There are just 2 cases at OAH, opened within a month of each other. Curiously, as far as I can see, both show a Motion to Dismiss being filed in place of the usual Answer to the homeowner’s Petition. Both are preceding along as of this writing.
Is this just a coincidence or a new plan to defeat homeowners? The Motion to Dismiss is a forceful “counter-attack” by the HOA as it imposes a Response with detailed facts and evidence. (Arizona is a “notice” state, which means a detailed compliant need not be filed, just a plausible statement of facts. The details coming forth in discovery during the trial.)
A granting of the motion kills the case right there, without any other hearing, without the Petitioner able to “get his act together.” Most Pro Per homeowners don’t realize that they can seek more time to respond to this quick onslaught by the HOA.
The burden is on the homeowner to establish that there is a controversial issue at hand, and that that issue falls within the jurisdiction of DFBLS/OAH – a violation of the statutes or governing documents. He must specifically refer to a statute(s) or a governing document provision(s) with proof that it has been violated. Failure to overcome the motion to dismiss ends the case.
Under R. Civ. P. 12(b) a motion to dismiss can substitute for a pleading Answer.
[...] in particular HB 272 4 and SB 1162, challenged this assumption (sadly, they were defeated). See Arizona HOA cases update — OAH and HOA adjudication at OAH: a rebirth of constitutionality, abuse, and legislation. There is no [...]