cal328

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About cal328

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  1. That's exactly what i was planning to do. Monday Apr 2nd was my 10 day deadline to request a hearing on fee waiver and I was parked outside the court that day w/court forms in hand when i called hoa atty. I reiterated my desire to not bring counterclaims against the hoa but if she didn't dismiss case I'd have no choice but to walk into court today, pay my $450 filing fees and proceed. (it's a long story but basically it's the hoa property manager who's withheld material info from both the board & I and also violated law during the collection process. HOA atty has violated law as well. BOD made decision to lien and later to foreclose based on what prop mgr was telling them ... and prop mgr hates me). Anyway atty agreed to extend my deadline to May 1st and said she'd immed email her statement. I raced home, saw her email and called her to record her stating same. At that point i decided to let pass the deadline to request a hearing on fee waiver. When I said today is the 10th day i was refering to the deadline for hoa atty to enter a def judgement if they were going to act as if i missed my April 2nd deadline to answer. And actually the 10th day would be tomorrow
  2. 2012 California Rules of Court Rule 3.110. Time for service of complaint, cross-complaint, and response (a) Application This rule applies to the service of pleadings in civil cases except for collections cases under rule 3.740(a), unlawful detainer actions, proceedings under the Family Code, and other proceedings for which different service requirements are prescribed by law. ( Service of complaint The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint. © Service of cross-complaint A cross-complaint against a party who has appeared in the action must be accompanied by proof of service of the cross-complaint at the time it is filed. If the cross-complaint adds new parties, the cross-complaint must be served on all parties and proofs of service on the new parties must be filed within 30 days of the filing of the cross-complaint. (d) Timing of responsive pleadings The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint. (e) Modification of timing; application for order extending time The court, on its own motion or on the application of a party, may extend or otherwise modify the times provided in (-(d). An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed. (f) Failure to serve If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed. (g) Request for entry of default If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default. (h) Default judgment When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time. (i) Order to show cause Responsive papers to an order to show cause issued under this rule must be filed and served at least 5 calendar days before the hearing. Per (g) It seems the atty would have 10 days after my filing deadline expires to enter a default judgement. Today is the 10th day
  3. No, nothing was filed with the court. I was planning on filing the written agreement with my new answer & fees (if the BOD didn't accept my pmt plan) Just the income form that is part of the fee waiver request. Between my wife & I I'm sure the judge felt we made too much money. You have 10 days after his ruling to either pay fees or request a hearing to better explain the situation to the judge. I was in that 10 day window when the atty agreed to extend filing deadline. Just found this in rules of court: 2012 California Rules of Court Rule 3.110. Time for service of complaint, cross-complaint, and response (d) Timing of responsive pleadings The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint. Seems to indicate any agreement made outside the court can only be for 15 days!
  4. Just to be clear ... I have until May 1st to pay fee right??? Plaintiff atty agreed in writing to extend my time to answer. I did ask atty if this was an attempt to slide in a default judgement and her reply was "I'd be awful stupid to go for a default judgement knowing you could come back and give the judge written & audio evidence that I agreed to extend your filing deadline". Doesn't that make sense to you seadragon, May 1st? I can pay the filing fee but I'd rather save it for a payment plan ... help to ensure I stay on track.
  5. Thanks guys, i'll likely amend a bit. Yep, figured i might be waiving my right to the fee hearing if I let the judge's 10 day deadline expire. Oh well, was a gamble on my part hoping the BOD will accept the payment plan, if not that $450 will go to the court and we start duking it out in court. I have valid counterclaims for violations so it wont be a true david vs Goliath battle. The atty needs to get moving though as I still haven't received the demand
  6. Question for the pros. I was recently sued by my HOA here in Calif (not a cc case but I assume procedure is same??). Anyway I submitted a timely answer and with it requested a fee waiver (double fees cuz both my wife & I are on title). Court denied waiver and gave me 10 days to pay up or request a hearing on the matter. In the meantime i contacted plaintiff atty and made them aware of several violations that they - and the HOA - have made during the collection process. Long story short the atty agreed in writing to extend my filing deadline til May 1st, they also allowed me to audiotape them saying same. They're now sending me a new demand and asked me to reply with an offer or payment plan and they'll present it to the board of directors. So the 10 days to pay fees or request hearing expires and court voids my answer, which the atty said they would do. My question is, if the BOD rejects my offer/pmt plan and I do have to refile my answer, must it be the same answer that was previously filed or can I file an entirely new answer with different affirmative defenses etc? Thanks
  7. Thanks Rivertime, thanks Skippy, DSA violations were all within the past 20 months so can’t imagine SOL expiration but I’ll check. I do think the BOD will be receptive to a payment plan. I’ve served on this board myself and we were always willing to work with homeowners to bring their acct current. I did have some nasty discussions with the property manager back then and I think she’s still holding a grudge. She’s lazy, mistake prone and basically just a poor manager … and I let her know it a few times. She cost us a lot of money by always pushing through bids for her favorite vendors – that stopped when I got on the board. I told her to take every contract up for renewal and send it out for bids, and in every instance we received far lower bids than what we were paying. Many of her cozy vendors were forced to lower prices or hit the road and she wasn’t happy … but whatever, we saved a ton a money for the association. She - purposely I believe - withheld material information from the BOD the night they voted to lien. Her company was in possession of my arreage check but she didn’t tell the BOD before the vote. She cashed it two days after the board meeting. Worse, when she allowed the BOD to vote that night to lien our property – we were only 18 days into our 30-day window to pay arrearage (she just couldn’t help herself). Then she fails to notify me within 10 days of lien recordation. Then she fails to record in the HOA minutes the BOD’s decision to initiate foreclosure. I think she’s been out to get me but man she's made a bunch of mistakes in the process. Then the HOA atty decides to join the violation party in OCT 2011 when they sent me a letter offering dispute resolution. I formally accept (by requesting it). They say great, contact us to set up a meeting time. I do. They reply back that they’ll contact the BOD to see when they’re available. That’s the last I hear from them. 4 mos later atty sends summons - they’ve initiated foreclosure. You can't offer then not do it. They also failed to do one of the following; file a certificate with their complaint declaring dispute resolution had been completed - or - a statement declaring I had refused it. They did neither. My point is the BOD doesn’t know any of this. They only know what the property mgr puts in front of them at the meeting. No doubt they think I’ve been uncooperative and stonewalling them this whole time .. not at all. At the very least this will be my opportunity to explain what’s been happening. Just now saw that the court voided my answer today...i assume this is procedural since i didn't pay my fees on monday. Also assume that if BOD negotiations don't go well I will have until May 1st to re-answer.
  8. Another update. My deadline to pay filing fees or request hearing on fee waiver was Monday. (was actually Friday but rolled to Monday due to court holiday) I spoke to the HOA atty again Monday and reiterated my desire to not try this in court before utilizing my right to dispute resolution - which has been circumvented. I reminded them that they, and their client (HOA property mgr not the BOD), have committed serious violations during this process. Told them that if they refuse to dismiss the case and go back and file according to law & the HOA assessment collection policy (starting with the lien), i would have no choice but to pay my fees today and then proceed with counterclaims for the violations. I stressed again that I did not want to do that. They agreed, in writing, to extend my filing deadline until May 2nd. They also gave permission for me to record them stating such. They are now sending me a new demand and said i could reply with a settlement offer, a payment plan, or any combination of the two and they would then submit it to the BOD for their review. So basically, while roundabout and not in person like it's supposed to be, I will finally get my chance to communicate to the BOD a payment plan to catch up.
  9. Update on my case. A couple weeks ago I filed my answer denying allegations by Plaintiff (HOA) and presented four affirmative defenses. Did not counterclaim for the Davis-Stirling violations but reserved the right to add or amend at a later time (which may be now). Filed a fee waiver with my answer and it was denied by court (HOA filed only one case against my wife & I but we are counted as two defendants and thus two separate filing fees, which sucks). I have until today to pay fees or ask for a hearing, I plan to ask for a hearing. In the meantime I called Plaintiff attorney to ask that they dismiss the case and allow me the opportunity to engage in the dispute resolution that I had formally requested. The atty assistant said it was too late for that, that IDR/ADR was offered in the July 2010 “Intent to lien” letter and you did not request it at that time. I told her the assoc collection policy requires that it be offered before a lien is recorded (which they did in the 7/10 letter) but also before commencing foreclosure. She said no it doesn’t. I said yes it does, and in fact your “Intent to commence foreclosure” letter in OCT 2011 did offer it - and I formally requested it. Your firm then accepted my request and asked me to contact you to set up the resolution meeting, and I did that. Then your atty wrote to me saying she would have to see when the board could meet with me. But apparently at some point after that she was no longer employed at your firm and I never heard from her again, The next communication I received from your firm was a summons in Jan 2012. She continued to assert that they complied with the law and all she could do at this time is send me a demand letter (today) for total amount owed and that I could send back my offer and they would present it to the board. That’s where we are now and after rereading the assessment collection policy again I firmly believe that they are not in compliance with the law.
  10. Thank you KentWA. So two copies of the ANSWER, two copies of your AFFIRMATIVE DEFENSES, two copies of attachment #3b or #4 if you have them, and two POS's? So basically two seperate files completely need to be brought to the court, and both needing to be stamped by the court, and both to be sent CMRR to plaintiff's atty?? Is that correct? What about the filing fee? Two seperate fees?
  11. What if both you and your wife are listed as defendants? How are we both to sign the ANSWER? Thank you
  12. Added Defendant prays clause Admitted to "name" paragraph "at all times defendants were agents, employees", blah blah paragraph Would I request mediation in the answer itself or include it within my affirmative defenses? BTW, here are my Affirmative Defenses: NOW COMES THE DEFENDANTS in defense of the allegations raised in Plaintiff’s Complaint, Defendants assert the following affirmative defenses. AFFIRMATIVE DEFENSES DEFENDANTS FIRST AFFIRMATIVE DEFENSE PLAINTIFF FAILED TO STATE CLAIM 1. Plaintiff failed to comply with the Davis-Stirling Common Interest Development Act, as well as Plaintiff’s own Collection Policy, before commencing action against defendants. Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. DEFENDANTS SECOND AFFIRMATIVE DEFENSE UNCLEAN HANDS 2. Defendants reassert and reallege the facts set forth in paragraph 1 above, and incorporates same as reference herein. 3. Plaintiff failed to disclose material information to Defendants prior to such time that Plaintiff filed a Notice of Delinquent Assessments against Defendant’s property. 4. In addition, Plaintiff failed to comply with the Davis-Stirling Common Interest Development Act, by failing to timely notify Defendants that said Notice of Delinquent Assessments had been recorded against Defendants property. DEFENDANTS THIRD AFFIRMATIVE DEFENSE EQUITABLE ESTOPPEL 5. Defendants reassert and reallege the facts set forth in paragraph 1- 4 above, and incorporates same as reference herein. 6. Plaintiff failed to disclose material information to Defendants prior to such time that Plaintiff filed a Notice of Delinquent Assessments against Defendant’s property. Defendants reserve the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. Dated this XX day of March, 2012 DEFENDANT DEFENDANT
  13. Could someone please critique my answer? I will also be including 3 to 4 Affirmative Defenses. Please tell me if this is overkill at this point - should I just stick to basic denying of paragraphs and eliminate the Objections & Motions to Strike? Now comes the defendants and hereby specifically answers the allegations in plaintiff’s complaint, to wit: AS TO THE FIRST CAUSE OF ACTION 1. Defendants DENY having information and knowledge sufficient to form a belief as to the truth of the allegations at paragraphs 1. 2. ADMITT 3. ADMITT 4. Objection Hearsay, Exhibit “A” of Plaintiff’s complaint states legal description of an unknown property, and not that of Defendants. Defendants request the court to strike exhibit “A” and Paragraph 4 of the complaint as not in conformity of the law. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 4. 5. Objection Hearsay, Lack of Personal Knowledge, Ambiguous, Defendants request the court to strike Paragraph 5 of the complaint as Plaintiff's failed to attach necessary writings to the complaint. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 5. (REFERS TO DECLARATION, WHICH WAS NOT INCLUDED) 6. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, and calls for a conclusion. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 6. (REFERS TO DECLARATION) 7. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, and calls for a conclusion. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 7. (REFERS TO DECLARATION) 8. DENIED. Paragraphs 8 calls for admission of matter defendant has denied and thus it is improper. (REFERS TO ACCOUNT STATED, WHICH WAS NOT INCLUDED) 9. Defendants DENY Plaintiff's allegation paragraph 9 and demands strict proof thereof and authenticated proof thereof. 10. DENIED. Paragraphs 10 calls for admission of matter defendant has denied and thus it is improper. 11. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, and Calls for a conclusion. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 11. (REFERS TO DECLARATION) 12. Defendants DENY having information and knowledge sufficient to form a belief as to the truth of the allegations at paragraphs 12. 13. DENIED. Plaintiffs have not provided all statutory notices as required by the Davis-Stirling Act. AS TO THE SECOND CAUSE OF ACTION Defendants hereby repeat their objections, motions, and re-answer each allegation contained in paragraphs 1-13 of this Complaint as if fully set forth herein. 14. Defendants DENY having information and knowledge sufficient to form a belief as to the truth of the allegations at paragraphs 14. 15. Defendants DENY having information and knowledge sufficient to form a belief as to the truth of the allegations at paragraphs 15. (REFERS TO ACCOUNT STATED) 16. DENIED. Paragraphs 16 calls for admission of matter defendant has denied and thus it is improper. 17. Defendants DENY Plaintiff's allegation paragraph 17 and demands strict proof thereof and authenticated proof thereof. AS TO THE THIRD CAUSE OF ACTION Defendants hereby repeat their objections, motions, and re-answer each allegation contained in paragraphs 1-17 of this Complaint as if fully set forth herein. 18. Defendants DENY having information and knowledge sufficient to form a belief as to the truth of the allegations at paragraphs 18. 19. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, and calls for a conclusion. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 19. (REFERS TO DECLARATION) 20. Objection Hearsay, Lack of Personal Knowledge and calls for a conclusion. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 20. (REFERS TO DECLARATION) 21. DENIED. Paragraphs 21 calls for admission of matter defendant has denied and thus it is improper. (REFERS TO ACCOUNT STATED) 22. Objection Hearsay, Lack of Personal Knowledge and calls for a conclusion. Plaintiff’s have not shown they have duly recorded a Notice of Delinquent Assessments against Defendants property in Exhibit “A”. Defendants request the court to strike Paragraph 22 of the complaint as not in conformity of the law. Without waiving their objection, defendants lack information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 22. Dated this XX day of March, 2012 DEFENDANT XXXXXXXXXXXX DEFENDANT XXXXXXXXXXXX
  14. Seadragon or 1st step, or anyone, can you offer some advice? Considering the numerous errors made by the Plaintiff and their attorney, I'm now debating whether to file a motion to Strike/Dismiss or an Objection to the Complaint. Reasoning: 1) The Plaintiff (HOA) improperly recorded the lien on my property. 2) The Plaintiff also failed to notify me within 10 days after recording the lien (via CMRR or registered mail) that a lien had recorded. (Came 1 month after recordation) 3) The Plaintiff's atty filed to judicially foreclose on said lien without first engaging in formally requested IDR/ADR. This is a viloation of the Davis-Stirling Act as well as the HOA's own collection policy. 4) Plaintiff's complaint includes attachment "Exhibit A", which is a legal description of my property. "Exhibit A" is wrong. 5) Plaintiff's complaint states principal amount owed by defendants is increasing by a monthly assessment amount of $XXX. This amount is incorrect. To me these errors would seem sufficient grounds to strike or at least object. Do either of you agree? And if so, would i file either motion with my answer or at a later time? (I could really use the extra time to properly put the motion together but if need be, i'll do it now) Thank you in advance
  15. We have vehicle gates that require a transponder, but people always sit and wait for a resident to drive in and follow them. No doubt he did that. We have video too but's it's on a 7 day loop so it's expired. Besides zero chance the HOA would pull video for me. I'll research how to quash service, that would allow me another month to prepare...would be great