Thursday, October 23, 2014

Overmyer v. Frick--new theory for HOA rights?

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=405&invol=174

The Democratic candidate for the US House of Representatives from the 11th District in Pennsylvania is a civil rights attorney named Andy Ostrowski.  He has a theory that HOAs violate a principle he sees in the US Supreme Court case of Overmyer v. Frick, which is linked above.  The issue in the case involved an Ohio law that allowed people--usually debtors trying to get one more chance from their creditor--to give up all their due process rights and confess judgment in advance, if they defaulted one more time.  This was legal under an old doctrine called "cognovit."  The Supreme Court ruled that  cognovit notes were not unconstitutional, provided that the waivers of due process were adequate.  Ostowski thinks that maybe HOAs and condos require inadequate notice and the agreements are unconstitutional.  Interesting theory, but I think it is far-fetched. The problem is that the court ultimately ruled in favor of cognovit.

Here is Ostrowski's statement of how he thinks this applies:
https://www.facebook.com/Floridiansact/posts/637732836340842


And here is the court's explanation for upholding the cognovit provision. You be the judge.

"Even if, for present purposes, we assume that the standard for waiver in a corporate-property-right case of this kind is the same standard applicable to waiver in a criminal proceeding, that is, that it be voluntary, knowing, and intelligently made, Brady v. United States, [405 U.S. 174, 186]   397 U.S. 742, 748 (1970); Miranda v. Arizona, 384 U.S., at 444 , or "an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Fay v. Noia, 372 U.S., at 439 , and even if, as the Court has said in the civil area, "[w]e do not presume acquiescence in the loss of fundamental rights," Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307 (1937), that standard was fully satisfied here.
"Overmyer is a corporation. Its corporate structure is complicated. Its activities are widespread. As its counsel in the Ohio post-judgment proceeding stated, it has built many warehouses in many States and has been party to "tens of thousands of contracts with many contractors." This is not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion. There was no refusal on Frick's part to deal with Overmyer unless Overmyer agreed to a cognovit. The initial contract between the two corporations contained no confession-of-judgment clause. When, later, the first installment note from Overmyer came into being, it, too, contained no provision of that kind. It was only after Frick's work was completed and accepted by Overmyer, and when Overmyer again became delinquent in its payments on the matured claim and asked for further relief, that the second note containing the clause was executed.
"Overmyer does not contend here that it or its counsel was not aware of the significance of the note and of the cognovit provision. Indeed, it could not do so in the light of the facts. Frick had suggested the provision in October 1966, but the first note, readjusting the progress payments, was executed without it. It appeared in the second note delivered by Overmyer's own counsel in return for substantial benefits and consideration to Overmyer. Particularly important, it would seem, was the [405 U.S. 174, 187]   release of Frick's mechanic's liens, but there were, in addition, the monetary relief as to amount, time, and interest rate.
"Overmyer may not have been able to predict with accuracy just how or when Frick would proceed under the confession clause if further default by Overmyer occurred, as it did, but this inability does not in itself militate against effective waiver. See Brady v. United States, 397 U.S., at 757 ; McMann v. Richardson, 397 U.S. 759, 772 -773 (1970).
"We therefore hold that Overmyer, in its execution and delivery to Frick of the second installment note containing the cognovit provision, voluntarily, intelligently, and knowingly waived the rights it otherwise possessed to prejudgment notice and hearing, and that it did so with full awareness of the legal consequences.
Insurance Co. v. Morse, 20 Wall. 445 (1874), affords no comfort to the petitioners. That case concerned the constitutional validity of a state statute that required a foreign insurance company, desiring to qualify in the State, to agree not to remove any suit against it to a federal court. The Court quite naturally struck down the statute, for it thwarted the authority vested by Congress in the federal courts and violated the Privileges and Immunities Clause."

Delaware ombudsman office getting started

http://www.delawareonline.com/story/news/local/2014/10/20/ombudsman-weigh-homeowner-association-disputes/17639817/

This legislation is only a few months old. One more state goes the ombudsman route, giving unit owners someplace to turn other than the courts. It is a necessary reform, but not sufficient to address the unmet needs.

You need this condo pony

http://www.npr.org/2014/10/21/357816986/you-definitely-need-this-condo-pony-and-other-products-from-skymaul?utm_source=facebook.com&utm_medium=social&utm_campaign=npr&utm_term=nprnews&utm_content=2045

And to think I never knew there was such a thing as a condo pony.

Wednesday, October 22, 2014

Property manager accused of stealing $180,000 from HOAs

http://www.wsbtv.com/news/news/local/chamblee-man-allegedly-stole-50000-homeowners-asso/nhpD3/?ref=cbTopWidget


"A Chamblee property management company owner is accused of stealing tens of thousands of dollars from homeowner’s associations. 
So far, police in Dunwoody and Chamblee tell Channel 2 Action News reporter Mike Petchenik they’ve filed charges against Michael Sisson, and they say more charges are possible. Darwin Johnson told Petchenik his Midtown condo association hired Sisson a few years ago to manage their property near Piedmont Park."
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There have been so many such incidents around the country that I have  lost count. Industry representatives  invariably say these are "isolated incidents," which would be true if you stretch the meaning  of  "isolated" to include every state where you find a significant number of HOAs and/or condos.

Tuesday, October 21, 2014

Sarah Jessica angers homeowners association - Yahoo Maktoob News

Sarah Jessica angers homeowners association - Yahoo Maktoob News: Parker returned to the building earlier this month to stage a photoshoot for her footwear brand, placing the shoes on the steps and posting pictures of them on her Instagram.com page.

However, the stunt has infuriated the local homeowners association, who claim the actress failed to obtain proper permission to gain access to the steps, reports contactmusic.com.

Gerald Banu, president of the Perry Street Association, said: "I heard about the shoot. They didn't get the permission from the owner. The situation with 'SATC' visitors is still very intense.

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Sex, shoes and the HOA. Maybe this will lead to a Hollywood production. Been a while since the Falls at Arcadia X-Files episode.

Monday, October 20, 2014

Veteran not backing down after homeowners association says his flag pole must go | Fox 59

Veteran not backing down after homeowners association says his flag pole must go | Fox 59: “We do not tell anyone they cannot fly a flag. What we are having a problem with is the flag pole. Flag poles are not allowed in this association,” said Kaye Eckert, president of the Fieldstone HOA board.

Eckert said the association has tried to compromise.

In September, they sent a letter saying the couple could keep the flag pole, if they paid a $500 fine to cover legal costs. Bob Willits would not budge.

“That flag is very personal to me,” said Willits, “That means a lot to me.”


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More bad press for Privatopia, Indiana secktor. Film at 10 on Fox 59, Indianapolis.

HOA troubles? Legislators want to hear them : News : CarolinaLive.com

HOA troubles? Legislators want to hear them : News : CarolinaLive.com: Have any concerns, questions or issues with your homeowners' association?

The Horry County Legislative Delegation will host a public hearing on homeowners' association issues on Wednesday, Oct. 29, at 7 p.m. in Horry Georgetown Technical College's Burroughs and Chapin Auditorium.

Connie Turner, administrative assistant for the delegation, said the format will be question and answer.

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Trouble in Privatopia, South Carolina sector? The Legislature wants to know.

Saturday, October 18, 2014

Pay to Prey: Report on privatization

http://www.prwatch.org/news/2014/10/12620/pay-to-prey-governors-facilitate-the-predatory-outsourcing-of-americas-public-services

This is a report on the way Republican governors  have allowed corporations to profit from privatization deals at the expense of the public and the people who are supposed to be receiving the services.  Some of the stories are pretty lurid.  From  the report:

"Outsourcing of public services is a big business. Some experts estimate that $1 trillion out of the $6 trillion the federal government, together with state and local governments, spend annually are handed over to private contractors. In 2010, an electoral landslide ushered in a new breed of governors. Aided and abetted by corporate-funded legislative and lobbying groups, such as the American Legislative Exchange Counsel (ALEC), these governors pushed the envelope of outsourcing and privatization, selling public services to for-profit firms with their powerful political lobbies and related campaign contributions. In this process, transparency and accountability are lost and the public loses its ability to influence decision makers through normal democratic channels. Shared prosperity also suffers when good middle class jobs are lost to low-road, low-wage employers. In states across the country, schools, health care, prisons, prison food, water services, road services, state liquor sales, state economic development authorities, legal services, and even child support services were outsourced to private, for-profit companies. While the governors spoke of tight budgets and cost savings, a pattern emerged of influential corporate lobbyists and deep-pocketed campaign contributors In this effort to shrink government and sell off the prosperous parts to private interests, the winners are large corporations with a phalanx of lobbyists and campaign coffers big enough to buy political influence. All too often, taxpayers find themselves on the losing side."

Friday, October 17, 2014

The Making of Ferguson, MO

http://www.epi.org/publication/making-ferguson/


"In August 2014, a Ferguson, Missouri, policeman shot and killed an unarmed black teenager. Michael Brown’s death and the resulting protests and racial tension brought considerable attention to that town. Observers who had not been looking closely at our evolving demographic patterns were surprised to see ghetto conditions we had come to associate with inner cities now duplicated in a formerly white suburban community: racially segregated neighborhoods with high poverty and unemployment, poor student achievement in overwhelmingly black schools, oppressive policing, abandoned homes, and community powerlessness."

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This is a detailed and balanced account of how Ferguson became what it is today. Public  policies, real estate industry practices, and other institutional factors contributed to the situation.  My colleague Dennis Judd's article about segregative practices  is cited.