FIFTH CLAIM FOR RELIEF §542.15, FLORIDA STATUTES, ct seq. AGAINST ALL DEFENDANTS
- Plaintiffs incorporate paragraphs 1 through 408 as though set forth fully herein.
- This conspiracy to perform the acts described in herein, to monopolize this market and to restrain the development and resale of the lot owners’ property violates the Florida Antitrust Act of 1980.
- These violations caused the Plaintiffs, and all similarly situated current and fonner, lot owners to suffer damages in the nature of diminished lot values and excessive carrying costs related to ownership and lack of marketability of their lots herein.
SIXTH CLAIM FOR RELIEF CONSUMER COLLECTION PRACTICES ACT, FLA. STAT. §§559.55-559.785 AGAINST RYAN, RYAN LAW GROUP, AEGIS, AND THE POA
- Plaintiffs incorporate by reference paragraphs 1 through as though 408 set forth at length.
- Defendant Bella Collina Club, LLC, at all relevant times, is a debt collector.
- The Bella Collina Club, LLC and its officers and directors violated the Consumer Collection Practices Act by knowingly sending false billing statements related to illegal special assessments, billing lot owners for sports club initiation fees and dues knowing that such bills were illegal and unenforceable, and engaging in abusive, deceptive and unfair practices to collect an alleged debt.
- These violations of law caused Plaintiffs to suffer the inability to sell their property at fair market value, the unnecessary payment of a special assessment for a non-existent sports club, a deposit for possible membership, and diminution in the value of their lots.
SEVENTH CLAIM FOR RELIEF BREACH OF FIDUCIARY DUTY AGAINST RYAN, RYAN LAW GROUP, AEGIS, BURMAN, GREEN, CLARKE, LEBREUX AND THE POA
- Plaintiffs incorporate by reference paragraphs I through 408 of this Complaint as though set forth at length herein.
- The members of the POA’s board of directors, its lawyers, its licensed community association manager and management company were, at all relevant times, acting as agents of the POA within the scope of their agency.
- The POA and its officers, directors, lawyers, licensed community association manager and management company have a fiduciary duty to lot owners and POA members as set forth in Florida Statutes, 720.303(1), the Non-Profit Corporations Act, the ethics and disciplinary codes of the Florida Bar Association, and the rules and regulations of the Florida DBPR governing community association managers, which duty includes the obligation to act in the members’ best interest, tell members the truth about all material matters, disclose any material fact, and obey all lawful obligations.
- HOA board members their lawyers, licensed community association manager and management company have a statutory duty to know and abide by properly adopted governing documents and the Homeowners Association Act.
- The POA and its officers and directors breached the duties described above by not determining if amendments were properly adopted or valid according to the governing documents or law, attempting to collect illegal special assessments, failing to turn over the community to lot owners 90 days after August 29, 2005 or pursuant to the June 24, 2016 Order, suing lot owners for alleged special assessments owed to a private, for-profit country club, demanding that prospective lot owners pay for sports club initiation fees and dues, restricting lot owner’s choice of builder and taking other actions described with particularity herein, all of which increased costs and lessened lot values, in all of which actions the POA board was complicit first with Ginn and later with DCS.
- The POA’s breaches of duty caused the Plaintiffs to suffer the unnecessary payment of a special assessment for a non-existent sports club, a deposit for possible membership, and diminution in the value of lots.
- Burman, Greene, Clarke and Lebreux knew or should have known:
- The original CC&Rs “shall run with the Committed Property” and shall “be binding on all parties” having any right to such property.
- The original CC&Rs defined membership and the turnover date as identified in the POA’s articles.
- The original CC&Rs explicitly state that the country club and the equestrian facility are not “Association Property” and “are not governed by the Association or this Declaration.” Article II, §§ 4 and 5.
- The original CC&Rs do not require membership by lot owners in the country club, but Article II §4 mentions that membership in the proposed Bella Collina Country Club will be made available to lot owners.
- The original CC&Rs do not mention a “sports club” or require the payment of any initiation fee or special assessment for a sports club or country club dues.
- Article VII §3 of the original CC&Rs limits Special Assessments to costs for the improvement of ”Association Property,” which precludes the country club or equestrian facility since they are, by the declarant’s own definition, !!.!!! Association Property, Article II, §§4 and 5 (emphasis added).
- Article VII §3, apparently subject to the requirement that special assessments relate to association property, requires a two-thirds (2/3) majority of a quorum of lot owners for a special assessment after turnover, but, in defiance of specific statutory law as discussed in this petition, permits the unilateral decision of a declarant dominated board before turnover.
- In reliance on this document and in reliance on the representations of Ginn that an equestrian facility with trails circling the community and a sports club with a state of the art building and ball fields to be built on dedicated land would also be made available, property owners purchased lots in the community at incredibly high prices, between slightly less than $300,000 and up to $2,000,000 for an estimated gross total of over 500 million dollars.
- Both the lot purchase agreements and the original CC&Rs expressly state that only the original CC&Rs run with the land.
- On May 15, 2004, without property owner approval, Ginn recorded an Amended and Restated Declaration of Covenants, Restrictions and Easements for Bella Collina, which document was not provided to Plaintiffs.
- The Amended and Restated Declarations contained changes that were not approved by existing lot owners, were in violation of statute, were unreasonable, were inequitable and were unenforceable.
- The Second Amended and Restated Declarations, (‘”Second Amended CC&Rs”) contained changes that were not approved by existing lot owners, were in violation of statute, were unreasonable, were inequitable and were unenforceable (recorded at the Lake County Clerk of Courts at Book Number 02810, Page 0722, and which is incorporated herein by reference).
- At all prior times, the original developer represented that the lot owners could opt out of club membership.
- Specifically, the illegality, invalidity and inequity of Subsection D concerning club charges that required the payment of a membership purchase price called a membership deposit and membership dues, fees and other amounts (the “club charges”), solely determined by the club under the membership plan, but when delinquent:
“…shall be deemed to constitute Special Assessments (emphasis added) of the Association, for which the Association shall have a lien against each lot for all unpaid Special Assessments in accordance with the lien and foreclosure provisions set forth in Article VI. If the Club provides notice to the Association that an owner owes Delinquent Club Charges, the Association shall have the right and obligation to collect Delinquent Club Charges from Owners and to enforce its lien for Special Assessments, through and including foreclosure of the lien. In the event that the Association does not enforce its rights hereunder with respect to a Special Assessment resulting from delinquent Club Charges, the Association hereby consents and authorizes the Club to enforce the lien and foreclosure provisions of ArticleVI. All Delinquent Club Charges collected by the Association from Owners are the property of the Club and shall be immediately paid to the Club.”
- That Subsection D illegally and inequitably changed the definition of special assessment in the original CC&Rs from an improvement to community property to a debt owed to a third party for forced inclusion in a private club located outside of community property (see subsection E, the Club is “‘not part of the Club Property” but is “mandatory”); it illegally changed the economic circumstances of the lots, their marketability, and their affordability by a dramatic, unknowable and uncontrollable amount (in this case a $40,000 initiation fee and a monthly charge of$579.58, $205.08 and, most recently, $428); it turned the non-profit association into a debt collector (see §f(S) for a for profit foreign corporation, even giving it the ability to defeat homestead protection or the ability to foreclose; it, at §F(3), required the Association to indemnify the Club for liability, making the Association the club’s insurer; and it declared a special assessment prior to turnover without the consent of a majority of a quorum o f lot owners at a properly noticed meeting as required by law.
- Illegal enforcement of subsection D prevented lot owners from selling lots fair market value, destroying the development of the community.
- Subsection D, as enforced by the Association, was the weapon used by DCS to coerce beleaguered lot owners into surrendering lots that cost hundreds of thousands, and sometimes millions, of dollars.
- DCS uses the POA to illegally sue for the special assessment described in Subsection D, with 18% interest (the maximum interest allowed for delinquent homeowner association dues) and exorbitant attorney fees Gustified by application of the attorney fees provisions of the Homeowner’s Association Act and the Governing Documents) and offers to release the alleged debt if the lot owners relinquishes ownership to this private company.
- All Governing Documents declare that the Club is a wholly separate entity from the POA, which separate entity adamantly refuses to disclose its income and expenses to lot owners, or to justify the obviously arbitrary amounts that the Club charges for initiation fees or monthly dues in defiance of law.
- Article II, Section 3, Paragraph D of the illegal and unreasonable Second Amended Declarations also provides, in pertinent part, that “Club charges owed by Owners to the Club which become delinquent. .. are deemed to constitute Special Assessments of the Association, for which the Association shall have a lien against each Lot for unpaid Special assessments” destroyed member lot value and the development of the community.
- Article VII, Section 3 of the Second Amended Declarations which provides, in pertinent part, that “(p]rior to the Turnover Date, a Declarant controlled Board may make a Special Assessment without [a majority vote] of the Owners was illegal, unreasonable and unenforceable.
- Fl. Stat. 720.315 clearly provides, in pertinent part, that “(b]efore turnover, the board of directors controlled by the developer may not levy a special assessment unless a majority of the parcel owners other than the developer has approved the special assessment by a majority vote at a duly called special meeting of the membership at which a quorum is present.”
- The illegal and inequitable nature of the payment of a $500 application fee, all membership fees and current and past dues of lot owners at the time of any resale of any lot, which demand destroyed the resale value of all lots and clouded the title of all lots to the detriment of lot owners and the benefit of DCS.
- Neither DCS or the POA, sought or obtained majority approval of the Bella Collina owners for any Club special assessments.
- Club special assessments, or liens arising out of them, are unenforceable as they were not approved by Bella Collina owners.
- The Club has failed or refused to account for expenses and income, or to demonstrate that dues are related to a members proportionate ownership in the POA or whether DCS has paid dues for its many lots.
- Kurt Showalter filed to audit the POA as required by law and the POA failed to obtain a comprehensive audit prior to the alleged turnover as required by law.
- the changes to the Original CC&Rs and zoning changes to permit smaller lot sizes, lots in place of promised amenities such as ball fields, sports centers and equine centers and the construction of a motel are unenforceable as they were not consented to by Bella Collina owners, and are illegal and unreasonable.
- Fl. Stat. 720.3075(1) provides, in pertinent part, that:
- It is declared that the public policy of this state prohibits the inclusion or enforcement of certain types of clauses in homeowners’ association documents … which either have the effect or provide that:
- A developer has the unilateral ability and right to make changes to the homeowners’ association documents after the transition of homeowners; association control in a community from the developer to the non-developer members … has occurred.
- A homeowners’ association is prohibited or restricted from filing a lawsuit against the developer, or the homeowners’ association is otherwise effectively prohibited or restricted from bringing a lawsuit against the developer.
EIGHTH CLAIM FOR RELIE COUNT XI-FRAUD-MA TERIAL MISREPRESENT A TION AGAINST POA, THE RYANS, THE RYAN LAW GROUP, BURMAN, DCS, THE GOLF CLUB
- Plaintiffs incorporate by reference paragraphs 1 through 408 as though set forth at length herein.
- The POA and its officers and directors have a fiduciary duty to lot owners and POA members as set forth in Florida Statutes, 720.303( I), which duty includes the obligation to act in the lot owners’ and members’ best interest, to tell them the truth about all material matters, to disclose any material fact, and to obey all lawful obligations.
- Ginn owed Plaintiffs a duty to make true representations of material fact and to disclose material facts only known by its agents, employees and officers.
- DCS contractually assumed liability for Ginn’s liabilities and assumed a duty of truthfulness and disclosure when it purchased Ginn’s rights to Bella Collina.
- The POA, DCS and Ginn and its officers and directors breached those duties by sending knowingly false billing statements related to illegal special assessments, knowing when promised in various forms as herein described that they would not tum over the community to lot owners 90 days after August 29, 2005, billing lot owners for sports club initiation fees and dues knowing that such bills were illegal and unenforceable, filing knowingly false and unenforceable amendments to articles of incorporation and to CC&Rs, by falsely stating that they did not have the duty to tum over the community, or that they had the authority to unilaterally amend governing documents or to control the POA without notice to lot owners or elections, restricting lot owner’s choice of builder and taking other actions described with particularity herein which increased costs and lessened lot values knowing that such actions conflicted with material representations made in promotional materials, the CC&Rs and failing to disclose additional material facts as described with particularity herein such as actual costs to run the golf club or community.
- The POA’s breaches of duty caused Plaintiffs to suffer the unnecessary payment of a special assessment for a non-existent sports club, a deposit for possible membership, and diminution in the value of their lots.