My lawyers wrote up a Motion for Summary Judgment that may cause the HOA to remove all the liens on our vacant lots and never collect another penny from us.
I also have a hearing Monday, September 9th in regards Russo’s Motions to Dismiss my counterclaims (see below). I don’t understand how the Judge could dismiss my counterclaims; if he did, he would still have to face the same arguments in my Answer to their Complaint.
Hearing is at 11am . . . I will amend this blog-post.
EDIT: After the hearing
Bottom line is: We have to join other Unit 5 lot-owners in the Complaint and join the other assessment lien-holders to the Complaint. Russo’s Motion to Dismiss was denied. . . . I think we all need to tell Mr. Russo: “You’re not going to cheat us out of our investments!”
If you have a lot in Unit 5 you will receive a copy of the Complaint and will be asked to sign an Acceptance of Service. You will then have to file an Answer to the Complaint telling the Court your side of the story. (Liens/contracts expired per statutes of Limitations, etc..)
Russo says we are being “unjustly enriched” by the improvements to our lots. Any lot will improve by development next door, that’s how Dennis Deconcini made all his money — except for the CAP canal where he had prior knowledge of the canal’s route.
In Unit 4 (where the golf-course is), someone brought electricity and water to my lot-line without ever contacting me.
The Judge kept mentioning settling out of Court, especially since I “only paid no more than $1000” for my lots and got them through tax liens but the prior majority owners got most of their lots for $1000 through tax lien foreclosure.
He also expressed doubt that Special Assessments can be assigned by the HOA to 3rd parties — in California, a statute prohibits an association from assigning liens:
Under Civil Code §1367.1(g) an association may not “voluntarily assign or pledge the association’s right to collect payments or assessments, or to enforce or foreclose a lien to a third party. . .” There is an exception to this rule when the association assigns or pledges the right to collect or foreclose to a financial institution or lender as security for a loan obtained by the association. (Source.) (It’s now Civil Code 5735.)
The Judge also mentioned Rule 1 of the myriad Rules of Court, which says to settle in a timely, inexpensive and just manner:
These rules govern the procedure in the superior courts of Arizona in all suits of a civil nature whether cognizable as cases at law or in equity. They shall be construed to secure the just, speedy, and inexpensive determination of every action.
The Judge made a long ruling (see below) ordering the Plaintiff to provide us with names of Unit 5 lot-holders as well as the names of assessment lien-holders, I will have to serve each of them a copy of the Complaint; hopefully, they will sign an “Acceptance of Service” form and mail it to the Court and I won’t have to spend a bunch of money serving lot-owners & assessment lien holders. You will then have 30-days to tell your side of the story or allow my lawyer to represent you.
It’s disappointing. I’d rather the Judge denied their Motions and prepared to hear our Summary Judgment but the Judge will have a status conference in November round election time.
I didn’t get to ask any questions of Russo about the Board Meetings, I’m not going to pay the Unit 8 assessments or dues. It’s like: the purpose of the HOA is to steal lots from you.
Judge asked a lot of good questions and seemed to be fair about the burden imposed by having to join these other parties.
On August 2nd, PRD Investments (Russo), Tucson Acquisition (A company owned by prior majority owners) and NT Properties (Russo) sold 51 lots in Unit 5 and Unit 2 to DR Horton for $1,715,000 = $33,600 ea. (Recorder’s office Sequence number 20132140169).
I think it would be a good idea bringing in other parties but I also think: if you want an HOA fine but leave me out of it!