Rogue Boards

I’ve been contacted recently by a couple of concerned homeowners about their HOA boards.  And while I hesitate to label every board complaint as a “rogue board”, these two situations are eerily similar and troublesome.

One of these properties is a typical smallish condominium community in the Phoenix, AZ metro area, and the other is an upscale luxury-home/club facility in Chapel Hill, NC. 

The Arizona condo owner has been in contact with me for about 10 months, concerned about a number of things relating to his association’s board, including how a number of board members apparently don’t live in Arizona (though they own property in the condo), and how one board member’s spouse appears to own the management company that runs the place.  His concern goes further into the lack of transparency of the board in meetings and financial reporting.  Having received some guidance from a few sources, he has made requests for documents, but not without considerable back-and-forth between himself and the association officer/board member who seems to be running the show.

The Chapel Hill contact is recent, and came through the HOA Perspectives web site.  In her discussion, I heard similar concerns of potential financial misconduct and possible collusion between board members and the management company.  She has sent me a 3 page letter she intends to distribute to the community (see a copy here: A Crisis of Confidence).

What strikes me about both of these situations is the powerful position the board members take with regard to elections.  Conversation from both of my contacts indicates some level of inappropriate election activities, from “control of votes” to canceling elections and simply appointing replacements.  Both also suspect some level of financial shenanigans, with an inability to view bank statements that support one board’s claim to the assets on hand, to duplicate invoices and work paid more than once (information from paid invoices obtained from the vendor).

Both of these situations seem to rank Level 4 in my “HOA Levels of Hell” podcast.

In situations like these, I suggest that fighting the current HOA board is not worth the effort. In many such cases, you will simply be dragged through the mud and labelled as a troublemaker by those in power — including the board, the management company, and any complicit vendors, which could range from the landscaper to your association attorney.

My recommendation is a tough one, because it requires restraint and perseverance.  There’s no quick fix or instant gratification here!  In my opinion, your approach has to include the following:

  • You absolutely must become an expert in your governing documents.  If you do not become “the expert in the room”, you will be crushed by people who act like they know the governing documents, but don’t.  You don’t have to be able to quote paragraphs, but you need to know what they say and what they mean.
  • You have to gather facts, evidence, copies of financial reports, public records, meeting minutes, and anything else you can get your hands on.  Don’t make accusations (this is the “restraint” part I mentioned above). Request, don’t demand. Thank people for their help.
  • You must write convincing, fact-based, no-rhetoric communication which describes the situation and the negative impacts to your entire community, if the situation is not resolved.  Facts! Not accusations.  “Who did what and why” is not important, only “what was done, and what should have been done.”
  • You must distribute this communication to your fellow association members — respectfully but regularly, in every possible venue you can.  Expect this to cost some money, but it doesn’t have to be expensive.  Web sites are cheap, but you’ll want to send postcards or hang flyers on door handles.
  • You have to find people who have the skills and experience to run the association, who have the time and inclination to take on the existing power structure.  This might be you, but you need to be honest with yourself about your own ability to run the association.  Find leaders with business experience and a deep sense of community.
  • Then — and only after all the above have been done — you have to launch an election campaign to take over the board.
  • And your job isn’t done: You then have to work with (or on) the new board to investigate and document the current state of the association’s affairs, and consider which of the current slate of contracted vendors must be replaced.  Then there are Requests for Proposals, evaluations of proposals, and vendor selection, followed immediately by transition management and oversight.

You thought it would be easy?  No.  But your home, your community, and your friends and neighbors are worth the long-term effort to transform your association into a well-run community-focused, neighbor-friendly business and corporation.

Or you can stay and be disgruntled.  You could move, but you’d have already done that if you could easily do so.  I hate moving… I’d rather take over the board and do it right.

Posted in Viewpoints

Legislative Summary from AZHOC

Many of you may know Dennis Legere, who has been the driving force behind the Arizona Homeowners Coalition, another web site dedicated to supporting the interests of homeowners in HOAs.  Dennis is a registered lobbyist in the state of Arizona, and spends a lot of time talking with legislators on behalf of homeowners across the state.

If you have not yet joined AZHOC — there is no cost to join, just sign up for their mailing list — please do so.  When you do, several things will happen:

  • You’ll get alerts on actions taking place in the legislature where you can make a difference by writing directly to state legislators.  Your voice does make a difference!
  • You’ll get occasional summary emails about the status of legislation, with recommendations for what you can do to help support those bills he agrees with and what you can do to help defeat the ones he doesn’t.
  • Your support of AZHOC will lend Dennis more authority when speaking with Arizona legislators (there are currently 238 subscriber/supporters — it would be great to have thousands on this list!).

See the latest Email that went out this morning, with Dennis’s rundown of the 11 bills that have HOA impact, and what you can do to help.  There’s a “Subscribe” button in the upper left hand corner of the web site, and you can select which of the newsletter categories you’d like to receive.  You can unsubscribe at any time, and no unrelated spam/junk.  Dennis’s writing style is a little long-winded… but it’s because he does a great job at explaining the potential impacts of bills.  Worth the read.

You can subscribe to the AZHOC mailing list directly here.

Posted in Home Page

Catching Up…

Greetings, everyone!

It’s been over a year since I posted here – time has flown by for me! I was Secretary of my association starting in October 2017, and as of October 2018 I’m now President.

I’ve continued taking a deep dive into historical documents, having obtained CDs with documentation from two prior management companies. I’ve inquired deep into our management company to understand more about our financials, as well as how to customize the horrid-sounding violation notices they send out on our behalf. And I’ve uncovered a few process-related issues that I’m now pressing the management company to fix. Fortunately, they’ve been very accommodating.

The year also had an interesting board meeting where one board member basically started a cursing, accusatory rant that halted the meeting less than ten minutes in. Thanks to many of our very reasonable residents, this board member was not re-elected, and it’s my opinion that the resulting board complement is well suited to getting things done in the coming year.

I’ll pass along another article I wrote entitled “HOAs: Corporations, And Neighbors“. If you want to reach me for comments, use email.

Posted in Home Page, Viewpoints | 2 Comments

SB 1080 and ARS 33-1807

See this post over on the StopSB1080.com blog link to read more about what ARS 33-1807 already says about HOAs foreclosing on delinquent homeowners.

Posted in Viewpoints

AZ HOA Foreclosure “Reform” Proposal

Arizona state Senator Kavanagh authored SB-1080 which shortens the time restrictions for an HOA wishing to foreclose on a delinquent homeowner from one year to six months, and removes the delinquent dollar value restriction which was $1,200.

Basically if this bill passes, your HOA can foreclose on you if you are delinquent by any amount, for as little as six months.

Apparently, the Senator thinks that’s what HOAs really need: more power, more greed, more ways to screw the neighbors.

Who asked him to float this bill?  How many HOAs out there are chomping at the bit to push their neighbors out of their homes?

In my opinion, this has to be coming from management companies and “HOA Lawyers”.

Write your state representatives in the House and Senate, along with Senator Kavanagh, and tell them what you think.  I don’t hate anybody enough to want to force them into foreclosure for $1 in six months.  Not even lawyers or legislators.

Posted in Current Issues, Home Page, Viewpoints | Tagged , , , , , | 2 Comments

Robert’s Rules – Helpful, or No?

I’ve had several conversations recently about whether the use of Robert’s Rules of Order is necessary in an HOA meeting. Some people like the idea, and some people hate it. Continue reading

Posted in Current Issues, You BLOG | Tagged , , , , | 3 Comments

Association Members Are Your Neighbors!

What appalls me most about the negative press around HOAs is how some Board Members – either individually or collectively – treat the Members of the Association like crap.  The Members aren’t your competitors; they’re not your enemies; they’re your neighbors!  Why can’t they be treated that way? Continue reading

Posted in Viewpoints, You BLOG | Tagged , , , , , | 3 Comments

Elections – My Recent Experience

[Updated 10/05/2017 with additional Eligible Votes information.]

For those of you that took my survey on Board Elections – thank you!  I still owe you a summary of the results, which I have to say were very interesting.  I’ve also been unusually busy the last few weeks with some consulting work (custom programming and data analysis).

But I’ve also been “recovering” from my own HOA’s elections last week. Continue reading

Posted in You BLOG | Tagged , , , , , | 1 Comment

Do You Know Where Your Documents Are?

Something funny happened in my HOA this month.  Not “funny – ha ha”, but “funny – uh oh.”

My Association was incorporated in June of 2004.

I bought my home in this neighborhood last year in May 2016, and as part of the obligatory home-buying paperwork tsunami, I received a number of items from the then-current management company of the HOA as required by ARS 33-1806.  Among them was a copy of the Association’s CC&Rs and Bylaws.  The copy of the CC&Rs had the stamp of the Maricopa County Recorder’s office, but the Bylaws were not so emblazoned.  My assumption was, of course, that “these are indeed the Bylaws of the Association”.  As it turns out, this was the same copy being sent to all new owners in the neighborhood at the time, and since, and probably for some time before.

Further complicating things, this copy of the Bylaws had a section at the bottom for endorsement by the original Secretary of the Association to attest that these were, in fact, the approved Bylaws.  But the copy I and other new homeowners were receiving was not signed.

Fast forward to sometime in the last month or so.  Apparently someone (probably at the management company, but some details are hard to come by) tried to locate an “officially sanctioned” copy of the Bylaws among the Associations papers, both hard-copy and electronic.  None was found.  Questions were asked; an attorney was consulted.  (None of this was discussed in an open session meeting, and while I don’t really know any details, I’m assuming the actions in this paragraph occurred.)

At the July board meeting (I’m not on the board, but I have attended every meeting since moving in), our management rep said something about “the attorney said he would create Bylaws” for a stated sum, which I thought was odd, but never really had an opportunity to ask anyone about it.

Then yesterday, when I wrote to our management rep referring to a section of the Bylaws about elections (ours are upcoming in September, and yes, I’m a candidate), her response was:

Technically you don’t have legal Bylaws since they were never approved and signed.

WHAT?!?!  Don’t tell me the Association — now in it’s 13th year — has been operating according to a set of Bylaws, and now all of a sudden they “don’t exist”!!  The Association (in the form of the management companies) has been sending this to new homeowners telling them “this is the way we do business” for years, and they’ve been using the Bylaws in all the ways Bylaws ought to be used!

After seriously questioning the situation in my Email response, the management rep replied again, writing: “the attorney’s opinion is they [the board] cannot run according to what the Bylaws states since they were not approved.  I did talk to the Board about having the attorney draft up new Bylaws to approve and sign so they will be on the up and up.”

I was flabbergasted, to say the least.  Expletives were said.  Blood pressures rose.

Between yesterday afternoon and this morning, I tried numerous avenues to resurrect a copy of the “official” Bylaws:

  • I contacted the developer, DR Horton.  I was told they purge such documents after 10 years, and gave me the number of someone else to call.  I left that person voice mail, but have received no callback.
  • I searched the Arizona Corporation Commission files on our Association — again, having done this search a few months ago when I wondered about the presence of an executed copy.  Bylaws are not required to be filed with the AzCC, and indeed were not.
  • I searched the Maricopa County Recorder site (yet again – also not my first time), looking at all documents posted with our Association name attached, as well as numerous documents associated to DR Horton in the relevant timeframe; nothing there either.
  • I’m pretty good friends with my realtor, but he really didn’t have any useful guidance on short notice, but shared my concern and offered to ask others in his office if they had any suggestions.
  • An acquaintance in the Arizona HOA-homeowner activist space suggested searching the Corporation Commission (already a dead end), but then also suggested making a Freedom of Information Act (FOIA) request of the IRS for any records submitted by the Association relating to their filing for nonprofit status.  Turns out even the IRS doesn’t want a copy of your Bylaws.
  • I wrote an Email to the original management company from 2004 through the Association’s first transition in mid-2014, hoping that they would have something archived — but no return message from them either.
  • I even contacted a recent acquaintance of mine who is a Parliamentarian about the situation.  After some lively discussion about Bylaws in general, he had some ideas on how to proceed if none are found — but nothing new to add regarding a search for them.

My next approach (spoiler alert: which worked!) was to search the Maricopa County Assessor’s GIS Maps web site for homeowners who had moved into the neighborhood in the first couple of years of its existence, and whom I had met or chatted with around the community.  My thought was that surely they would have received an executed copy from the original developer back in the early days.  I found one person I had befriended when hanging door hangers in the neighborhood about the Block Watch program back in January.  I sent her a message on NextDoor.com, explaining the situation and asking if she might have a copy of the signed document.

Much to my amazement, she replied within an hour:

Well, to say you have good timing is an understatement. I have been cleaning out closets in the past few weeks (we’ve accumulated some “stuff” in 12 years) and came across all of our purchase documents. I set them aside just last night thinking I should go through them and thin the pile.  So, you’ll be happy to know, I have a signed copy of the bylaws.

I’m told soon the official copy will reside on the management company’s web site.  Unfortunately, our board has stopped maintaining their separate site with community documents.  (The board even failed to elect a Secretary mid-year when the previous President, Secretary, and Treasurer each resigned.)

So the moral of the story is that HOA Boards — especially the Secretary — have a fiduciary duty to maintain copies of all important Association documents, but in my opinion they rely too much on management companies to do this for them.  As a result, important documents often go missing, especially when Associations transition between management companies.  I believe copies should be kept separately by the Association, and that Associations should audit the documents maintained by their management company.

Where are your official copies of governing documents?  “Trust but verify” would seem to be a good approach.

Posted in Home Page, Viewpoints, You BLOG | 5 Comments

Board Elections – A Survey

I think most Associations tend to hold their Annual Member Meeting and their Board Elections at the same time, and I have a sense that most Associations elect officers in the fall — or at least that’s what I’ve heard from a few folks I’ve talked with.

So with elections on some people’s mind, I thought I’d put together a brief survey about Board Elections.  There are 12 questions plus a few of the usual demographic items at the end, and should only take you a couple of minutes.  I hope you’ll participate!

Take the HOA Board Elections survey by clicking here.  Please forward this link to others you know that might be interested.

At the end, you can choose to receive an Email of the compiled results.  I’ll also share some of the results here on HOA Perspectives.

Thanks for helping out!

Posted in Home Page, Surveys | Tagged , , , , | 2 Comments

Under New Management

You might have seen JCT’s post a short time ago about seeking someone to take over the HOA Perspectives web site.

I am that volunteer.  With a good bit of Word Press experience and HOA exposure, I hope to provide a similar viewpoint and tone as you’ve become accustomed to reading.

Expect to see very few changes… but maybe a few additions.  For example, I’d like to extend the reach to a few other social media venues, like an email list, Twitter, and occasional surveys for input.  I’ve also registered HOAPerspectives.com and pointed it to the WordPress-hosted site.

If you have suggestions, send them to me via email:

Ray at HOAPerspectives.com.

Posted in Home Page | 3 Comments

Community Manager ordered to pay $1.6 million to HOAs

CONTACT 13

Darcy Spears (KTNV)

6:00 PM, Jul 7, 2017

Dozens of Home Owners Associations are out a ton of money. Over a million bucks all together. Contact 13 finds out who took it and how they got away with stealing homeowners’ money. Las Vegas, NV

Community Association Managers are supposed to look after homeowners and their HOAs.  But the Nevada Real Estate Division says one manager was only looking out herself.

Contact 13 obtained this order from the Commission for Common-Interest Communities.  It says community manager Leslie White defrauded 34 HOAs out of more than $1.6 million. White took much of that money after surrendering her community manager certificate. 

Real Estate Division investigators found fraud and hundreds of violations of state law with the two businesses white ran under the names Associated Community Management and Path Community Management.

The state says White used electronic signatures to transfer money that was not approved by HOA boards. And one of her companies “…was paid in excess of its contract for virtually every association it managed.”  

White has 60 days to cough up nearly $3 million dollars.  That includes fines and fees to the state and restitution to the HOA’s. 

We tried to contact her, but the phone numbers we found were disconnected. 

The case has been turned over to the Attorney General’s office for possible further action. 

Below is the list of Home Owners Associations impacted in this case:

Alterra Homeowners Association:         $19,592.71

Amber Wood Homeowners Association: $36,535.33

Avignon Homeowners Association: $67,070.70

Avila Court Homeowners Association: $22,980.36

Bella Lago Homeowners Association: $83,900.14

Benton Homeowners Association:         $30,485.73

Bonita Vista Homeowners Association: $34,893.77

Brighton Homeowners Association: $35,873.21

Calabria Homeowners Association: $36,353.90

Carmel Ridge Homeowners Association: $42,346.78

Centennial and Lamb Association: $75,958.23

Chatham Hills Homeowners Association: $61,536.65

Cherry Lane Homeowners Association: $81,207.34

Country Glen Homeowners Association: $27,208.24

Crestwood Homeowners Association: $9,000.00

Cumberland Homeowners Association: $26,448.00

Greenwood Homeowners Association: $19,650.00

Hillcrest Homeowners Association: $6,980.00

La Siena Homeowners Association: $56,763.41

Manchester Homeowners Association: $159,495.74

Mesa Verde Homeowners Association: $36,175.54

Moreno Homeowners Association: $91,114.62

Murano Homeowners Association: $62,897.04

Newbury Homeowners Association: $75,795.43

Paloma Homeowners Association: $35,063.94

Pinecrest Homeowners Association: $43,813.86

Sheffield Homeowners Association: $21,971.60

Somerset Landscape Maintenance Association: $15,653.17

Sterling Court Homeowners Association: $53,856.06

Sunrise Valley Estates Homeowners Association: $87,050.91

Terraza Homeowners Association:         $32,350.00

Trailwood Homeowners Association: $13,622.50

Whisper Rock Homeowners Association: $59,822.42

Posted in Viewpoints | Tagged

When an HOA totters financially

Arizona Homeowners Forum

Posted: 05 Jul 2017 07:44 AM PDT, Reposted 7/6/2017

What happens to a Homeowners Association as it totters financially is fascinating.

In the case of the Crossings at Willow Creek, recent hearings in Yavapai County Superior Court confirmed that there is no bankruptcy alternative. That’s because a Homeowners Association is a corporation in name only. The members are on the hook for everything as it’s really a partnership.

We as property owners have scheduled a Member’s meeting on July 17 at 5:00 at the Community Room at 1235 E. Gurley St., Prescott to appoint a Board, without which Judge Mackey is almost certainly likely to appoint a receiver soon. This would be analogous to a mentally ill person with millions in the bank having their bank accounts run down by attorneys and other parasites.

Carpenter Hazelwood, who resigned as attorneys for the HOA last year, triggered this by arguing for a receiver to be appointed when faced with records requests pursuant to a simple AZDRE Order.

It’s already acknowledged properties in the Crossings are worthless because they can’t be sold. What then could homeowners be responsible for above that? Can their property values go negative?

Remember there is no insurance for the HOA now. Under a worst-case scenario, the liabilities to the HOA, and then the members, could easily amount to $20mm or more, especially if an accident takes place in the wash. That’s $250,000 each lot. So yes, property values could go negative.

It takes a lot of dot connecting to figure out what is involved here and we have been doing that for almost 10 yrs. So ahead of the meeting, I will be taking the dots one by one daily to make things clearer. This will be done via the blog at www.thecrossingsatwillowcreek.blogspot.com We’ll also have the documents pertinent to the case available soon via links posted there

A couple of points

  • The Meeting is technically members only but some contractors with construction deposits are welcome
  • Any member wishing to appoint an agent, especially an attorney, must have that approved ahead of time by us.
  • Out of town Press will be welcome but need to be accredited first. Please do that by email to jasellers123@gmail.com
  • There is a current investigation underway by Detective Brazell, Badge #350, at the Prescott Police. If you have relevant information to give to him you would not wish to share with us, his number is (928) 777-1925
  • Conversations with him leave me totally confident the meeting will be safe and not masked by threats as has previously occurred.

Feel free to post questions or comments on the blog as it will not be censored except for totally outlandish comments

SIMPLY ENTER YOUR EMAIL ADDRESS ON THE BLOG TO RECEIVE DAILY POSTINGS

ONLY GOOGLE WILL KNOW YOU ARE WATCHING

A mere selection of issues to be addressed daily will include:

  • Why could the City of Prescott file bankruptcy over this?
  • Why are the US Supreme Court 9thCircuit Rulings in the Kayanne Riley case so relevant?
  • Why there will be no Big Chino without fixing the Crossings – properly?
  • Why was the subdivision ever built in a floodplain anyway at the intersection of all the City’s water mains, including those for the Big Chino, Major Sewers, a main road, and a wash carrying more water than the Colorado River in flood -10,000cft/sec+
  • Is Carpenter Hazlewood looking to collect fees or did something happen with a recent foreclosure they would like to cover up?
  • Why is Chubb Insurance engaged with high powered attorneys? – http://www.manningllp.com
  • What is the role of Metro Phoenix Bank here?
  • Where is Justin Scott?
  • Where is Kathleen Yamauchi?
  • Why did the Board, Attorneys and Management Company all resign on the same day?
  • Who jumped ship first and why?
  • And a lot more dots!

John Sellers

Posted in Viewpoints | Tagged , ,

Defining HOA-LAND

An important article, click to open and view the following link:

https://pvtgov.wordpress.com/2017/05/29/defining-hoa-land-what-it-is/

Posted in Viewpoints | Tagged , | 1 Comment

HOA Attorneys: Lacking Moral and Ethical Perspective

Source: HOA Attorneys: Lacking Moral and Ethical Perspective

Posted in Viewpoints

Arizona HOA Honey Moneypot

Reposted from ArizonaHOA.blogspot.com

   The “Arizona HOA Honey Moneypot“ – why all these problems in Arizona HOA’s?

  • Honey attracts bees. Money attracts the worst of behavior
  • It’s the cash stupid!
  • We estimate that $3bn of CASH is sloshing around in HOA bank accounts owned by YOU
  • Worst example which went unnoticed in the excesses 2008 financial crisis
    • Community Association Banc (CAB), a division of First National Bank of Arizona (“FNBA[1]”) attracted over $1bn of deposits in the months prior to 2008
    • Only $75mm was funneled back to communities
    • Only the FDIC knows where the rest went
    • They used wholesale deposit harvesting via HOA Management Companies
    • Few Boards even knew or know where their cash is
    • The only credentials of the President of CAB, a $1.5 billion plus bank, were membership of CAI, HOA management, and ownership of Las Vegas nightclub
    • I’m not making this up – See this – click HERE
    • When FNBA went under in the shadow of IndyMac, the Federal Government injected $862mm of FDIC taxpayers money
    • In a highly unusual step, they also bailed out UNINSURED DEPOSITORS
    • Many Arizona HOA’s had millions in excess of the FDIC insurance limit
    • We believe the decision was political
  • What this got to do with you?
    • Be aware there are powerful dark forces at work in the HOA industry
    • Few Management Companies, and none of the so called specialized HOA Law firms, have incentives to promote transparency
    • The Edge at Grayhawk lost $2.4mm in fraud because nobody was keeping an eye on the Management Company
    • CAI , a national organization, has huge lobbying power because of their access to money

 

[1] Not to be confused with National Bank of Arizona

Posted in Viewpoints | Tagged

AZ HOA abuse

In a nutshell:
1. A homeowner with two lots in an Association falls behind about two years back, $1,000 per lot
2. They pursue him for only one lot BUT he pays the amount for both..$2,000
3. They then pursue him for $1,000 for the other lot
4. They successfully foreclose for $1,000 plus legal fees. Back to $2,000
5. They sell the lot for $18,000
6. He neither received the excess nor does the  $16,000 show in the HOA accounts.
7. So where did it go?
8. Gets better.
9. They also filed a lien on his house where he lives. Not in the subdivision because he owns vacant lots
10. The town where he lives wants an easement over his house for a neighborhood water project which he wants to do but there a lien
11. He has no way to lift the lien consensually because there’s no HOA Board, MGMT Co, or attorney..

He’s screwed

Posted in Viewpoints | Tagged , ,

How to reset your password

Reposted from another site:

HOA SENIOR TRYING TO RESET WINDOWS PASSWORD

WINDOWS:

Please enter your new password.

USER:

cabbage

WINDOWS:

Sorry, the password must be more than 8 characters.

USER:

boiled cabbage

WINDOWS:

Sorry, the password must contain 1 numerical character.

USER:

1 boiled cabbage

WINDOWS:

Sorry, the password cannot have blank spaces

USER:

50damnboiledcabbages

WINDOWS:

Sorry, the password must contain at least one upper case character

USER:

50DAMNboiledcabbages

WINDOWS:

Sorry the password cannot use more than one upper case character consecutively.

USER:

50damnBoiledCabbagesShovedUpYourAssIfYouDon’tGiveMeAccessNow !

WINDOWS:

Sorry, the password cannot contain punctuation.

USER:

ReallyPissedOff50DamnBoiledCabbagesShovedUpYourAssIfYouDontGiveMeAccessNow

WINDOWS:

Sorry, that password is already in use

 

Posted in Viewpoints | Tagged

Who’s insuring your HOAs wallet?

Guest Blog: http://arizonahoa.blogspot.com

The last of three OAH cases on books and records took place this week. In all cases, the books and records at issue were copies of:

  • The user names and passwords for HOA bank accounts for members on a read only basis
  • The signature cards held by the bank for those accounts.

Banks involved include US Bank, Alliance and Mutual of Omaha. The FDIC has clearly stated, IN WRITING, that for their deposit insurance to flow through the Management Company to the HOA, as beneficiary, the nature of the FIDUCIARY RELATIONSHIP must be clearly identified in the documentation. Banks in the industry have confirmed that the FDIC also tracks with Tax Identification numbers. In most cases, only the Tax ID of the Management Company shows. Rarely the HOA. If these records do not exist, an additional FDIC requirement is not satisfied.

Trestle Management testified under oath this week that they do NOT have a FIDUCIARY RELATIONSHIP with the HOA. You can access the FULL HEARING AUDIO but for the critical 20 second testimony extract, click HERE

Only the FDIC can resolve this. However for HOA’s looking to move their accounts to two banks knowledgeable in HOA’s, and doing it right, just email jas@arizonahomeowners.net

Posted in Viewpoints | Tagged ,

Digital signatures

Digital signatures, computer-documents storage pose challenge to HOA board

Digital signatures and computer-documents storage pose a challenge to HOA board.

Stockphoto / Getty Images

Digital signatures and computer-documents storage pose a challenge to HOA board.

 Donie Vanitzian, JD

Question: Our association seems to be stumbling over itself when it comes to electronic documents. First, it’s embroiled in litigation and received a subpoena for documents, which prompted our association attorney to have the board gather all electronic correspondence for a specified period of time. The problem is that some directors deleted documents from our computers, sold their units and moved out of state.

Separately, one of those departed directors made a mandatory rule that all homeowners had to sign their communications with a digital signature or the board would not accept an owner’s email — even if it was an emergency. Is an electronic signature legally binding? Is there a difference between electronic and digital signatures? And how do you know who is actually signing something with these signatures?

Answer: Litigation is like poker; you must play the cards that are dealt. Know too that you simply cannot change the past. Your duty in responding to a subpoena is to produce all relevant, non-privileged documents in the custody or control of you, your attorneys and third-party agents. If the documents no longer exist or are unavailable, there may be little you can do. The party seeking discovery may question your association on this matter and may seek discovery from the departed directors to see if they have retained any records.

The bigger question, however, is when and why were the records deleted. The destruction, alteration or failure to preserve evidence is known as “spoliation,” and it is a big deal. 

Depending on the association’s degree of culpability, if any, and the prejudice to the other side, a court may impose monetary sanctions, prevent the association from presenting certain evidence, terminate the association’s case altogether or, even worse, enter judgment against it. In a jury trial, the court may instruct the jury to assume that the missing evidence would be unfavorable to the association. If that were not bad enough, spoliation is also a criminal offense under Penal Code section 135.

Given the potential risks involved in not producing the documents, your association may want to consult with a computer forensics expert to see if the files can be retrieved from the computer.

Unlike the low-tech, but highly efficient, paper shredder, deleted computer files are not always irretrievable and sometimes can be found on the hard drive, backup tapes on Internet-based storage and backup systems such as iCloud, Google Drive or Dropbox. If this proves unsuccessful, then the association may wish to solicit the cooperation of the departing directors to obtain the documents. They would be wise to cooperate because they may have liability to the HOA for failing to preserve the records.

As for electronic signatures, they cannot be unilaterally imposed for all communications by a single director. Associations act through their board of directors. And even if such a requirement was authorized by the full board, directors have a fiduciary duty to act in the best interest of the association and it would be inconsistent with that duty to arbitrarily ignore vital email communications from titleholders. But that is not to say that electronic signatures are not useful tools.

To be clear, an electronic signature is any electronic symbol used with an intent to sign a document. Under the federal E-Sign Act and the Uniform Electronic Transactions Act (adopted by every state except Illinois, New York and Washington), the parties to an agreement must express an intent and agree to execute the agreement electronically, which often takes the form of separate correspondence or language within the agreement indicating such an intent. 

Like any signature, though, an e-signature can be challenged by a party who claims that it is not his or her signature or that consent was not given. This is where digital signatures come in. They are generated by software applications and provide greater surety to both the person signing a document and the one receiving it. 

Last year, to eliminate any confusion over electronic versus digital signatures, California adopted Assembly Bill 2296 clarifying the standards of what constitutes a digital signature.

Under the bill, digital signatures use software to generate a signature that is unique to the person using it, must be capable of verification (such as by collecting the email and Internet protocol address of the signer) and are linked to the executed document in such a way that if it is changed the digital signature is invalidated.

As one provider explains, digital signatures are akin to “electronic fingerprints” and create a coded digital message that securely links the signer with the document being signed and verifies the chain of custody of the document.

A valid contract can be created using electronic signatures that do not meet the stringent criteria of a digital signature, but the risk of a party challenging the validity of a signature is dramatically reduced by using digital signatures. Digital signatures are, in essence, the Internet equivalent of a notary — but without the cool stamp.

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