For those who are relatively new to this blog, or those who haven’t checked in for a while, it seems like there’s a good reason to briefly recap the events of the past 5 years to put them into perspective. Sometimes, an in-depth article about minutiae of things like Document Requests can appear to be making mountains out of molehills. While the larger context is available, it can appear to be overwhelming to piece it together without a guide.
WHERE IT ALL BEGAN
My experience with the HOA Governance Model began in 2016, when I asked for a monthly payment plan. While the HOA Attorney Peter Dauster approved it in writing, the HOA Community Area Manager (CAM), David Pond of Kellison Corporation, deemed it necessary to file a lien on our property for the annual amount of $420 with a legal expense (attorney and filing fee) of over $1200. When I called to ask why, Mr. Pond started SCREAMING at me, which seemed . . . odd.
So, I read the HOA Governing Documents and CCIOA (the state laws governing HOAs), and I saw that I had a right to a payment plan – particularly in an HOA that was trying to collect assessments on an annual basis. I asked for a hearing with the Board, and in a phone call with the Board President, Bill Sullivan, I was told that I was under surveillance, and didn’t deserve a hearing because the agreement with Mr. Dauster wasn’t valid because it was in an email, and not a “wet ink” agreement.
Whaaaaaaaaat?
Yeah, it seemed screwy, so I persisted in demanding a hearing. Which, in spite of every effort to ignore and delay, was finally scheduled 90 days later – after they finally produced documents (their emails) after a document request, revealing their attitudes and predisposition against me. And, instead of Mr. Pond attending, he sent his secretary. And, instead of the entire Board, Mr. Sullivan didn’t show up, and Mr. Palisani wasn’t even told about it. Only Bill Tuminello showed up at this meeting which was held . . . at Mr. Dauster’s law office. Which, again, was kind of a weird way to try to create yet additional legal expense.
The meeting went poorly – Mr. Tuminello turned purple screaming at me from across a board room table, literally spitting in my face. His point: WHY AREN’T YOU PAYING YOUR BILL?
I showed him that I was proceeding with a payment plan Mr. Dauster had agreed to, and in fact, we were 3 payments into the 6-payment plan. You see, at the time, CCIOA didn’t require monthly payments, but rather 6 equal payments. But, since I could see this wasn’t going to address the customer service problems with Mr. Pond screaming at me because he didn’t even want to show his face, but now I had this person I had never met screaming at me, I just decided on the spot to pull out a checkbook and write the check for the remaining amount – in exchange for removing the lien at no additional cost to us. They agreed, and I thought it was over.
Nope. The next month, in advance of the annual meeting, the financial report showed that the POHOA Board had spent $2000 in legal fees to try and collect $420, which demonstrated both poor fiduciary duty, but also a very strange practice which Mr. Pond, Mr. Sullivan, Mr. Tuminello, and Mr. Dauster all considered very normal. Mr. Malisani, the other Director left out of the meetings found this disturbing, and when I asked why, he told me that these folks often went after people they didn’t want to live here anymore.
Whoa.
So, once all this information started to spread in the community, we saw Mr. Pond suddenly terminate the agreement with POHOA. And, weeks later, Mr. Sullivan and Mr. Tuminello both resigned. They had been in power for nearly a decade, and without fanfare, suddenly, we were launched into an era of self-governance with the first open Board seats since the HOA was led by the Builder (the “declarant”).
ALTERNATE REALITY: MS. HUTCHINSON’S NARRATIVE
Years after this, Ms. Hutchinson has used the bully pulpit of being Director to project a different version of events from 2016. In her narrative, our CAM, Kellison Corp., was HARASSED into quitting. She offers no evidence or details. She just makes the claim that their sudden departure was my fault, and then infers that they left because I did something to make them quit that implies I was mean, or yelled, or did something so egregious, they had no choice but to quit.
So, when asking why it is necessary to document what happens in real-time with blogs like this, and with recordings, emails, and other objective proof, it is people like Ms. Hutchinson that create the incentive and need – because they will not relent in acknowledging the facts and evidence that contradict their narratives. It’s laborious and frustrating, but without doing so, those who sit in every meeting repeating their falsehoods end up creating this alternate history for their political purposes.
This is arguably a key issue with HOA Governance, and HOA Self-Governance in particular. When the sole record of an HOA is the Meeting Minutes, it becomes necessary to document reality beyond such warped recollections – which is what our Meeting Minutes quickly became over the years.
SELF-GOVERNANCE: THE EARLY YEARS
When the new Board, which now included Buck Hammond and Keith Knight, we moved into an era where our communications and accounting were suddenly in the hands of the Board of Directors without an intermediary – a Community Area Manager or CAM. That meant setting up Quickbooks for our financial management, and our very first Gmail account.
Participation in 2017 and 2018 was nearly universal. We had 79 of 87 homes participate in a meeting where we decided to address a major problem left by Kellison Corporation. Because we didn’t file correctly with the City of Fort Collins regarding our water allocation, it turned out that we were due a refund of ~$10,000, which was a great discovery. However, there was a related problem going forward – water rates were going up significantly, and we had to choose to either buy a bigger allocation, or convert up to 1 acre of our common area to an unirrigated “natural area”.
A Committee was formed, which did a great job of gathering information and making a presentation, and it was passed overwhelmingly.
But, some homeowners weren’t so pleased. One of them happened to be Mr. Tuminello, who took the email list he had (because he was a former Director) and sent an email to everyone to express his displeasure. Mr. Weatherington wrote to the Board demanding more transparency, which echoed Mr. Tuminello’s sentiments. At the time, we had 9 Directors, but meetings were not open to other homeowners in contradiction with CCIOA, the laws on HOAs in Colorado.
In 2018, meetings were primarily held in various Director’s homes (or backyards), and due to the feedback, anyone who raised a concern received a private invitation to attend. That included some Committee meetings as well. While the meetings were slightly more open, there was no real structure to meetings. They were kind of led with agendas, but they were more like open discussions led by the President.
Concurrently, we created dueling enforcement Committees – the CCR Committee and the ACC. Membership on these committees was limited Board members, so it was arguably just a sub-board – and people like Walker Flanary and Irve Denenberg were on both Committees. Meetings were not publicized, and were held privately in homes. There were no meeting minutes, and the output was enforcement documents that were often hand-delivered to homeowners.
Enforcement was done basically on a whim. Some violations issued by Director Flanary and Director Denenberg gave homeowners 3-4 days notice before fines were threatened. Their priorities included a removing a temporary fence for a dog for a homeowner watching her daughter’s dog while she got cancer treatments, trying to force a homeowner to remove a 6-foot fence they had in their purchase contract when they bought the home, removing signs that advocated “love”, and going after 4 pet ducks owned by a family that 4 young children who had the OK from their immediate neighbors.
THE ENFORCEMENT INCIDENT THAT BROKE THE HOA
But, the worst enforcement was when we had a hailstorm forcing everyone to replace their roofs. Instead of the ACC doing their job and approving each project, a blanket approval was sent by email encouraging everyone to follow the rules which stated to use a specific color “or similar” of roof shingles. One homeowner used a “similar” color, but Mr. Flanary and Mr. Denenberg decided it was a huge deal, and wanted to FINE them $5000 AND force them to replace the roof for $15k out of pocket!
It was at those meetings when I saw, from the inside, just exactly how far off the tracks we had flown. Those owners demanded a hearing, and I shit you not, Mr. Hammond waved a letter from their attorney at one meeting stating that they were represented at the meeting by the letter (instead of granting them an actual hearing). I met with those homeowners privately, and felt that they had a right to use the Appeal process embedded in our CCRs to go back to the owners to overrule the Board if they desired.
But, again, Mr. Hammond claimed he went to Mr. Dauster to ask about whether the Board could be overruled, and Mr. Dauster said no. Odd. It’s right there. So, we asked him to ask again. Still no. So, this time I asked that Mr. Hammond actually SHOW Mr. Dauster Article IX Section 7 of our CCRs, and this time, surprise, Mr. Dauster finally agreed that our documents allowed an appeal.
This resulted in a meeting where the decision to fine the homeowners would be revisited. And, in a hotly contested debate, those advocating for the fines lost 3-2 as those who already had a vote on the ACC and CCR Committee agreed that they didn’t get to vote on an appeal of their own decision while sitting on the Board.
That’s what set the fire. Mr. Flanary and Mr. Denenberg began targeting me for leading that effort in retaliation, and that retaliation has never been addressed. It, in fact, led to the litigation in 2020 that I filed as their defamation, harassment, and intimidation continued outside of Board meetings.
POST-ROOF SHINGLES BOARD
After losing the battle to fine homeowners WHO HAD AGREED TO CURE THEIR VIOLATION, Mr. Denenberg quit the Board. Mr. Flanary didn’t show up for a few meetings. And, Keith Knight was elected as President. President Knight tried steering the Board to have open meetings, to follow Robert’s Rules of Order, and to more competently follow CCIOA and the Governing Documents.
I was elected Secretary, and when I tried to collect documents from Mr. Flanary and Mr. Denenberg, they first dragged their feet, and then turned over only the most minimal documentation of their enforcement operations in 2018. Upon reviewing the documents they did produce, I noted that they were not following CCIOA or our Governing Documents in several instances. In particular, they often would begin fines before the allotted time a homeowner had to RESPOND. There should have been a cure period, and fines should only be levied IF the homeowner didn’t cure the violation.
This isn’t how Director Flanary viewed the purpose and vision of the HOA. He wanted to “catch” people and “teach them a lesson” for having been caught. Which, I told him outright was not exactly community-building. I pointed to how he terrorized the homeowners with the ducks (and their kids), which was completely unnecessary when we found out months later that Mr. Tuminello had given verbal approval for the ducks years earlier. Besides, why was Mr. Denenberg going into this family’s back yard (or peeping on them) to FIND these ducks in the first place? You could not see (or hear) them from the street.
It ultimately led to me filing a Formal Complaint in May of 2019, as it became clear that Director Flanary was engaged in practices that were not compliant with the law. The last straw was finding out that Mr. Flanary and Mr. Denenberg had misrepresented “advice” received from HOA General Counsel, Mr. Dauster, while dealing with the roof shingles. Upon letting Mr. Dauster know that his advice was being misrepresented, he terminated the agreement with POHOA.
Why? Because he had become a witness (of what Director Flanary had done) and cannot be both an advocate and witness as a general principle of law in the United States.
Ms. Hutchinson’s alternate reality narrative is that Mr. Dauster quit because he was “harassed”. Mr. Hammond took it a step further – he accused me of “criminal harassment” and threatened to have me arrested – on an audio recording.
ALL HELL BREAKS LOOSE
In June of 2019, the POHOA Board had a series of meetings and interactions that would set in motion events that have continued to be unresolved for the next 5 years.
At a meeting on 6/13/19, Mr. Flanary held a Special Board Meeting in his basement. My wife and I attended, and I recorded the whole “meeting”. Upon arrival, Mr. Flanary demanded that I give him my cell phone, and that my wife turn over her purse – to be put into another room. HIs concern: being recorded at the meeting. The recorder was already rolling.
I refused, and in a bizarre exhange, his threat to have me arrested for recording the meeting (no such laws exist in Colorado) turned and twisted into threatening to arrest me for trespassing – as Secretary of the HOA at a Board Meeting he scheduled in his basement. I urged moving the meeting to neutral ground, but they were hell-bent on proceeding.
Weirdly, I ended up being the one recommending police be called – because my wife and I felt threatened by a bunch of angry “neighbors” who kind of had us cornered in this basement room. While the Larimer County Sheriff said out loud “this is why you don’t live in an HOA”, he ultimately said we had to leave because Mr. Flanary had the right to have us arrested. So, we did.
This then escalated into a movement to remove the Board. Ms. Hutchinson claims to have led this movement, particularly in recent years. However, the documentation I had been doing for 6 months was given to Matt Clark, who then became kind of an intermediary between the removal committee and some of the existing Board members. Fellow Director, Ben Johnson, who hadn’t been at a Board meeting in months, did not resign along with me, in particular to prevent the use of Action Without A Meeting.
Directors Flanary, Hammond, and Gloria Jones then used their 3-person majority to dismantle the Frontsteps website, which held the documentation of what they had been doing improperly. And, Director Flanary thought he could just ignore the call for a removal meeting, until Director Hammond convinced him that if he didn’t schedule it himself, the petitioners could schedule it on its own.
Ultimately, the meeting was scheduled on 8/27/19.
THE FIRST BOARD REMOVAL – THAT WASN’T ACTUALLY VALID!
The Special Meeting to remove all of the Board of Directors was held at the Fort Collins Senior Center. It was well attended, and we saw the emergency of Matt Clark as a community leader. Jayne Clark was the Chair of the meeting, which was the first and last time we saw a Homeowner’s Meeting that wasn’t controlled by the Board.
One of the key considerations was whether the Board would be removed with a majority vote or 67%. While I was on the Board, I wasn’t included in these negotiations. I’ve been told that Mr. Hammond took the lead for the Board, and ultimately agreed that although CCIOA said 67%, it somehow didn’t matter – and that other statements in the Nonprofit Act and our Governing Documents were correct in stating it was a majority vote that could remove the Directors.
Well, turns out that is objectively and patently false.
We did not achieve 67% (44 of 69 votes = 63.76%), yet we accepted that the Board was removed. When Ms. Hutchinson, who as recently as 2023 claimed she was the one who was responsible for the removal, takes credit, she avoids mentioning that it wasn’t really a legal removal.
As a result , we saw the emergence of what was essentially two political parties in POHOA – one led by Mr. Flanary, and the other led by Ms. Hutchinson. Mr. Flanary’s group had the support of less homeowners, but demanded representation on the Board. They demanded that the Board be expanded from 5 members to 9 members, and that earned them the nickname “The Niners”.
They called themselves, Poudre Overlook Advocates (POA), and even sent out mailings (anonymously) that we later learned were actually authored by Mr. Denenberg. This group showed up at Board Meetings and were disruptive, which eventually led to a meeting at Ms. Hutchinson’s home in December of 2019 where she said she and her children felt threatened.
Matt Clark, who was President at the time, resigned shortly afterwards. He had experienced other issues of intimidation at his home with members of this new political party. It wasn’t what he signed up for.
HOSTILE ENVIRONMENT HARASSMENT
After leaving the Board in August of 2019, I began this blog. I also began to engage the political process at the Colorado Capitol, including stakeholding sessions to address the underlying laws with CCIOA. My experiences from 2016-19 taught me that there was a huge problem with the HOA Governance Model in Colorado – the lack of enforceability of the statutes because there was no state agency to enforce them.
I learned that private litigation was the only means of enforcement, and the burden on homeowners was incredible. People had to spend hundreds of thousands of dollars out of pocket, often without reimbursement from the court, to hold HOA Boards accountable. So, I began working with other homeowners across the state to address a multitude of issues with HOA Governance. I found that by working with activists and advocates, most of what I saw happening in POHOA was not just a pattern or symptom, but that these things arose because of the influence of Community Associations Institute (CAI), who claims to represent homeowners, but is actually an industry lobbying organization.
This opened my eyes to a different part of the law – federal. And, the fact that FHA Law was changed in 2016, which required an HOA to intervene when there was a condition known as Hostile Environment Harassment. By any measure, that was what was happening in POHOA, but also by the specific criteria in the law, the reaction of Walker Flanary and Irve Denenberg’s political group, Poudre Overlook Advocates (POHOA) at the December 2019 meeting checked all the boxes.
The next step was to file a Formal Complaint to the POHOA Board, which was now led by Director Jennifer Hutchinson after Matt Clark resigned. I honestly expected them to admonish the group, and perhaps consider limitations on participation at meetings. What I didn’t expect is that it would put a target on my own back. Or, reveal that Ms. Hutchinson already had it out for me.
In hindsight, it is clear that asking an HOA Board to intervene in such situations is at least as difficult as asking an employer to get between employees who are hostile to one another. It’s not an envious position. But, the fact that the HOA Attorney, who was once again Mr. Dauster (yeah, we went right back to him after several months), had no familiarity with FHA law any more than he knew about the details in our own governing documents, made getting action on this problem basically impossible.
I learned a year later, once in litigation, that Ms. Hutchinson, Mr. Dauster, the insurance company (American Family Insurance), were mocking me behind my back. They stupidly put attorney-client emails into a submission packet to the Colorado Civil Rights Division, presuming that they’d be kept confidential – instead, they were part of the response back to me after filing a complaint. Had I known they would dig in their heels, I might have taken a different approach to rally support from other homeowners.
But, also in hindsight, relying on your neighbors to put in the time to know and understand detailed areas of law, combined with the risk of putting retaliatory marks on their own back, was probably just as undesirable.
Without a state or federal agency to simply make a complaint, turn over the facts, and get adjudication and action without expending tens of thousands of dollars, it is simply not possible to enforce the law or get justice unless . . . well, that’s the other thing. Even when when you have the money, I’ve met people who have pursued justice through the courts and there are two key things that work against homeowners in Colorado making justice nearly impossible if you include repayment of your legal fees:
- The Business Judgement Rule allows Boards to have no personal accountability/liability, including using ignorance as an affirmative defense
- The standard for Board accountability in Colorado is “substantial”, so even a Board that is violating the law can avoid accountability because they got some things right, but not all things right
But, in January of 2020, I don’t yet know that. A good reason to type it out for the thousands of homeowners in Colorado who repeat these experiences annually.
The other key to understanding why unenforceable laws governing HOAs is because they are designed by attorneys for attorney profit. You see, it’s not an error or mistake that homeowners and boards are pitting against one another. It creates disputes that only a small specialized group of HOA attorneys can then run up many hours of legal fees – and they honestly don’t care who wins. They do. They profit from disputes, not peace. So, it’s not a flaw, it is the design – and why the HOA Governance model may be FUBAR in the common vernacular.
I was confident that I was witnessing a war between two groups of homeowners that had escalated not just to verbal arguments – one Director was threatened at his home with what appeared to be a gun. That was the intent of the offending homeowner – although what he had in his pocket was actually a hand tool from his garage. It had the intended effect, and led to the resignation of that Director.
While that homeowner eventually apologized (witnessed by two other homeowners), it didn’t change the fact that these disputes had escalated to meet the definition of Hostile Environment Harassment. And, per FHA law, the POHOA Board had an obligation to intervene, or be found in violation of the law themselves.
Ms. Hutchinson responded with: “We don’t get involved in neighbor to neighbor kerfuffles”. Pedantic and insulting. And, she went none other than Mr. Tuminello to back her up at the 1/15/20 Board Meeting, which was recorded.
I gave it another 5 months to have a hearing, which was denied, and I even went to Mr. Dauster to try to get action or a response. I exhausted every possible avenue to resolve the dispute without litigaiton. Facing a statute of limitations, I finally filed on June 1, 2020. Exactly a year from the day when Mr. Hammond first told me he considered my emails harassment, intimating that he considered them criminal. A false accusation of a crime in Colorado is per se defamation, and I felt strongly that the rumor brigade that was led by Mr. Hammond, Mr. Flanary, and Mr. Denenberg required intervention – as it was part of this Hostile Environment Harassment.
Unfortunately, part of the issue was that I didn’t have some documents in hand, and was told by reputable attorneys at Robinson & Henry that I could get them through discovery. But, I couldn’t afford their services, so I tried to use a less expensive attorney – and as a result, could not move past a weak Motion to Dismiss.
THE LITIGATION
While the litigation was not allowed to proceed, a simultaneous case with CCRD did require that POHOA respond in a detailed manner. And, as a result, some of the documentation that I sought came out – just in time for POHOA attempting to assign legal fees to me. As a result, I was able to prove to the Judge that my case was brought in good faith – and gave me grounds for an appeal. So, Robinson & Henry was hired late in the case to bring an appeal.
The judge ultimately ruled that my filing attorney made technical mistakes on one motion, and assigned legal fees related to that motion – and threatened him with sanctions. It created a legal triangle, where I was suddenly in a position where my representation was flawed, creating a case between me and my own attorney. And, because American Family was not being reimbursed for their legal fees (which didn’t cost POHOA any money), they had no appetite for an Appeal – particularly when it became obvious that Ms. Hutchinson was actually hiding information that was unfavorable, and turned in affidavits that had demonstrable falsehoods.
So, the obvious path forward was to settle. And, a Settlement Agreement whereby my filing attorney paid the legal fees to American Family Insurance (and I paid no legal fees) and POHOA agreed to not try to claim they “won” anything was entered on 6/17/21. You’d think it was over then.
When I asked Robinson & Henry why I shouldn’t just appeal when I knew the facts supported my original allegations, they asked me whether or not the POHOA Board would likely start complying with state and federal laws going forward. I said, probably not, but maybe they’ve learned a lesson.
They told me that in their experience, usually other homeowners will recognize that I was raising valid issues, and the election process would cycle out the bad actors. But, they agreed that once someone shows that they don’t want to really follow CCIOA, they just continue to do so – and are empowered to do as they please when they learn how unenforceable the law is. So, while letting go of the facts in hand was perhaps giving up on a case that could ultimately be won, there was a future where I could take what I’ve learned, and try to make sure that any new Directors understood where the boundaries were.
Their final advice: “Document, document, document”
THE EMPIRE STRIKES BACK
Within a month of the “settlement”, however, it became painfully obvious that the POHOA Board didn’t intend to let the issue just remain settled. It is my honest belief and opinion that they began a process to run me and my wife out of the neighborhood.
And, now I can describe the steps simply because it turned out that they were taking advice from two of the top attorneys in Colorado who exploited loopholes in CCIOA to essentially run up huge legal bills, assign them to an individual homeowner, and then use the threat of foreclosure to force them to sell their home, or in the worse case, actually use foreclosure to not just collect predatory legal fees, but to actually steal the equity.
Quite a conspiracy theory, right?
Well, turns out that not only did they hire two of the top 7 offenders in the summer of 2021, but that they created this elaborate scheme to use “document revision” to exploit the loopholes in Sections 209.5, 316, and 123 to create new clauses that made assigning “individual assessments” to homeowners that could include unlimited legal fees – for anything.
In July of 2021, just weeks after “settlement”, we hired Altitude Law – who has abundant information advocating revising governing documents to put in “individual assessments”, “supplemental assessments”, or “default assessment” clauses into governing documents. The purpose TO CREATE REVENUE for the HOA.
Astonishingly, Altitude Law publishes brazen articles on the subject like: NEED MORE MONEY FOR YOUR ASSOCIATION? HERE’S HOW TO GET IT!
Keep in mind that for post-CCIOA communities, the supplemental assessment provision must be stated in the declaration in order to charge back the expense to the unit(s). C.R.S. §38-33.3-315(3) of CCIOA provides the following:
…Post-CCIOA associations without the above language do not have authority to charge back common expenses against less than all units, as they must charge them back per the allocation formula set forth in the declaration, i.e., equally or some other formula such as by square footage, number of bedrooms, etc. If the association does not have supplemental assessment authority in its declaration, it should consider amending the declaration to include it. And, for those who want to generate more revenue based on the supplemental assessment authority, you might want to consider adding the following to the declaration, as applicable:…Pet Assessments: Similar to rental assessments, some associations are amending their declarations to require pet owners to pay additional assessments for costs incurred in pet clean-up and damage. That way, instead of spending money on enforcement (and trying to figure out which dog ‘did the dirty deed’), associations are levying supplemental assessments against all dog owners to cover the various fees incurred in clean-up (e.g., professional pooper-scoopers, poop bag dispensers) and damage (e.g., costs to re-sod).
It’s not a conspiracy theory when it’s literally an advertisement for services. And, we agreed to use their services to put this type of clause into our documents.
But, for some reason, in August of 2021, the POHOA Board pivoted to VF-Law instead. Although I’ve asked for the documentation of the emails leading to the Action Without A Meeting (AWAM), which they are legally required to produce, the POHOA Board has fought tooth and nail to avoid disclosing them.
And, by that time, we had hired Trademark Property Group to run interference for the Board – so that they wouldn’t have to respond directly to questions. And, Trademark then tried to claim that they’d need to be paid $100 per hour to produce documents that CCIOA requires the Board to disclose!
In the same month (August of 2021), I began working with a group called Colorado HOA Homeowner advocates. I even mentioned the fact that we had in our group an attorney, Doug Marsh, who had experienced the legal fees-to-foreclosure scheme with #2 on the ProPublica list – attorney Tammy Alcock. His experience became the basis for HB22-1137, which ultimately forbid HOAs from turning fines into foreclosures – a practice that VF-Law’s attorney who did our document review, Lisa Cancanon, to flee the industry as she was directly involved with the most egregious foreclosures in Green Valley Ranch (which was all over the news in 2022 as the new law was passed).
VF-LAW LEGAL EXPENSES
The POHOA homeowners were sent a survey in July of 2021 asking what things they might want to change in the governing documents. It was a ruse, whether anyone participating knew it. The real purpose was to follow Altitude Law’s blueprint for being able to assign costs to a homeowner, and in effect, have unlimited powers to drive out homeowners who fell out of pleasure with the Board. We could call this the nuclear option.
But, something strange happened between August and December of 2021. In the run up to “document revision”, there was supposed to be legal review and then a pitch. And, then at the Annual Meeting, the homeowners could decide if they wanted to go forward with a $10,000 expense to change our documents. The cost to “review” our existing documents was supposed to be maybe $1000-2000, but we never really got clear answers.
And, then things got really weird in November of 2021. Trademark, who had assigned us a manager who had no prior experience in property management, yet touted a CMCA credential, was found to have falsified their CMCA credentials when a complaint about their performance was submitted (by me, of course). Trademark then wiped their website of the falsified info (yet the Internet Archive retained it), and then suddenly terminated the relationship with POHOA.
Of course, the reason they stated was that my emails made them quit. Then, this ridiculous statement that in order to provide customer service to me alone, it would cost $4000 a month.
But, this was a bit of a smokescreen. Because one of the complaints about Trademark, and in fact the POHOA Board led by Ms. Hutchinson, was that they simply gave Trademark the ability to create unlimited legal fees by having a direct relationship with OUR attorney at VF-Law.
This was a new approach at POHOA because what I suspect Trademark did was take any email submitted and sent it to the attorney for a review. ANY EMAIL. Anyone with legal experience knows that you SUMMARIZE for an attorney, and you NEVER just dump all the emails in their lap – it costs a FORTUNE.
But, when your plan is to assign these costs to the homeowner sending the emails, and you are planning to revise documents in the coming months to create that exploitable loophole by following Altitude Law’s blueprint, you don’t worry about those mounting legal bills. You let them run high as the sky, and recoup the money later.
This, of course, isn’t said out loud. And, being a political situation as well, Ms. Hutchinson then did something that has never been fully explained or resolved – she took over $9000 in legal bills received BEFORE the Annual Meeting in December of 2021, and delayed payment. She split the bill in two, and paid part on the last day of 2021 (12/31/21, literally), and then pushed $5000 into the 2022 books.
This accomplished the goal of keeping the fact that overspending on the legal fees (our budget for the year was only $500), and kept it from arising at the December 2021 Annual Meeting – where it could have derailed the Document Revision package that we were all voting on. Explaining why this enormous amount of fees was run up would have been . . . difficult.
So difficult, in fact, that when I pressed in the Spring of 2022 for the full details, Ms. Hutchinson and the entire Board QUIT (at once) . . . along with the attorney from VF-Law. The fact that HB22-1137 had now passed, and it became obvious that the goal of inserting the “individual assessment” clause (it is in the draft documents, and verifiable) into our new documents wouldn’t work – particularly if the goal was to drive my wife and I out of our home with foreclosure on these fees if we could not pay them quickly enough.
In other words, the wheels fell off their cart, so they ran away.
The void was partially filled with the election of Clay Jones (whose wife was part of the original dispute in 2019, as well as the Board that pursued “document revision”), and Lora Ballweber, who was part of the original Niner/POA political group led by Walker Flanary. And, of course, I offered to serve.
Although I asked for these documents in August of 2022, Treasurer Clay Jones literally held out his hand and demanded $334 to see them. So, it remains to be seen what is actually billed on the VF-Law invoices. And, a new document request just went out on 4/16/24 for these very same documents.
THE NINERS TOOK OVER THE BOARD
By October of 2022, it became clear that I was seeking the information about what had occurred in 2021-22, and that now President Ballweber was willing to literally destroy all of our email records to avoid that information becoming public. Unfortunately, she wasn’t successful, as I managed to protect and preserve that information – which had clues about the VF-Law billing in them.
What I learned, however, is that the main Gmail account was avoided for certain information from VF-Law. In fact, based upon CC records in many emails, Ms. Hutchinson, Ms. Jones, and others used personal email accounts to get legal advice, as well as handle the invoices. The new Board could not find them, yet, there were some emails that the prior Board forgot to delete before they left (and took a copy of the gmail account with them, which is another story).
As a result, we could tell that over $9,400 of invoices were received (in 2 invoices), prior to the December 2021 meeting, and that they were not paid until months later. And, because we know that most of the “document revision” billing occurred in 2022 – and that it amounted to more than $10,000, we end up with approximately $11,000 in legal fees spent that had little or nothing to do with document revision. And, Boards and Directors willing to quit to keep it a secret.
I was voted off the Board in October of 2022 without any cause stated, other than Mr. Flanary referring to the fact that I had once filed litigation against the Association. My rebuttal was interrupted, and attempts to tell any of this story were literally shouted down.
But, once again, I joined the Board in December of 2022, along with Walker Flanary and Dr. John Tunna. Dr. Tunna actually had accounting experience as well as experience with Quickbooks. Yet, he wasn’t ever allowed to look into the POHOA books. In fact, other than Mr. Jones, it is unknown whether anyone but Ms. Hutchinson has been in the books since that slick move of changing the dates of VF-Law invoices in 2021.
But, then the unusual decision was made unilaterally by Treasurer Clay Jones to “hire” Ms. Hutchinson as a “consultant” for $500/mo without getting bids – and now we learn, also without a written contract!
Described a different way, now we are paying a premium to a homeowner to keep our own books form us!
Yet, no one in the HOA is compelled to show up at meetings or ask questions about any of this. My cohorts working on HOA issues with the legislature are literally astounded at these circumstances!
However, it is curious that in January of 2023, after raising these questions about our legal expenses, Ms. Hutchinson led the effort not to just remove me, but to change the Bylaws to make removal an automatic 3-year ban – even without cause! When the full context of the events in the years prior are factored, it is quite unusual indeed – and points to an extreme effort to keep our books secret!
At the end of 2023, with two Board seats open, however, President Ballweber uses some questionable tactics and rulings to prevent me from rejoining the Board in the December 2023 election – which led to yet another Formal Complaint that remains unresolved. However, the election of her husband (something that is illegal in many states) to fill one of the two seats because no one else in the neighborhood wants to participate any longer completes the full takeover of the Board by Walker Flanary’s Niner/POHOA group.
And, as Dr. Tunna learned, trying to work with this group on anything other than what they want on the agenda is next to impossible. If they don’t want to do it, they dismiss your agenda items, and if they want to do it, you get steamrolled. Logic and reason are simply useless in what becomes an autocracy.
And, because Director Flanary appears to now have more proxies in his back pocket than all the other votes of the few who are participating combined, literally anything they want to do is rubber-stamped by the “homeowners”, as participation in the last meeting only rallied 27 votes – 15 of which were proxies.
HUTCHINSON COMES BACK
It was therefore quite surprising to see that the last “open” seat (still contested by me) was filled by Ms. Hutchinson. Not only his her $500/mo “verbal agreement” a conflict of interest that the rest of the Board has waived the right to even seek lower bids (many bids for $320-360/mo were found by simply asking some local Quickbooks Bookkeepers to quote the job 2 weeks ago) or rethink whether we should be paying someone who previously “volunteered” to do the job for free. We’ve crossed the Rubicon in some people’s eyes.
But, the return of Ms. Hutchinson to the Board resulted in her revisiting some of this past history at the 4/9/24 meeting. It’s clear that the “settlement” that she herself negotiated and signed, isn’t really settled. She still has an axe to grind with me, and her attempts to revise and whitewash the POHOA recorded history runs afoul of the facts.
One of those facts that I believe is worth reviewing is the expenses to VF-Law in 2021. The Board is obliged to provide the detailed invoices, and that new document request lands in their PO Box tomorrow. Whether they try to create a deterrent cost, or float a lame excuse, I do not anticipate that they will turn over the documents willingly. There’s some super important reason why this has been kept a secret for 2-3 years, and they get really upset when they are pressed on related questions. It’s a tell.
What’s clear is that we now have a Board that has two political rivals. Ms. Hutchinson was visibly deflated when the vote to remove Walker Flanary on 1/25/23 was insufficient. I mean, with a 67% criteria and all of Mr. Flanary’s proxies, any junior legislative aide could have predicted the outcome in advance. But, given that she still has pride in the removal on 8/27/19 under the wrong majority standard, it’s not impossible to believe she simply miscalculated.
The question is whether she realized that by rejoining the Board, particularly taking over 10% of the HOA revenue into her own bank account with only a “verbal agreement” challenged by much lower bids, and absolute control over visibly of our books, why calls to revisit some of these past financial decisions is, in fact a legitimate political question.
What’s yet to be seen is whether or not there will be any split votes between these rivals, or whether she has been assimilated like the Borg on Star Trek. Resistance is futile, as they say on the show.
One thing’s for certain: The questions about management of our collective finances is at the center of the disputes, and the more we find out, the more questionable our practices appear.