by Kenneth Eade
Finally, when Brent realized that neither his brain nor his body could stand to be in the office one minute longer, he went home. When he arrived, he was happy to see Angela’s car parked out front. Whether it was good news or bad news, she was the one he always wanted to tell first. Brent crossed the portal to his beloved home a weary soldier, coming home from the war.
“You look like you could use a drink,” was the first thing Angela said. Brent merely nodded. Once he had shelved his battle gear, he sunk into the couch and made his confession.
“I’m really stuck now, Angie.”
“Because of the case?” she asked, handing him a glass of Bailey’s on the rocks.
“No, because of attorney-client privilege. I can’t even tell you about it.”
“Is there someone you can talk to?”
“No,” he said, swishing the coffee color liquid over the ice cubes. “This is something I have to figure out by myself. In the old days, I could talk to Charles about it, because he was my associate, but now it’s just me.”
Angela looked at Brent with compassionate eyes. “I know you’ll do the right thing.”
“That’s just it, Angie. I have to do the right thing, but do it without doing the wrong thing.”
“Sounds like a bar exam question.”
“It is,” Brent said, realizing how well she comprehended without knowing all the detail. She always did. In all the relationships Brent had had before, nobody had the understood him as well as Angela did.
While Angela was busy preparing dinner, Brent sat on the balcony, looked out over the ocean from the harbor to the horizon. What would you do, Charles? He thought. Then, after a while, the answer came to him. Just like that.
CHAPTER FORTY-ONE
When psychiatrists talk about stress, they really have no idea what they are talking about unless they have been through the ordeal of a trial. Waiting for a jury to render a verdict is the epitome of stress. On the instructions of Brent, Nancy stayed home and waited for his call, but Brent visited the courtroom every day and stayed there as long as possible. It was like watching the proverbial pot and waiting for it to boil.
The jury room had a buzzer that they could ring if they had a question, or if they had finally come to a verdict. Every time that buzzer rang in the courtroom Brent literally jumped out of his skin, and it would inevitably be that someone had to go to the bathroom or they wanted an early lunch break. A couple of times, they asked questions, and both lawyers were called in to discuss the question with the Judge and provide an answer, if possible, to pass on to the jury.
But one day, Melinda called Brent on his cell phone and told him he was needed in court right away, and that Nancy’s presence was required as well. When Brent, Nancy and Jillian arrived almost simultaneously, the Bailiff brought the jurors in, and they filed into their seats. Brent examined their faces. They were a mixture of exhaustion and what also looked like disappointment.
Judge Curtis declared, “Ladies and gentlemen, your foreman tells me you are hopelessly deadlocked, is that correct?”
“Yes, Your Honor, said the Foreman, a Chief Accountant for a large accounting firm.
“And do you think that more time would help you reach a unanimous verdict?”
“No, Your Honor,” said the Foreman. “We are at an impasse. I’m afraid it’s impossible.”
“Then I would like to thank you on behalf of the State of California and the County of Santa Barbara for your service. Jury service is imperative to the functioning of a democracy, and we are in your debt. You all are discharged. You may stay, if you wish, and speak to the lawyers. The admonishment against speaking to them is now lifted. I caution you, however, against speaking about this case with anyone else, because the People may decide to refile.”
“What does it mean?” asked Nancy.
“It’s a hung jury. They can’t decide,” answered Brent.
“The defendant is released and discharged and her bail is exonerated,” said the Judge.
Jillian cried, and hugged Nancy with relief. Brent explained to Nancy that the D.A. would now have to decide whether to file again or not. If they did, there would be another trial. If they didn’t, the nightmare would be over. Nancy was disappointed, surprised, and upset, but she realized the job Brent had done and thanked him. She was free. Frances didn’t anticipate a hung jury, thought Brent. This may open the investigation up again, to try to plug the holes in the prosecution’s case.
Brent stayed behind to speak to the jury. He usually hated that part, but, in the event he had to try the case again, he thought he could benefit from their thinking process. Only a few jurors stayed to discuss the case, and there were no great revelations.
After speaking to the jury, Brent and Chernow stayed on to discuss the case with the reporters. When the crowd had dissipated, only Brent and Chernow were left standing.
“Want to go for a beer?” asked Brent.
Chernow hesitated, then said, “Why not?”
The Pressroom was an authentic English pub, with wood paneling soaked with the smell of beer and decorated with British flags, barrels and old framed pictures. That suited Chernow just fine, because it was just the place to order his favorite Guinness on tap. Brent toasted his mug with his usual Corona.
“Brad, if you’re thinking about refiling this case…”
“Whoa, is that why you asked me for a beer? To talk me out of refiling?”
“Calm down, Brad. That’s not why. What you decide to do is up to you and the D.A.’s office. I just wanted to suggest something.”
“What do you know?”
The comment was as if Chernow had a feeling that there was something missing all along. Something that Brent knew and he didn’t.
“Actually Brad, I can’t tell you what I know. But I am an officer of the court and, as such, I took an oath to this system and I want to see that justice is done.”
“Go ahead.”
“When you do your post-mortem of this case, go over the books and records of the Orange Grove Homeowner’s Association and compare them with the banking records. I think you’ll figure out your next step from there.”
EPILOGUE
Brent sat in the last row of Frances Templeton’s trial every day, just as she had sat in on Nancy’s. When the jury returned a verdict of “guilty,” he silently smiled to himself. And, when the Bailiff took Frances by the arm into custody, she turned her head and shouted out, “I know it was you, Marks! I’ll have you disbarred!”
Brent said nothing in return. He just sat and watched as the Bailiff slapped the handcuffs on Frances and dragged her away. Justice had finally been done.
AFTERWORD
Of course, most people don’t murder the heads of their homeowner’s association. But covenants and restrictions have turned many formerly pesky neighbors into mini despots. If you care to read on, I have summarized some of the research I have done for this novel. If not, I would like to ask you now to please leave a review on the book’s Amazon page at http://amzn.com/B00QPD8HF6, and to share it with your social networks. Also, there are excerpts of the other books in the Brent Marks Legal Thriller Series; Predatory Kill, HOA Wire, and Unreasonable Force. Finally, I love to get email from my readers. Please feel free to send me one at [email protected]. I would also like you to join my mailing list, for advance notice of new books, free excerpts, free books and updates. I will never spam you. Please subscribe by visiting my web site at www.kennetheade.com.
This story is fiction, but two cases of HOA hell gave it inspiration. The first was Sammi Goldstein. Sammi had gone through more trials in life than most of her neighbors in the quiet bedroom community of Stevenson Ranch, north of Los Angeles, California. Her daughter Stephanie suffered for years from IBD. Sammi fought for her daughter’s life through 16 agonizing surgeries at the best hospitals in the country. But the trial that really broke her down was the one she was never allowed to attend until she had to defend herself from a contempt of court charge. You c
ould say it was a case of color. When her homeowner’s association, Southern Oaks Society, asked Sammi to paint her house, she complied by painting it almost the exact same color as a neighbor with the same tract model, with the exception of a blue door and shutters. But, according to Southern Oaks, the color was all wrong. So wrong, that they sued Sammi for it, and got a judgment against her without her even knowing about it.
While Sammi was in Minnesota at the Mayo Clinic during several of her daughter’s surgeries, the HOA served her husband, with whom she was separated at the time, with the summons and complaint, took Sammi’s default and she didn’t find out about it until the HOA wiped her children’s savings accounts out to the tune of $5,000, on an assessment and attorney’s fee bill of over $50,000. The HOA finally did succeed in personally serving Sammi, but it was with a contempt of court citation, threatening her with imprisonment if she didn’t repaint her house. I succeeded in getting the default judgment set aside, and the case eventually settled.
Homeowner’s Associations in California continue to badger homeowners with infractions of rules and regulations under the authority of Civil Code section 1354, which entitles them to enforce deed restrictions as equitable servitudes.
HOA’s should be mindful of the principle that “one who seeks equity must do equity” and the equitable relief must be fashioned with the equitable rights of the defendant in mind. Dickson, Carlson and Capillo v. Pole (2000) 83 Cal. App. 4th 436 at 445-446. This principle makes a perfect shield against outrageous fines and fees. Homeowners facing adverse action from their HOA’s should suggest reasonable equitable remedies to the Court that solve the problem without being punitive in nature.
Homeowner’s Associations, created by deed provisions to serve homeowners in condominium developments, are often at odds with individual owners of units. Sometimes these conflicts escalate to the point where the HOA actually forecloses on a homeowner’s interest in the unit, resulting in a total loss to the homeowner. In California, the Davis-Stirling Common Interest Development Act, codified in Civil Code Sections 1350-1376, gives an HOA the authority to levy assessments, which become an involuntary lien against the homeowner’s interest when the HOA records a “Notice of Delinquent Assessment” (Civil Code 1367). Section 1367(e) gives the HOA the right to enforce that lien in any manner permitted by law, including foreclosure. Thus, if the homeowner does not pay a delinquent assessment, his or her interest may be sold at either a judicial or non-judicial foreclosure sale, resulting in the possibility of the HOA becoming the owner of the unit and evicting the homeowner from their own home.
I recently came in to represent an elderly couple in Marina del Rey in such a case after a default judgment for judicial foreclosure. Thankfully, the legislature inserted stringent notice provisions in Civil Code 1367.1 by amendment in 2002 and 1367.4 by amendment in 2005, so I looked to them to ascertain whether there was compliance. The provisions require that, thirty days prior to recording a lien on the separate interest of any owner, the HOA must give notice by certified mail of its lien collection procedures, the method and calculation of the assessment amount, a statement that the owner has the right to inspect the HOA’s records, and a specific warning that their interest may be sold without court action if the lien is placed in foreclosure (1367.1(a)(1). They also require an itemized statement of the assessments, late charges, collection and attorney’s fees, a statement that the owner shall not be liable to pay the interest, charges, and costs of collection if it is determined that the assessment was paid on time, the right to request a meeting with the HOA board, the right to dispute the assessment by submitting a written request to the HOA for dispute resolution pursuant to its required “meet and confer” program, and the right to request alternative dispute resolution with a neutral third party (1367.1(a)(2-6). The decision to record the lien must be made by the HOA board by a majority vote (1367.1(c)(1)(B), and the notice of delinquent assessment must be recorded and a copy of the recorded notice served on the homeowner by certified mail. Section 1367.4 requires the HOA, prior to the use of foreclosure, to collect an assessment over $1800, to offer the “meet and confer,” to make the decision to foreclose by a majority vote of the full HOA board, to provide notice of that decision to the owner by personal service, “in accordance with the manner of service of a summons (CCP sections 415.10, et. seq.), and to allow the homeowner a redemption period in cases of non-judicial foreclosure (Civil Code section 1367.4).
Prior to the case of Diamond v. Superior Court, 217 Cal. App. 4th 1172 (2013), decided by the Sixth District Court of Appeal on June 18, 2013, courts were refusing to overturn foreclosures if the HOA could demonstrate “substantial compliance” with the statute. The Diamond case held that the notice requirements of sections 1367.1 and 1367.4 must be strictly construed, “pursuant to the plain language of the statutes and their legislative history” and set aside the foreclosure sale in that case for the HOA’s failure to send the homeowner a copy of the recorded notice of delinquent assessment and failing to give the required pre-lien notice of a right to demand alternative dispute resolution.
In my case, the homeowners came to me after a judicial foreclosure, on the verge of losing their home, in an attempt to stop the sale and force the HOA back to the bargaining table. The HOA in that case had not yet personally served the homeowner with a copy of the board’s decision to foreclose on their home, and claimed that the statute did not specify when it should be served. Presumably, they could serve it any time before the foreclosure sale. However, the reason for personal service in accordance with CCP section 415.10 is to give notice of a legal process in order to comply with the principles of due process.
The fourteenth amendment to the United States Constitution provides that “no state shall deprive any person of life, liberty or property without due process of law.” The legislative history of the amendment creating section 1367.4, plainly requires the HOA board to provide notice of its decision to foreclose as a condition of foreclosure, which is a taking of property authorized by the state. Notice is a concept of due process, and to require that notice to be given by personal service, as opposed to the other methods of service specified in the Code of Civil Procedure, the legislature plainly prescribed the highest form of notice. The purpose of such service statutes is to assure that due process is satisfied. See American Express Centurion Bank v. Zara, 199 Cal. App 4th 383 (2011). Clearly, since the statute specifies personal service of the board’s decision as a precondition of foreclosure, that service must occur before the commencement of foreclosure proceedings, to allow the homeowner notice and the opportunity to defend against them. The case is still pending.
One more thing…
I hope you have enjoyed this compilation and I am thankful that you have spent the time to get to this point, which means that you must have received something from reading it. I would be honored if you would post your thoughts, and also leave a review on Amazon. Please just click here to leave your review.
Best regards,
Kenneth Eade
[email protected]
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OTHER BOOKS BY KENNETH EADE
Brent Marks Legal Thriller Series
A Patriot’s Act
Predatory Kill
Unreasonable Force
Killer.com
Involuntary Spy Espionage Series
An Involuntary Spy
To Russia for Love
Non-fiction
Bless the Bees: The Pending Extinction of our Pollinators and What You Can Do to Stop It
A, Bee, See: Who are our Pollinators and Why are They in Trouble?
Save the Monarch Butterfly
ABOUT THE AUTHOR
Author Kenneth Eade, best known for his legal and political thrillers, practiced law for 30 years before publishing his first novel, "An Inv
oluntary Spy." Eade, an up-and-coming author in the legal thriller and courtroom drama genre, has been described by critics as “one of our strongest thriller writers on the scene, and the fact that he draws his stories from the contemporary philosophical landscape is very much to his credit.” Critics have also said that “his novels will remind readers of John Grisham, proving that Kenneth Eade deserves to be on the same lists with the world's greatest thriller authors.”
Says Eade of the comparisons: "John Grisham is famous for saying that sometimes he likes to wrap a good story around an important issue. In all of my novels, the story and the important issues are always present.”
Eade is known to keep in touch with his readers, offering free gifts and discounts to all those who sign up at his web site, www.kennetheade.com.
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Copyright 2015 Kenneth Eade
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