought attorney fees from the homeowner. This is unconscionable and unethical. The attorney did the board’s bidding, ran up fees, and then found that she was involved in an unsupportable charge, but still sought her fees from the homeowner. The homeowner has to pay for the wrongful acts of the board, and the blind acceptance of the suit by the attorney?
And now we have a former CAI legislative action committee chair, Scott Carpenter (another CAI college of lawyers member), whose firm advises HOAs on possible loopholes in the right of HOAs to regulate parking[iii]. In an inexcusable misstatement of the public parking issue, attorney Patel fails to mention the main issue regarding regulation of public streets by public government, citing only a Missouri case, Maryland Estates v. Puckett, that affirms HOA regulation of its members, but not the public. His reference to checking vehicle ownership is only made in regard to the possibility of illegal towing.
The battle for HB 2153 was precisely to prevent such abuse as occurred in the Wigwam Creek lawsuit. But, Carpenter, in his Arizona Legislative Session blog entry of January 13, 2010, “Authority Over Roadways,” only saw, “If the bill is really about parking, then enforcement of a parking prohibition in a planned community’s governing documents is the enforcement of a contractual provision and does not, in its enforcement, exert any ‘authority’ over the roadway itself.” Clearly this is a biased advocacy statement regarding pending legislation, and hiding behind the imprimatur of an attorney, not addressing or cautioning his readers about the implications regarding the public who are not members of the HOA.
In my Commentary of April 5, 2010[iv] I stated that the purpose of the prolific advisories/advertisements were “to seek and promote loopholes and technicalities in the law and governing documents that would lead to adversarial litigation.”
Something is rotten in Denmark! Shame on CAI, Maxwell & Morgan and Carpenter, Hazlewood. And shame on the Arizona Legislature for seeing no evil in regard to public control of public streets, and for accepting the voice of the CAI attorneys as gospel.
[ii] Wigwam Creek North HOA v. Fuchs, CC: 2010- 49644, Estrella Mountain Justice Court, Maricopa County, AZ.
[iii] “Enforceability of Parking Restrictions”, Nikita V. Patel, Esq., July 9, 2010 enewsletter, Carpenter, Hazlewood, Delgado & Wood, PLC.