HOA members fail to invoke their strongest weapon — Rule 11, representations to the court

 

All states have court Rules of Civil Procedure similar to Rule 11 that govern trial court litigation regarding attorney representations to the court. It’s an ‘affidavit’ as to the validity of their claim, and sanctions for violations of the rule.

Presented below is Arizona’s Rule 11 with my annotations regarding keywords found in all cases, except with Florida where there is just vagueness. The attorney must affirm, under sanctions by the court, that these conditions have been met when he signs the court papers. Violations occur presumably because there was no need to verify the HOA’s claims, since the directors are upright, honest people.

I’ve read a great many cases across the country where violations of Rule 11 have gone ignored by the homeowner, probably due to “professional courtesy” by the homeowner’s lawyer. (Probably not wanting to isolate himself from his fellow lawyers least they retaliate).

I’ve found that many violations seem to center around what the losing homeowner shouts is a bunch of lies, but his lawyer never challenges the HOA attorney’s assertions to “put your money where your mouth is” and show me the evidence. Another major violation that I’ve come across is the filing of frivolous claims that on the face of them lack any support, all centering around the attorney’s favorite pastime of parsing the wording of a statute by adopting overly broad extensions of their everyday meanings.

What comes to mind is the infamous attempt at O. J. Simpsons murder trial defense when his attorney asserted, because the evidence was circumstantial- nobody saw the murders – that some stranger came walking by and decided to kill two people talking in the front yard. C’mon!

In particular, I witnessed a CAI member attorney filing an affidavit by the HOA manager “as a true and accurate statement” for moneys owed the HOA. Handwritten on the affidavit was a claim for additional money. The judge threw claim out in disgust.

Are the CAI attorneys worried? I think so. Revisions to the Rule were made in 2016 and modified in 2017 to invoke subsection (c) – consulting with the attorney, so as to avoid a possible State Bar or court action complaint for the violation.

It’s up to you, the homeowner, to fight for your rights and justice, remembering that your attorney works for you, not the other way around. Speak up or face another loss in court!

Ariz. R. Civ. Proc. R11:

(b) Representations to the Court. By signing a pleading, motion, or other document, the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) Generally. If a pleading, motion, or other document is signed in violation of this rule, or if a party fails to participate in good faith in the consultation required under Rule 11(c)(2), the court–on motion or on its own–may impose on the person who signed it, a represented party, or both, an appropriate sanction. The sanction may include an order to pay to the other party or parties the amount of the reasonable expenses incurred, including a reasonable attorney’s fee, because of the filing of the document or because of the party’s failure to participate in the required Rule 11(c)(2) consultation. In considering an appropriate sanction, the court must take into account the opportunities provided to the person or party violating Rule 11 to withdraw or correct the alleged violation under Rule 11(c)(2).

(2) Consultation. Before filing a motion for sanctions under this rule, the moving party must:
(A) attempt to resolve the matter by good faith consultation as provided in Rule 7.1(h); and
(B) if the matter is not satisfactorily resolved by consultation, serve the opposing party with written notice of the specific conduct that allegedly violates Rule 11(b). If the opposing party does not withdraw or appropriately correct the alleged violation(s) within 10 days after the written notice is served, the moving party may file a motion under Rule 11(c)(3).

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Published in: on June 3, 2018 at 10:02 am  Comments (2)  

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2 CommentsLeave a comment

  1. […] more about court Rules of Civil Procedure, Rule 11  as applied to HOA […]

  2. George–this is terrific–and yes, not enough of our homeowners take advantage–I’d like to include this tactic in the update I make next year, crditing your work, of course. Can I contact you?


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