At the recent POHOA Annual Homeowner’s Meeting, Ms. Hutchinson, the Treasurer and Board Member, claimed in her 3-point response to Mr. Flanary that it was a “homeowner issue” if a homeowner files a complaint against the CAM. And, of course, that, in turn ties into the narrative that filing a complaint against a CAM is “harassment” of either the CAM or the Board. In fact, this narrative, particularly when aired at a public meeting while the investigation is still ongoing is evidence of retaliation against the complainant.
And, to be perfectly clear, what is at stake when a homeowner files a legitimate complaint is not whether or not a contractual relationship continues, but rather whether the individuals holding credentials issued by CAI or CAMICB should reprimand, censure, or revoke such credentials for a violation of their Standards of Professional Conduct.
For those not familiar, CAI stands for Community Association Institute. It is the primary organization in the United States that offers for-profit information and credentials for those who are Attorneys, Community Area Managers (CAMs or Property Management Companies), and now also HOA Boards with a new credential just launched in October of 2021 called the Board Leader Certificate.
These credentials are also available in some states, like Nevada from different organizations. I spoke this week with the Ombudsman’s Office that oversees everything HOA in Nevada, and he explained to me that CAI’s credentials are certified or accredited by the state. This means that while CAI’s opinion on how HOAs should operate, which is then a fundamental and important point in evaluating the curriculum they offer, the State of Nevada ensures that there is a level playing field in terms of telling Board Members what they should and should not do.
This also addresses what is occurring, or perhaps not occurring, in most of the rest of the United States – CAI enjoys a near-monopoly on this business of educating the Attorneys, CAMs, and Board Members, and therefore the attorneys, in particular, speak with authority as though their OPINION is settled law. In some cases, it has the feel of CAI acting as though they are the Supreme Court of HOA Law. But, sometimes, like everyone, their opinion either doesn’t win the day in courts or legislatures, or is even flat-out wrong. A perfect example is their position on compliance with the Fair Housing Act’s change in 2016, introducing the “Quid Pro Quo and Hostile Environment Harassment” rule changes. They opposed the changes in 2015 as they were being considered, protested their implementation in 2018 with a white paper indicating they were not including this in their curriculum, and then they reversed in January of 2021, when they finally admitted not only was this the law, but that HOAs had an obligation to know, understand, and act in respect of FHA law.
In that 5-year interim, which coincides with my litigation on this area of law, we have many HOAs that followed CAI’s lead and defiantly refused to comply with this change in FHA law. Volunteer Board Members, who arguably have some sort of right to be ignorant of the law (and POHOA Board Members have made this into a mantra: “We aren’t attorneys!”), are then caught in a position of either going along with the advice from ill-informed attorneys adhering to CAI guidance, or to listen to other attorneys who offer a different perspective. Namely – yeah, you might not agree with the law, but its still the law.
So, the question arises about what happens when we have a CAM that is either operating outside the law or is not compliant with the Standards of Professional Conduct that they voluntarily agree to when they are issued a credential? And, what role does an HOA Board have in this process.
Leaving aside an analysis of the credentials offered by CAI directly, because Trademark Property Management Group does not appear to hold any, we can focus on the sole credential offered by CAMICB – the Community Association Managers International Certification Board. They offer a credential to Community Area Managers called CMCA (Certified Managers of Community Associations). You would think that the State of Colorado would require via licensing of CAMs a requirement for managers to have such credentials, or get one from either the state itself, or from an alternative vendor who is accredited to give such credentials. That’s what Nevada does, so why not Colorado?
Well, in fact, we had for a few years a licensing program in Colorado, and DORA (Department of Regulatory Agencies) was in charge of the program. It was up for renewal in 2019, and both houses of our legislature passed a bill that would have continued it. But, Governor Polis vetoed it – partially on the basis that the bill did not provide enough protection of homeowner rights (See Executive Order D 006 from 2019). As a result, we return to the Wild West, and now CAMs can do whatever they please in a completely unregulated market.
In October of 2021, DORA issued at Sunrise Report, which aimed to ask the question about whether or not the Legislators should consider reinstitution of a licensing program for CAMs. The simple answer is that they do. And, if you read the report, you can see that unlicensed CAMs have created a wide variety of issues, and even when the licensing program was in place, they found CAMs that were committing outright felonies.
So, while there is currently no state agency that enforces rules on CAMs, a homeowner who notices a violation of the Standards, or non-compliance with the law is then left with only one option for action: To use the complaint process created by CAMICB. There is literally no other action short of litigation – which is likely to fail, but most homeowners are not given an education in how the law is stacked against them. Not the least of which is a requirement that a homeowner prove to the court that they entered into mediation or attempted to resolve the complaint elsewhere prior to filing litigation – and most of the time, the clock is ticking with 1-year statutes of limitations.
Therefore, all that an HOA has to do, or any CAM has to do is simply refuse to participate in mediation, refuse to meet with the aggrieved to find a solution, have a hearing in the open with other homeowners able to observe, or frankly anything. In fact, the most common response is: Accuse the homeowner of “harassment”. This is how we end up with Anti-Harassment Policies (recommended by CAI-trained attorneys), which essentially take the protections most complainants have (Whistleblower type protections) away, allow retaliation that preys in particular on homeowners with mental disabilities, and then often escalates into attempts to create fines that escalate into foreclosure to drive that homeowner from their home and neighborhood.
So, if a homeowner does his research in good faith to research what is the right and proper way to file a complaint, they might use Google and stumble upon the fact that CAMICB exists, and that there’s a thing called CMCA. And, they might also look up the biographies of their CAM, and find them advertising that they hold such credentials. Then they would look for guidance to see if the facts demonstrate a violation or non-compliance, and then determine whether the procedure would address their grievance or complaint. Therefore, if they wish to proceed without being accused for wrongdoing, they would follow that procedure, right?
Well, let’s examine what Ms. Hutchinson is labeling as a “homeowner issue” when it is really a “CAM issue”.
First, the copy of my complaint is a document which, I believe, should not be published during the investigation. Mr. Bielli from VF Law accepted the complaint and said that an investigation was proceeding, which means it was not rejected out of hand. But, with Trademark now quitting, suddenly, with just 30 days notice, and the comments made by Ms. Hutchinson indicating that the Board was refusing to perform it’s duty in the CAMICB process, does that somehow resolve the complaint?
No. The complaint doesn’t aim to have an effect on contracts. The aim is to address whether the CAM should be allowed to continue advertising their CMCA credential, which is how they demonstrate to Colorado HOAs that they are not just some random people with no experience jumping into a business model that gives an HOA power to take away someone’s home over a $50 debt. You heard me right, in Colorado, a Board, its CAM, and the Attorneys can use the powers vested in the CCRs to create a fine, demand payment, and if it is contested, escalate so rapidly that the homeowner can see their home going into foreclosure, often before they can find an attorney, or gather the $100k to defend against it. Even if successful, some see a small debt turn into THOUSANDS of dollars of “settlement”, because, once again, the HOA Law in Colorado (CCIOA) is designed with CAI’s influence to make it nearly impossible for a homeowner to win. And, even they do, they’ll have tens of thousands in legal fees from their own attorney, which Colorado State and District Judges are wary or reluctant to award.
I know what you may be thinking: Andy is maybe imagining all this and blowing it out of proportion. I’d encourage anyone who thinks so to contact DORA. Or research the records from the legislative sessions where all the stories of these things happening are compiled. These aren’t “homeowner issues”, these are abuses of power by Boards, CAMs, and even Attorneys who use their powers and authorities out of proportion with the underlying issue.
So, in the complaint I’ve filed against Trademark, I’ve identified more than half of the CAMICB Standards of Professional Conduct that have facts demonstrating a violation. This is all about things that have occurred in 2021, with a focus, in particular on the fact that Trademark’s manager for our account, who has no experience in the industry prior to becoming our manager (See her LinkedIn page), and who personally holds no HOA related credentials or licenses, took it upon herself to create legal expenses for POHOA by launching a violation complaint that had no basis. She admitted in the October Board Meeting that she did this without the knowledge or consent of the POHOA Board – a very clear violation of the Standards as explained in prose further down their page on enforcement:
“As a reminder, the key reporting relationship in a community association is between the manager and the volunteer Board. The manager is hired by and reports directly to the elected Board of Directors. CAMICB will not become engaged in a matter in which that reporting relationship is in place: the manager is acting at the direction of and with the full knowledge of the elected Board of Directors.”
So, because Trademark created legal expenses with direct contact to VF Law on a “closed matter” for which they knew, or should have known (because they were the ones at and controlling the January Board meeting, and processed the meeting minutes posted on their own website) that the prior attorney had both judged the underlying rule/guideline as “unenforceable” and that it did not apply to “Sprinter Vans”, she proceeded anyways. The result was Mr. Bielli attempting to judge MY INTERPRETATION of the rule as incorrect, when, in fact, he was actually arguing with the prior opinion we, as a community, had already paid $806 to produce just 9 months prior.
But wait, there’s more.
Literally the email thread where this accusation was launched was the one in which I had informed POHOA that I was seeking to run for a position on the Board, and had delivered to them the political agenda I intended to stand for. It’s the same agenda mailed out to everyone prior to the election. But, Mr. Bielli didn’t address that agenda – instead, he responded with an accusation that I was violating the rules, and exchanged a few emails debating “my interpretation”, even though I substantiated it with public facts available to him via the Board, as well as the details from the publicly available January Meeting Minutes. It was a waste of time.
I offered to accept as a resolution that Trademark pay the fees from VF Law from this fiasco. My offer was ignored (neither accepted or rejected, nor countered).
Given the additional problems with dishonesty, a failure to know or understand CCIOA, our governing documents, or federal law, even when I was providing citations to assist them in verifying my claims (which they then refer to as “voluminous” emails, and try to cast them as “harassment”), it therefore was appropriate to use the CAMICB complaint process.
But wait, there’s more.
So, making sure that CMCA was the appropriate credential, I then researched the biographies on Trademark’s own website. I had researched Mr. David Rand’s biography in August, after my interview with him, which is when I noted his CMCA credential.
His biography is here: https://www.trademarkpmg.com/about-us/david-rand/
It is noted that at the time of the complaint (November 9), there was a long bio about Mr. Rand’s path through his real estate career, how he launched a magazine that was active for a year or two, and then wound up in Fort Collins – and then advertised his CMCA credential. Now, today (December 3), the page has been wiped clean.
Fortunately, the Web Archive captured the page on September 29, 2020 – right at the time they entered into the contract with POHOA. That URL is here: http://web.archive.org/web/20200929132731/https://www.trademarkpmg.com/about-us/david-rand/
So, while POHOA seems to be shirking it’s responsibility to investigate per the very clear instructions by CAMICB that the Board MUST investigate, we now have an active cover-up on the basic facts. All of the investigating parties have been notified, and I suppose, at this juncture, we should await to see whether this new revelation leads to a different explanation: That Trademark falsely induced POHOA into a contract on the basis of having credentials and experience that, in fact, it did not.
And, at first glance, that does appear what has occurred. Neither Mr. Rand, or anyone at Trademark appears to have actual credentials because, CAMICB has a searchable database found here: https://www.camicb.org/find-a-cmca
While I did research Mr. Rand’s biography and interviewed him prior to hiring Trademark, and then wrote a nice article endorsing the contract, I was unaware of this searchable database. I have contacted CAMICB to understand whether it is possible Mr. Rand once had this certification and let it lapse (he is not on the revocation list found here), but it seems quite suspect that Trademark would advertise “40 years” of experience when it appears they only began the business in 2017), and then have biographies indicating credentials that are then non-existent.
But, shouldn’t a Board, even a volunteer Board be required to do this due diligence on our behalf? Isn’t there someone like the HOA attorney to advise them that charlatans, which are abundant in CO, giving rise to the need for regulation cited in the DORA Sunrise Report, could be among the bidding candidates? Doesn’t honesty or signs of dishonesty matter in considering hiring such companies?
Apparently not, at least with our current Board who seems to think complaints about such matters are frivolous, and wishes to put the person who notices and files the complaint on trial. We need someone on the board who is cognizant of this environment and will protect the HOA from vendors who misrepresent themselves in an unregulated environment.
But, I believe that due to this false claim by Trademark on their website, CAMICB should ensure that persons who engage in this type of deceit are not elevated in the future by granting them such credentials. And, this underlines the need for DORA to have authorities to protect consumers in Colorado from vendors who behave in this manner.