The Saga of OAH constitutionality continues

  

There are a number of appeals possible:  the default decision it self; the denial of my motion to intervene for failure provide an explanation for the denial; the appeal of the denial itself based on the explanation from the judge.  The deadline is 30 days from the decisions to file a notice of appeal, around the end of March.

 

On March 4th Judge McMurdie had filed a Minute Entry that raises questions concerning the integrity of the Maricopa Superior Court. The “filings” are my letter of facts and exhibits.

 

 

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

 

LC2008-000740-001 DT 03/02/2009                                    CLERK OF THE COURT

 

HONORABLE PAUL J. MCMURDIE

 

PHOENIX TOWNHOUSE HOMEOWNERS

ASSOCIATION

 

v.

ARIZONA OFFICE OF ADMINISTRATIVE

HEARINGS (001)

ARIZONA DEPARTMENT OF FIRE BUILDING

AND LIFE SAFETY (001)

HONORABLE BRIAN TULLY (001)

RON MERITT (001)

JOHN HERNANDEZ (001)

GEORGE K STAROPOLI

CAMILA ALARCON

 

 

MINUTE ENTRY

 

The Court has received Intervener’s, George Staropoli, miscellaneous filings.

IT IS ORDERED striking these filings.

 

IT IS FURTHER ORDERED that the Clerk of Court shall not accept any filings from

George Staropoli in this case.

 

 

 

 

 

 

Wild west justice for HOA owners

The Arizona Superior Court special action appeal of an administrative law judge decision upheld, and affirmed last week, the order that the  administrative hearing adjudication of HOA disputes was unconstitutional.  This affirmation was made one day before the time limit for a response set by the Superior Court Judge, and on the same day a letter introducing new facts in the case was received by the judge. The facts showed that there were no real parties in interest prior to the filing of the appeal and that the case was “fictitious.”  There is no acknowledgement of the letter nor a response to these important facts by Judge McMurdie. This is a gross miscarriage of justice!

 

It is the policy of Arizona to favor the HOA industry with special laws and privileges that deny its citizens “fair trial” due process and the equal application of the law.  Perhaps in these times of financial hardship on the state, and on developers, homebuyers should speak out with their pocketbooks and buy homes at substantial discounts that are not in HOAs.  Homebuyers, avoid the mismanagement of HOAs; the blind adherence to arbitrary rules by “political machine” ruling boards; the divisiveness caused by the HOA attorneys who insist on enforcement, with no compassion; the lack of support and protection from your public government; and without having to be married to your neighbors who will not join in your just  fight for fair treatment against board abuse.  Ask yourself, “Who needs it?” 

See The State of Arizona will not protect buyers of HOA homes!

New facts in HOA constitutionality due process case

Please note that Judge McMurdie’s failure to provide an explanation of his denial (Intervenor motion denied in OAH fair trial constitutionality case), which is necessary in order to determine the grounds for an appeal, is itself appealable as an abuse of discretion. However, the following letter had to be first delivered to the attention of Judge McMurdie:

Re:            LV2008-000740, special action from OAH 08F-H089004-BFS,   new facts

 

Dear Judge McMurdie:

 

 

If I had been permitted to intervene, these facts, discovered subsequent to filing the Motion to Intervene, would have been presented appropriately. Rule 60(c)(6) “does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.” 

 

In short:

 

1.      Petitioner and real party in interest, Ron Merrit, had quitclaimed his deed to his co-owned property in the Phoenix Townhouse subdivision on October 10, 2008, prior to the superior court special appeal of October 23. (Exhibit 1).  I believe this issue became moot at that point.

2.      The new co-owner is the legal person of Big Henge Enterprises, LLC whose two members are Merrit and Hernandez.  Big Henge is not  a successor in interest to the Merrit Petition.

3.      John Hernandez, the other real party in interest, and co-owner of the Phoenix Townhouse with along with Merrit, did not file a Petition, but was falsely named as a defendant in the special action.  Hernandez is listed on the Petition as a homeowner, but did not sign it! (Exhibit 2).  It appears that there are no valid  real parties in interest in the special action.

4.      There is no legal entity named “Phoenix Townhouse Association”, the stated Plaintiff.  The name appears on the court/OAH filings and in correspondence attached as exhibits to the supplemental Petition filed by Merrit on September 22.  There are no records or names of any directors of the board or president on any of these documents. The “Association” named in the Phoenix Townhouse declaration is “Phoenix Townhouse Corp.” (Exhibit 3) whose president is Richard Flood with Maggie O’Dell as a director (as shown on the ACC annual reports).  There is no trade name filed as such.

5.      The 2004 notice filing required under ARS 33-1807(J) also falsely names “Phoenix Townhouse Association” as the legal name of the subdivision (Exhibit 4). It was filed by the “managing agent”, an alleged “Mutual Management Services, Inc” entity, but is notarized without any signature! As an aside, Mutual Management is not a legal corporation, but “Management Mutual Services” is a trade name of Cimros, Inc., a corporation in good standing.

 

 

For these reasons, I feel that the decision in the special action be set aside and a bona fide case be brought before the court for adjudication.  As it stands, the declaration of unconstitutionality and the injunction against any further adjudication of HOA complaints by DFBLS/OAH should be vacated.

 

 

Respectfully,

 

 

 

George K. Staropoli

Intervenor motion denied in OAH fair trial constitutionality case

With a simple statement, the Court has permitted a default judgment, that the OAH adjudication statute is unconstitutional, to stand!   By a default decision, the national CAI/HOA lobbyists have struck down a statute without any argument by the real parties in interest, the homeowners, or by the Arizona Legislature, or by the Attorney General.  In spite of the Attorney General’s brief in favor of constitutionality that was submitted in the underlying Waugaman case. Who will defend the people?  As our President said during his campaign,  “You are on your own!” 

 

The HOA-landers of New America won a decisive battle, a battle where the State of Arizona failed to stand up and defend constitutional protections for “equal justice under the law.”  With no rationale supplied, the judge makes it difficult to argue for an appeal.

 

“MINUTE ENTRY [2/18]
The Court has received and considered the Motion to Intervene by George K. Staropoli.
IT IS ORDERED denying the Motion.”

 

In my motion, filed as a member of an Arizona HOA, I wrote, in part,

 

“Furthermore, the failure of any of the defendants to respond and defend the constitutionality of  the statute allows intervention under R 24(a), ‘unless the applicant’s interest is adequately represented by existing parties.’    ‘Because an intervenor of right may be seriously harmed if not permitted to intervene, the court should be reluctant to dismiss a request for intervention.’  Winner Enterprises, Ltd v. Superior Court, 765 P.2d 116 (1988).  The Winner court held that because the time frame was shortened by the special action [as this case] and that other parties would not be prejudiced, it allowed the intervention even though a judgment had been rendered.” 

 

 

The Motion and decision are available by clicking as indicated.

Intervenor files for justice in OAH constitutionality case

An application for intervention was filed today by George K. Staropoli in the Meritt case on OAH constitutionality, one day before the effective date of the judgment against the statute. An intervenor is a person of interest who seeks to protect his interest concerning a matter of law and fact in common, but is not a party.  The generality of the judgment put the Intervenor in a position where his interests will be damaged. 

 

The judge must now decide on my application, and if accepted, my Answer, my defense in full, becomes part of the case now open for trial.  The CAI/HOA plaintiffs have a right to reply within 5 days.  The decision on acceptance should come rather quickly.

Excerpts:

 

“Intervenor asserts his right to intervene under Ariz. R. Civ. P. 24(a)(2) since he is a homeowner living in an HOA in Maricopa County and his right to seek a fair and just adjudication of complaints against his HOA under the statute in question.” 

 

“Furthermore, the failure of any of the defendants to respond and defend the constitutionality of  the statute allows intervention under R 24(a), ‘unless the applicant’s interest is adequately represented by existing parties.’  Intervenor was quite disturbed by the failure of any of the named defendants or real defendants to respond to the Complaint, recognized by the Court in its order as, in reality, a default judgment.  Intervention after a judgment has been rendered does not automatically preclude intervention.”

 

“Intervenor denies the validity of the Waugaman order, in paragraph 13, as it relied heavily on Cactus Wren, which relied on the error in Hancock.  Although the Hancock four-fold test was used in the Waugaman analysis, Judge Downey erred in her analysis, as indicated in paragraphs 3 and 10 herein.”

 

Intervenor denies the allegations in paragraph 17 that the statute in question is unconstitutional.  The Attorney General filed a brief (“Attorney General’s Brief in Support of the Constitutionality of ARS §§ 41-2198 – 2198.05″, June 13, 2008) in Waugaman supporting the constitutionality of the statute in question, and Intervenor incorporates the reasoning contained in the brief into its argument both for the acceptance of jurisdiction and the ultimate resolution of the issues,  attached hereto as Exhibit A .  In its Answer in Terravita v. Brown (LC2007-000588) the Attorney General denied that the statute was unconstitutional.