6 class action lawsuit against Bella Collina (Part 6 of 15)

With less than two months left for the election, the Plaintiffs discovered that the conspirators, in a desperate attempt to maintain a strangle hold on the POA
Randall Greene was Accused of Stealing Bella Collina House

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  1. With less than two months left for the election, the Plaintiffs discovered that the conspirators, in a desperate attempt to maintain a strangle hold on the POA, agreed that the alleged special assessment delinquency would be used as grounds to disqualify the Plaintiffs, and all similarly situated lot owners, from voting in the Turnover election or from becoming candidates for the board; the developer controlled POA would allow builders, contractors and developer agents to cast votes, and there would be five director seats instead of the three required by the Articles of Incorporation.
  2. The Plaintiffs filed motions to preclude these illegal actions, which the POA board, consisting of Greene, Burman, Clarke and Lebreux, on the instruction of the Conspirators, opposed.
  3. This opposition was in bad faith, detrimental to the POA and in furtherance of the Conspiracy’s goal of unfettered control of the POA.
  4. The motion asserted that the mandatory membership and special assessment Amendments are unreasonable and violate the Governing Documents and §§720.3075, 720.303(2), 720.315, 720.306, Florida Statutes.
  5. On August 1, 2016, the POA filed a response in opposition to the emergency motion, which confirms the intent to use the illegal club mandate to disquality non-developer lot owners.
  6. Schar, Simonson, Ryan, Burman, Clarke, Greene and Lebreux knew that these motions sought relief required by law and that were in the best interests of the POA.
  7. However, Schar, Simonson, Ryan, Burman, Aegis, Clarke, Greene and Lebreux supported the developer at the expense of the POA and qualified builders and contractors under the developer’s control to vote in violation o f §720.307, Florida Statutes and the Governing documents.
  8. They conspired to appoint a POA controlled board, just as Ginn-LA and DCS had done illegally for the prior eleven years.
  9. Burman, Aegis, Clarke, Green and Lebreux cooperated with the POA’s obviously conflicted attorney, Ryan, who represents DCS, the Golf Club, the COD and the Developer appointed Board, to corrupt the election process, defeating the purposes of the Court Order and the best interests of the POA.
  10. The DCS controlled board disqualified all lot owners allegedly delinquent in payment of club dues from voting in the election or running as a candidate for the Board.
  11. The DCS controlled board accepted the vote of builders, contractors and DCS agents in defiance o f §720.307, Florida Statutes and the June 24, 2016 Court Order.
  12. The DCS controlled board, to the continuing harm of the POA and to solely benefit the Conspirators, filed a motion to delay the Turnover election at least another eight months, with Burman testifying in support of DCS and to the detriment of the POA that an election could not possibly be held in the remaining 21 days.
  13. Judge Singletary denied the POA’s motion on September 2, 2016.
  14. On or about September 6, 2016, in a desperate and hasty attempt to appear to comply with this Court’s Order, the POA’s attorney filed a First Notice of Turnover Election, and subsequently mailed these notices to lot owners, informing them that candidates for an undisclosed number of board seats must submit applications by the arbitrary date of September 13, 2016 for an election that would occur on September 22, 2016.
  15. In bad faith and with the intent to subvert the Court Order as predicted in the Emergency Motions, the POA attached to the Notices sent to James and Virginia Shelton, Plaintiffs, Kathryn and Bart Sutherin, the Carlson Trust, Brad Heckenberg and virtually every lot owner not under the control of the Conspirators a “Notice of Voting Rights Suspension,” prohibiting them from voting or becoming candidates for election because they owed assessments (in each of these cases the lot owner had paid all annual assessments but refused to pay the illegal special assessment related to club membership).
  16. James D. Ryan, in open court on September 1, 2016, asserted that there were 166 eligible voters and those with unpaid assessments would be disqualified from voting.
  17. Under pressure from lot owners, David Burman and Aegis finally posted the alleged list of eligible voters on the POA website.
  18. The list only included 152 lot owners, including several lot owners who received notices they were not eligible to vote or stand for election to the board.
  19. The eligible list included the Carlson Trust, CS Business Services (5 lots), Alfred Little (3 lots), James and Virginia Shelton, and Bart and Kathryn Sutherin, who were told by Ken Burman, director and principle of the CAM, Aegis, that their inclusion was a mistake.(See affidavits).
  20. The list of eligible voters included preferred builders Ryan Arrighi, brother of Phoenix Builders Richard Arrighi, Paul Lebreux and PSR Developers (6 lots), Legacy Construction, Inc. (5 lots), Richard and Vanessa Scharich (Richard Scharich is the managing member of Vogel Homes a preferred builder and has contractor licenses) and Sharich Invenstments (19 lots), managing member of Vogel Homes, Vogel Building Group (3 lots), Simonson Holdings (1 Lot) (See Affidavits, Exhibit B OF State Court Second Emergency Motion), all of which were under the control o f the Conspirators.
  21. However the list of Delinquent lot owners included Paul Lebreux ($36.12), Keith Clarke ($1,567.55), Paul Simonson ($1,567.55), Richard Arrighi ($10,956.48), Phoenix Capital (Arrighi and Clarke’s Company) $32,944.59.
  22. On or about September 13, the POA’s attorney, to further the Conspiracy to maintain control of the POA by DCS, Schar and Simonson, filed a “Notice of Compliance,” averring that only two lot owners applied during the corrupt election process, Paul Lebreux and Keith Clarke, and that an election would not be held.
  23. Lebreux and Clarke qualified, even though they were delinquent in the payment of POA dues, a disqualifying factor for lot owners not controlled by the Conspirators.
  24. The Conspirators knew that Florida Statutes §720.307 prohibits voting by the developer, builders and contractors who buy lots for development or resale, but maliciously violated the law to further the Conspiracy.
  25. Rocking Red H LLC, whose managing member is an attorney at the Ryan Law Group, Cullen D’Ambrosio, owes $367,461 in delinquent taxes on its 13 lots, yet an attorney for this firm continues to represent the POA.
  26. The POA showed contempt for the June 24, 2016 Order, and is unable and unwilling to perform the critical and legally mandated election requirements such as a complete the required turnover audit.
  27. The Conspiracy subverts the important public policy of creating self-governing private communities.
  28. The Conspirator controlled board continues to disqualify all lot owners with alleged delinquent special assessments for club dues related to the mandatory membership amendments from voting and candidacy for a board seat.
  29. Only the two board members previously appointed by the Conspirators without authorization are allowed to run for the two board seats.
  30. The Conspirator controlled POA asserts that, under these circumstances, the Conspirator controlled candidates are deemed elected.
  31. The Conspirators cancelled the court ordered, statutorily required vote, holding only an informational meeting on September 22, 2016.
  32. The Conspirators, with the unqualified cooperation of Burman, Clarke and Lebreux, thus maintained control of the POA, flagrantly defying the June 24, 2016 Order and making a mockery of the letter and spirit of the law.
  33. This situation prompts a series of other motions, including a “Second Emergency Motion for Declaratory Relief and Injunction,” a “Motion to Disqualify Attorney” and two extensive supplemental filings of Legal Authority in support of the Emergency Motions, which the Conspirators instruct Ryan to oppose.
  34. Thus Burman, Greene, Clarke and Lebreux, acting as the POA Board but at the direction of the Conspirators, prohibit the lot owners from voting in defiance of §720.307, Florida Statutes, other statutory law, the Governing Documents and the June 24, 2016 Order, all in furtherance of the above- described illegal Conspiracy.
  35. The failure of Burman, Greene, Clarke and Lebreux to conduct an election at the September 22, 2016 meeting, at which the de facto appointments of two builders previously appointed by DCS are ratified, condemns the POA to the unfettered control of the Conspirators, who permit the meeting even though it lacks a required quorum by attendance of thirty percent of the lot owners entitled to vote, as required by Law and the Governing documents.
  36. Burman, Greene, Clarke and Lebreux violate the governing documents by ignoring the quorum requirement by the acquisition of proxies, which are prohibited by the governing documents at meetings to elect directors.
  37. Burman, Green, Clarke and Lebreux subject the POA to an election dispute by the lot owners before the Florida DBPR.
  38. Burman, Greene, Clarke and Lebreux perform the all above-described actions m furtherance of the Conspiracy and at the direction o f Schar, Simonson and Ryan. CLASS ACTION ALLEGATIONS
  39. Plaintiffs bring this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure and Local Rule 4.04, on behalf of themselves and a classes consisting of all persons who are:
  40. current non-developer owners of a lot within Bella Collina.
  41. former non-developer owners of lots in Bella Collina from June 2012 to the present.
  42. The definition of the Class as set forth above is subject to amendment upon completion of discovery, and may ultimately include other classes.
  43. The members of the Class are sutliciently numerous, consisting of approximately one hundred one (101) curent owners of 164 lots within Bella Collina, as indicated on the list which is attached hereto and incorporated herein as Exhibit C, and approximately 586 former owners so as to make joinder impracticable.
  44. Plaintiffs’ claims involve questions of law and fact common to the Classes, because Plaintiffs and other members of the Class were made subject to affirmative obligations set forth in the Amended Covenants with neither their agreement or consent and were all members of the POA which was illegally controlled by the Conspirators.
  45. Plaintiffs and the Class are entitled to declaratory and injunctive relief necessary to provide control of the POA to the non-developer lot owners and nullification of the Amended Covenants and are further entitled to an award of their reasonable attorney fees and costs.
  46. Common questions of law and fact exist as to all members of the Class and predominate over any questions affecting solely individual members o f the Class.
  47. Plaintiffs’ claims are typical of the claims of the members of the Classes.
  48. Plaintiffs will fairly and adequately protect the interests o f the Classes.
  49. Plaintiffs have retained counsel with a depth of knowledge and understanding of the facts and law related to the present case, with competence and experience in class litigation.
  50. Plaintiffs will vigorously pursue the claims of the Classes.
  51. The Class as defined herein is maintainable pursuant to Rule 23 of the Federal Rules of Civil Procedure in that prosecution of separate claims by individual members of the Class would create a risk of either:
  52. inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards for the Defendants, i.e., the parties opposing the Class; or
  53. adjudications with respect to individual members of the Class as a practical matter which would be dispositive of the interests of other members of the class who are not parties to the adjudications, or would substantially impair or impeded the ability of other members of the class- who are not parties to the adjudications -to protect their interests.
  54. The Class as defined herein is certifiable pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Defendants have taken actions generally applicable to the Class in that they have acted in a nearly uniform matter with respect to all members of the Class, thereby making final injunctive relief or declaratory relief concerning the Class as a whole appropriate.
  55. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because joinder of all members is impracticable.
  56. The Class members, to the extent they are aware of their rights against Defendants as alleged herein, would be unable to secure counsel to litigate their claims on an individual basis and thus a class action is the only feasible means of obtaining a remedy for the Class members.
  57. Individual actions would also present a risk of inconsistent decisions, even though the conduct of Defendants (in their execution of the Joinder and Consent) has been uniform with respect to each Class member.
  58. Plaintiffs envision no difficulty in the management of this action as a class action. The identification of all class members and their contact information is readily determinable from statutorily required POA records.

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