Legal-academic aristocrat – advocate exchange on HOA bad faith conduct

I am responding to Mr. Berding’s undated blog entry, First Thing We Do, Let’s Ban All the Bloggers! , a no-name identification of the author of the blog, namely yours-truly. Why is Mr. Berding afraid of mentioning my name? After all, I’m not an attorney. He chose to copy my Commentary rather than to provide a link to my blog, with all those other commentaries.

Ok, it does appear that Mr. Berding is quite perturbed about my statements and quotes from a D & O insurance article that uses the phrases “bad faith,” “criminal intent,” and “fraudulent acts.” He’s upset that I emphasized these words in my Commentary (WordPress Blog). Yet, Berding misleads the readers of his own blog by referring to my Commentary as, “suppose this is a blog.”

Yes, the ugly truth does hurt, Mr. Berding, doesn’t it? And I suppose posting on those blogs, like yours, those CAI blogs, and the Adams Kessler blogs does make them right and important, but forget about those advocate written blogs. Spoken as a true legal-academic aristocrat making Philosopher-King (educated elite setting forth what is good government to the rulers) pronouncements.

Mr. Berding then invokes the legalistic argument of allegations and no proof, as if this were the time and place for legal confrontation. His attitude reminds me of the slogan commonly found on court buildings and other judicial buildings, “Equal Justice Under the Law.” This slogan contains a hidden premise, or assumption, that the law is just and fair. Suppose it isn’t, as advocates maintain? Then the slogan is reduced to a meaningless and empty statement. And those with power derived from these unjust laws just love to argue, “It’s the law! It’s the law! We have done nothing wrong!” And that’s were ethical and moral questions of good faith – honesty and integrity, or an honest intent to act without taking an unfair advantage over another person – come into play.

Our public policy permits the law to inflict financial damages, and the possible loss of all one’s equity in his home, for violating the CC&Rs, yet gives only a “ slap on the wrist” to violations by the HOA board. It permits “after an opportunity to be heard” to satisfy the due process requirement for hearings on violations, there being no explicit statement, as found in the public arena: “by an independent tribunal with the right to present evidence, demand proof and to confront witnesses.” It is absent from the CC&R contractual agreement. And where state legislatures maintain a hands-off posture, providing no oversight accountability or effective enforcement against board violations in a “see no evil, hear no evil and speak no evil” banana republic posture. And justifies this pro-HOA support with, “Well, that’s what the homeowner agreed to. Now he’s just trying to get out of a contract.” What kind of society do HOAs create?

I’m sure he would be shocked, as were the editors at KPHO, the Phoenix CBS-TV affiliate, when they conducted a poll on the PTSD HOA Syndrome (click on image), and found out that 68% of the respondents agreed it existed. Or that an overwhelming 91% respondents in a Truth in HOAs Disclosure Poll said NO to signing an agreement to accept, beforehand, the conditions as set forth in the poll — misrepresentation, fraud, no meeting of the minds, etc. No, after all, his philosophy accepts the belief that “the king can do no wrong.”

As to his CAI remark, all he had to do is to attend these seminars and discover for himself the lack of homeowner protection material presented at these seminars. For example, important info for homeowners can be found in my latest Commentary (HOA boards cannot escape wrongful acts by their managers), information regarding the relationship between the HOA and the management firm. It is is an agency relationship that carries with it immense protections for the homeowner against both the management firm and the HOA board. It’s not on the agenda.

As to misleading and out-of-context statements about the D & O article, Mr. Berding misses my point, which is that the board can be sued and here are the grounds for suing. Also not found in an educational CAI, town sponsored seminar. He discredits my work as “emotional,” “lacking objectivity,” and that I “don’t contribute much that is useful to their chosen subject.” So sayeth the Philosopher-King, or is it the “weavers” from The Emperor’s New Clothes?

Come down from the clouds Mr. Berding, and see what is happening around you. I challenge you to answer the following 4 questions that were posed in March 2006 to Mr. Durso, then Editor of CAI’s Common Ground,

I ask the legislators, the public interest organizations and policy makers to consider the following questions:

1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so. Does “constructive notice”, the “nailing to the wall”, the medieval method of notice, measure up to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

I await your reply, or a reply from any of the legal-academic aristocrats.

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Published in: on October 13, 2011 at 5:20 pm  Comments (6)  
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  1. […] law — bad faith HOA adjudication at OAH: a rebirth of constitutionality, abuse, and legislation Legal-academic aristocrat – advocate exchange on HOA bad faith conduct HOA boards cannot escape wrongful acts by their managers AZ tenants have more AG protection than […]

  2. Mr. Berding’s so-called “response” was disappointing, but then much of what the “industry” produces is disappointing. The article put forth by Mr. Staropoli was his “opinion” one which he is entitled, and one which the majority of owners stuck in these godforsaken monstrosities would agree with as they have no ascertainable voice.

    After bastardizing “self-management” that was the initial concept of this shared type of ownership, the industry essentially finds that it shot itself in the foot by over playing its hand and overcorrecting their own ideals. How much can the industry possibly suck from homeowners, that is the bottom line.

    Homeowners have been relegated to the status of bank deposit withdrawal slips, to be ready at a moment’s notice from which management personnel and their cohorts, board directors, can tap into at any time. Now that the economy has dried up, and owners are struggling to stay afloat, it has become harder for these parasites to manipulate owners as easily as they did before Mr. Staropoli came on the scene. Though much of that still goes on, with the internet owners can seek out alternative information that is contrary to crap they’ve been fed by stupid or illiterate management personnel and association-type attorneys whose words have been treated as if God just spoke. Not anymore.

    Mr. Berding’s “blame the victim” mentality as the premise for what he wishes to pass as an analytical treatise, is laughable at best, embarrassing at the least. It is indicative of what management companies and association-type attorneys have been attempting to ingrain in boards across the nation, that is, blame the victim homeowner for whatever the problem is.

    With an industry lobby that is well fed and the mandated assessments rolling in without accountability, Mr. Berding appears to be (a) blaming the potential of the downturn in business opportunities or (b) lower assessments that owners have to pay, for his spilt milk mentality. Cutting into profits?

    Frankly, the next time Mr. Berding or his ilk wish to throw up on paper, they may want to reconsider the subliminal effect that will be uncovered from their stream of consciousness. Gosh, business must be really bad for a seasoned attorney like Mr. Berding to donate his time and acumen to such a show of lowliness.

    • “Blame the victim homeowner for whatever the problem is” reminds me of arguments that I’ve heard from time to time. “If only the homeowners would follow the rules and regulations we would not have these problems.”

    • Beautiful. Excellent.

  3. You are quite generous when you call Berding a legal academic. His article reads as nothing more than sophistic logic that is blind to the real problems in Community Associations.
    Their ship is sinking, and he is critical of the folks pointing at the hole in the boat.
    Of course the Legal service provider’s obtuse behavior (and SO many others including our perpetual fund raising legislators) becomes more understandable when you realize that their income is directly proportional to the amount and extent of the pathology in our associations.
    Lessen the problems and you most certainly lessen their income (and ability to ‘influence’ our legislators). It is almost comical to read their “emperor is fully clothed” nonsense.
    You know the truth, please keep speaking it!

  4. Mr Berding’s article is no more or less “news” itself than is yours, yet he still published it today. Why must discussion of a topic on a blog be considered “news?” Maybe it is, maybe it isn’t, but it’s still worthy of discussion.

    I am struck by Mr Berding’s admonishing you for your headline by saying “The choice of words in the first sentence of the opening paragraph lays bare the intent of the writer,” while failing to realize he has done the same thing. Is Mr Berding’s headline, “First Thing We Do — Let’s Ban All The Bloggers?” to be taken at face value? It’s not designed to be attention-catching or tongue-in-cheek, is it? Of course it is. That was his point. He made his point while criticizing you of the same thing.

    I’m sure Mr Berding isn’t surprised to hear that some managers, board members, and their lawyers do abuse homeowners. In fact, an employee of his has done just that with a letter she wrote to a homeowner:

    http://www.edgewaterisle.com/south/2007-1107_sandra_bonato_letter.html

    There was never a call to a police department over a letter sent via UPS. Why would there be? Is sending a letter via UPS now suddenly a crime we should worry about? The police certainly weren’t. Such activity could only be worthy of police action if there were a restraining order in effect, right? He’s a lawyer, and he should know that, but Mr. Berding has an agenda, same as everyone else. (One could argue that the lawyer’s agenda is a financial one.) But I digress….

    Mr Berding suggests that not supporting homeowners associations is bad. He says “…the blog poster suggests that supporting homeowners associations is not good.” We know that for Mr Berding, supporting homeowners associations IS good. It’s been very very good. Good enough to employ a whole cadre of lawyers in Alamo who don’t live in homeowners associations while lobbying in Sacramento for those same homeowners associations that they won’t live in themselves.

    Mr Berding’s comment “that blog posts, email, and social networks are an inexpensive and widely available means of communicating with large numbers of people and make it easy for pundits of every stripe to be heard.” Yes, thank you. That’s because homeowners association boards of directors often refuse to allow a homeowner access to a roster. Regardless of it being allowed in the bylaws or Civil Code. His law firm stokes the flames of dissent when an owner wants such a document, and his law firm makes money by stalling and refusing. Homeowners have been left no other alternative BUT to turn to the internet to communicate because boards say “no” reflexively. And, Berding and Weil loves it. They scour the “agenda-driven advocate” sites looking for ways to “shut it down” because the board wants it done.

    And finally, Mr Berding’s comment that your post is “just invective—a ‘rant’ if you will,” is interesting. Because so is his. And that’s OK. He is entitled to express his thoughts as much as we are to ours. And we’re not going away, and we’ll continue publishing, and he’ll continue making money off homeowners who live in associations. And so it goes.


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