I sued them in Small Claims Court and lost. Judge awarded insurance company attorney legal fees. I sent COA a check. (I thought award was to COA but my attorney, much later, pointed out that it was not.) COA denied ever receiving it. I offered to write another if they would stipulate that they never received the first one. They ignored.
Insurance company (US Liability) was not going to try and collect from me so COA had insurance company assigned the award to them (although from paperwork it appears they only waived their rights to the award). They lied to myself and other homeowners that this ever happened. Have emails to prove the lies.
They then told me they were going to treat as Individual Personal Assessment. I requested hearing as governing documents affords me. They denied hearing.
They sent letter saying payment due 1/29/06. Declaration says no legal action until debt 60 days past due. They filed foreclosure proceedings 2/27/06. This is when I hired attorney and found out award was not to COA.
My attorney presented over 160 exhibits to support my case and all the violations of COA governing documents and Colorado Common Interest Ownership Act (CCIOA). These included:
(a) having mailed check to the COA on August 27, (affidavit asserting same was provided);
(b) when advised that check had not been received by the COA, made numerous offers to write another if the COA would assert in writing that it had not received the first check, (affidavits by Board of Directors submitted stating that it was To my understanding, Mr. Marotta refused to pay his debt owed to the 1200 Vine.., the Board of Directors has never denied under oath that they did not receive Plaintiff's check);
(c) received a letter from the COA requesting payment by January 29 (the COA Declarations state that the COA cannot take legal action until a debt is 60 days past due and hence legal action was a violation of the COA Declarations);
(d) the COA had failed to provide late notices as required by its Declaration, By-Laws, Rules & Regulations, and/or Policies;
(e) the COA, in treating the judgment as an Individual Personal Assessment (IPA), had exceeded its authority to assess as specified in its Declaration;
(f) after advising that it was treating the judgment as an IPA, refused to grant a hearing as required by its Declaration, By-Laws, Rules & Regulations, and/or Policies;
(g) the COA was in violation of numerous provisions of the Colorado Common Interest Ownership Act (CCIOA) including but not limited to acting in good faith with respect to numerous issues related to the foreclosure action;
(h) the award by the Small Claims Court was to the law firm of Wood, Rymes and Hames and not to the COA (this was supported by trial transcripts and was clearly so indicated on the case file jacket);
(i) Wood, Rymes and Hames was paid by the COA
insurance carrier, the insurance carrier waived all claims against homeowner and the COA, entered into an agreement with their insurance carrier to establish a claim against homeowner and attempted to conceal all this from homeowner.
(j) the COA then entered into an agreement with the insurance carrier to collect the judgment while not being assigned its insurance company's right of subrogation;
(k) homeowner, as an insured, was protected against subrogation;
(l) Small Claims Court is limited by statute to awards of $7,500.00 or less;
(m) the Small Claims Court lacked jurisdiction since the court itself asserted that the initial case it heard was injunctive in nature;
(n) the COA failed and or limited its responses to repeated requests for disclosures, production of documents, interrogatories, and admissions;
(o) the COA acknowledged in a Board of Directors meeting of the destruction of COA records which had been sought by homeowner;
(n) as well as numerous other irregularities and defenses.
Case No. 06CV2358 was assigned to Judge Mullins who awarded summary judgment to COA on 6/7/07 without a trial. Summary judgment means that even though he believed EVERYTHING I said, a jury would not have found in my favor. What would you have found if seated on that jury remembering that EVERYTHING I said above is true?
An appeal was logged with the Appellate Court, Case No. 07CA1374, who upheld the lower courts ruling. Judge Terry wrote the opinion with Judges Vogt (now retired) and Lichenstein concurring.
Of particular note is their statement: Regardless of whether... Mailed the Association a check for payment of the assessment, it is undisputed that funds were never disbursed to the association. Thus... Never satisfied the debt.in other words, if your COA/HOA does not cash your check, they can then foreclose on you! How do you like that ruling?
The Colorado Supreme Court was then petitioned, Case No. 08SC918, but they refused to hear the case.
It should be fairly obvious from the above that homeowners are totally at the mercy of corrupt COA/HOA organizations and that the provisions of CCIOA are there for their protection and not the protection of the homeowners themselves. This is particularly true in any association that is represented by HindmanSanchez who are the lowest form of attorneys possible.
It is time for homeowners in COA/HOA associations to do something to reform not only the rules governing COA/HOA associations but also to reform the judicial system. Judge Mullins makes a totally absolutely incorrect ruling (and is protected by judicial immunity), the Appellate Court compounds the error (and is protected by judicial immunity) and the Colorado Supreme Court says it can't be bothered trying to protect the rights of homeowners and due process requirements of the US Constitution (they didn't say that exactly but that is exactly what they inferred).
COA/HOA associations have to be placed under the authority of the Real Estate Commission. The courts refuse to be the watchdog they are supposed to be or else they side with the fellow attorneys to enable them to bring suit to line their pockets with homeowner money. Of course, they realize that one day when they leave the bench for private practice they will be able to do the same thing themselves.
Judges have to be held accountable for such obvious miscarriages of justice. Judicial immunity allows judges like Mullins (it has been related to me that Judge Mullins is somewhat lazy and also not well versed in real estate law) to ignore the facts of the case and ease their workloads by "passing the buck" regardless of the impact on the person who is being wronged. The Appellate Court obviously did not review the case either or if they did they are totally incompetent.
What do you think?
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