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November 06, 2003
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Case No: CIV 01-0380 BB/ACT ACE - STANTON v NORTH HILLS POA
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New Mexico
Federal Court
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ELVIRA MAY STANTON et al
Represented by: Pro per
v.
NORTH HILLS PROPERTY OWNERS'
ASSCOIATION
et al.
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Summary
AMREP designed the governing documents of NHPOA so that it would be a cash register for these vendor members.
This provision in the covenants is very lucrative for the lawyer for the North Hills Property Owners‚ Associations, Rodney Starkweather, Mr. Johnson and at least one board member, in at least two ways. First, when foreclosures go through, Starkweather not only makes his fees, but he also purchases the homes for a pittance. He then places his friends in the position of "Inside Trader".
In one recent New Mexico case, a lady is being foreclosed on not for owing money but for attempting to be elected to the Board of Directors. Second, JOHNSON and STARKWEATHER make a lot of money by sending dunning letters to homeowners threatening foreclosure and placing liens that do not meet the requirements of State and Federal Fair Debt Collection Statutes.
Another instance of conflict of interest is the head of the New Mexico Senate Insurance Committee. New Mexico mandates that homeowner associations carry liability and Director and Officer insurance. This insurance is often used to attack the payers of the insurance premiums - the homeowners. The New Mexico Public Regulation Commission has consistently refused to investigate. A review of "campaign contributors" includes many insurance companies and association managers.
The reserve funds of homeowner associations‚ are to be used solely for repairs and capital replacements. Starkweather is illegally being paid out of these reserve funds to represent the malicious, fraudulent, and retaliatory acts of the self-appointed board of directors/officers. Mr. Starkweather is draining funds from the HOA under the pretence of being the Attorney for the Association when it suits him. In actuality, the very citizens he is wreaking havoc on and who are footing the bill are paying him.
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Causes of Action: AMREP designed the governing documents of NHPOA so that it would be a cash register for these vendor members. NHPOA has foreclosed against many of the properties to collect unpaid assessments, while other former owners have permitted the mortgage companies to seize and sell their properties because the value had been so diminished by failure of the development plans and the burden of the assessments imposed by the indentures.
This provision in the covenants is very lucrative for the lawyer for the North Hills Property Owners‚ Associations, Rodney Starkweather, Mr. Johnson and at least one board member, in at least two ways. First, when foreclosures go through, Starkweather not only makes his fees, but he also purchases the homes for a pittance. He then places his friends in the position of "Inside Trader".
In one recent New Mexico case, a lady is being foreclosed on not for owing money but for attempting to be elected to the Board of Directors. Second, JOHNSON and STARKWEATHER make a lot of money by sending dunning letters to homeowners threatening foreclosure and placing liens that do not meet the requirements of State and Federal Fair Debt Collection Statutes.
Another instance of conflict of interest is the head of the New Mexico Senate Insurance Committee. New Mexico mandates that homeowner associations carry liability and Director and Officer insurance. This insurance is often used to attack the payers of the insurance premiums - the homeowners. Homeowners have asked the New Mexico Public Regulation Commission repeatedly to provide protections for homeowners in this State-mandated insurance. The Commission has consistently refused to do so, as well as, help with the fraudulent policies of State Farm Insurance Company. A review of "campaign contributors" includes many insurance companies and association managers.
Since 1985 to the present, AMREP, GARY JOHNSON, NORTH HILLS PROPERTY OWNERS' ASSOCIATION, its lawyers, and other vendors have consistently made "campaign contributions" to politicians in the New Mexico legislature to obtain favorable amendments to enhance their land development positions.
The reserve funds of homeowner associations‚ are to be used solely for repairs and capital replacements. Starkweather is illegally being paid out of these reserve funds to represent the malicious, fraudulent, and retaliatory acts of the self-appointed board of directors/officers. Mr. Starkweather is draining funds from the HOA under the pretence of being the Attorney for the Association when it suits him. In actuality, the very citizens he is wreaking havoc on and who are footing the bill are paying him. This is just one example of an "amnesty law" to cover up the illegal taking of homeowner monies by lawyers.
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Lawsuit Text
THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ELVIRA MAY STANTON, et al.
Plaintiffs
Vs No. CIV 01-0380 BB/ACT ACE
NORTH HILLS PROPERTY OWNERS'
ASSCOIATION, INC., et al. CONSOLIDATED WITH
Defendants No. CIV 01-0471 BB/ ACT ACE
MOTION FOR SUMMARY JUDGMENT
PLAINTIFFS AFFIDAVIT AND MEMORANDUM
AS TO GARY JOHNSON
Plaintiff refers to all Defendants in this MEMORANDUM and all Defendants actions, Motions and Responses are in fact, in tandem or identical.
HISTORICAL FACTS
The law has regulated homeowner associations nationwide. The estimate of people living in homeowner associations is about 50 million. For convenience sake, the information here begins in 1961.
On December 5, 1961, restrictive covenants and building restrictions were recorded to run with the land and imposed upon property in all of Rio Rancho Estates. The original Rio Rancho Estates, which is now the entire City of Rio Rancho, was formerly the private land claim known as the Alameda Grant. This land was sold to AMREP Southwest Inc as incorporated the State of New Mexico, a subsidiary of AMREP, Inc. as incorporated in the State of Oklahoma and with its Corporate Headquarters in New York. In the early 1970s, AMREP, Inc. established 30 sales offices in the US. In 1977, four of its officers, including its President, were convicted of land fraud charges for what a Federal prosecutor called "massive robbery of the public". (Suits arising from the wrongdoing dragged on until 1993.) Following the 1977 trial, AMREP focused on building entry-level housing. It offered low-interest loans to homebuyers.
AMREP retained some of its lands, which were grand-fathered as platted and were to be used for purposes such as school sites, parks and green belts. Formally called Hidden Hills the development was renamed North Hills. In 1989 the North Hills Property Owners' Association was created with recorded indentures. The indentures require, inter alia, the purchasers of lots to pay assessments to the association and require the association to use these funds for the benefit of the properties collectively, such as maintenance, improvements and repairs. AMREP marketed the properties as risk free and suitable for all. AMREP never intended to pursue full development of the properties and ignored the Americans with Disabilities federal mandate. From the onset of the mandate to date the landowners have paid as much as $ 6,078,700.00 in assessments, much of which is unaccounted for. One piece of land in the middle of the Development is private property not covered by this covenants.
In 1988 AMREP created the City of Rio Rancho and hired Art Corsie as the Director of Planning and Zoning. Art Corsie held that position.from the onset until 2003. The City of Rio Rancho, by its Planning and Zoning and in concert with AMREP ignore the Americans with Disabilities Act, as well as allow the developer to build on property grand-fathered and designated as a park/community center. See; Yates Exploration, Inc. v. Valley Improvement Association, 108 N.M. 405, 773 P.2d 350 (N.M. 1989).
In 1998, after receiving an unfavorable tax ruling, AMREP abandoned plans to spin-off its real estate operations in California, Oregon and Nevada halted, except its 22,000 acres at Rio Rancho halted.
According to GARY R. JOHNSON, he is the sole owner of Double R Property Management and Double R Realty. Both were previous subsidiaries incorporated in the State of New Mexico as subsidiaries or holdings of AMREP. The preponderance of evidence shows AMREP, Inc. was and is the owner of Double R Realty (Securities and Exchange Commission for the Fiscal Year Ending April 30, 2001, Commission AMREP File Number 1-4702, Exhibit 21: Subsidiaries of Registrant, Double R Realty, Inc. and AMREP Southwest, Inc. among other New Mexico company's). Gary Johnson (GBI, LTD), managed and held the liquor license for the AMREP held Rio Rancho Country Club and Gulf Course. He is the personal friend of James Wall, the Vice Pres. of AMREP SOUTHWEST, a subsidiary of AMREP, located in New York.
This is of the utmost significance, because it involves a clear conflict of interest, in the same way that AMREP has employed energy consultants and agents who both own stock in and receive income from the AMREP companies with which they are negotiating on behalf of the State and of the City.
AMREP designed the governing documents of NHPOA so that it would be a cash register for these vendor members. For example, it authorized foreclosure on homes for even the minutest nonpayment of association assessment fees and unlimited lawyers fees. Further, more than one family has had to file a counter-lawsuit to stop the foreclosure of their home for a false late fees and compounding interest. The landowners allege that the assessments are unfairly made, varying greatly from lot to lot on some unknown, arbitrary basis having no relationship to the relative value of the lots. NHPOA has foreclosed against many of the properties to collect unpaid assessments, while other former owners have permitted the mortgage companies to seize and sell their properties because the value had been so diminished by failure of the development plans and the burden of the assessments imposed by the indentures.
This provision in the covenants is very lucrative for the lawyer for the North Hills Property Owners‚ Associations, Rodney Starkweather, Mr. Johnson and at least one board member, in at least two ways. First, when foreclosures go through, Starkweather not only makes his fees, but he also purchases the homes for a pittance. He then places his friends in the position of "Inside Trader". Actually, in all except three cases in ten years, the HOA never sees the money owed directly to the HOA. In the cases of bank foreclosures, the HOA is last and loses on the average of $2,000 to $3,500. The HOA‚s attorney knows he will be paid by the Association, the bank, as special master and by the buyer. In YATES listed above the federal judge held that the plaintiffs allegations regarding the imposition of liens on their properties and the foreclosure proceedings which had been brought by Valley Improvement Association stated a claim for personal injury liability because the allegedly wrongful enforcement of liens and wrongful foreclosures could constitute an "invasion of the right of private occupancy."
In one recent New Mexico case, a lady is being foreclosed on not for owing money but for attempting to be elected to the Board of Directors. Second, JOHNSON and STARKWEATHER make a lot of money by sending dunning letters to homeowners threatening foreclosure and placing liens that do not meet the requirements of State and Federal Fair Debt Collection Statutes. Now, they don‚t even bother to send letters. They don‚t even bother to send annual assessments to the owners as required. Many homeowners, often too afraid and unable to financially afford an expensive lawsuit, simply make arrangements to pay the amount demanded or just abandon their homes/their life savings, because these fees often run into the thousands. This is a consumer issue. This is extortion. AMREP wrote the covenants that make this possible.
Another instance of conflict of interest is the head of the New Mexico Senate Insurance Committee. New Mexico mandates that homeowner associations carry liability and Director and Officer insurance. This insurance is often used to attack the payers of the insurance premiums - the homeowners. Homeowners have asked the New Mexico Public Regulation Commission repeatedly to provide protections for homeowners in this State-mandated insurance. The Commission has consistently refused to do so, as well as, help with the fraudulent policies of State Farm Insurance Company. A review of "campaign contributors" includes many insurance companies and association managers.
Since 1985 to the present, AMREP, GARY JOHNSON, NORTH HILLS PROPERTY OWNERS' ASSOCIATION, its lawyers, and other vendors have consistently made "campaign contributions" to politicians in the New Mexico legislature to obtain favorable amendments to enhance their land development positions.
The reserve funds of homeowner associations‚ are to be used solely for repairs and capital replacements. Starkweather is illegally being paid out of these reserve funds to represent the malicious, fraudulent, and retaliatory acts of the self-appointed board of directors/officers. Mr. Starkweather is draining funds from the HOA under the pretence of being the Attorney for the Association when it suits him. In actuality, the very citizens he is wreaking havoc on and who are footing the bill are paying him. This is just one example of an "amnesty law" to cover up the illegal taking of homeowner monies by lawyers.
Homeowners from across the State have repeatedly run into a brick wall when they approach members of the legislature or Judges. The Federal Court is our only recourse for Justice and due course of our constitutional rights.
Homeowners have approached Patricia Madrid, the Attorney General for the State of New Mexico , to take action on these matters, but she has flatly refused to do anything. When she was in the legislature, she was a friend of AMREP. Her office has refused to investigate any of the fraud, misappropriations, and conflicts of interest complaints against the self-appointed association officers and directors, or the City Officials, even though these are clearly consumer issues and political subdivision political issues. The landowners prayed for various forms of relief including dissolution of NHPOA, an accounting of the collected assessments received by NHPOA, invalidation of the indentures, restitution of the collected assessments, and a catch-all request for other forms of legal and equitable relief for the wrongful acts and conduct of NHPOA to the detriment and damage of the plaintiffs. These allegations are important in the consideration of insurance coverage issues in the instant case.
This matter is of no small moment to the New Mexicans who live in homeowner associations. Its ripple effect on the 50 million nationwide who live in homeowner associations is not small either. The damage and cost to homeowners throughout the U.S. has been devastating, and will only increase unless prompt and decisive action is taken.
PLAINTIFF'S STIPULATE TO THE FACTS UP TO: "Due to some confusion as a result of electronic filing. The Pretrial Order was not signed by the Court and filed until May 23, 2002. Response: To penalize Plaintiffs for the error of the Court is unjustifiably prejudicial. To penalize the Plaintiffs because Judge Svet did not obtain the promised pro bono attorney and then to discriminate against pro se litigants who obtained an attorney in good faith, who then were betrayed, would be an outrages use of the judicial system to deny the right to litigate a justifiable case.
Plaintiff's request for an extension gave a specific range of time committed to file our share of Pre Trial Motion. Plaintiffs kept our commitment. If the Court erred in its response to the motion or the time line did not permit a more timely response, the Plaintiff should not be held responsible for trying to mitigate the damage done by Attorney Andrew D. Mills. It is the responsibility of the legal profession and the Court to impose sanctions on the wrong doer, not the innocent citizens/homeowners. Mr. Mills has failed to enter a Pretrial Order on behalf of the Plaintiffs who were still his clients. Andrew D. Mills lost his license to practice because his brethren and the courts held his clients responsible for his failures. He still has the evidence boxes of KISNER and TERESKIEWICZ.
LEGAL ARGUMENT
1. PENDING MOTION
Again, Plaintiff did as promised. This Honorable Court could have, but did not, act on the any Motions, sua sponte. The Motions to Compel, re: N.M. Bill of Rights, Art. 18; "Where a party has been warned that failure to comply with the Court's Discovery Orders may result in the imposition of sanctions under Rule 1-037B, N.M.R. Civ. P., and where the Court, pursuant to Rule 1-043C, N.M.R. Civ.P., has determined that an evidentiary hearing under the circumstances is not necessary before ruling on a motion to impose sanctions does not amount to a denial of due process". See; United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P2d (1980). Plaintiffs are cognitive to the legal communities disdain toward pro se litigants, however, justice demands unbiased treatment.
The purpose of continuing investigation is to prepare for trial with all the facts at Plaintiffs disposal. The Defendants refusal to obey the discovery Rule has unduly burdened the Plaintiff's time and expense. The Court has not acted on this Plaintiff's Motions to Compel, leaving the Plaintiffs to exhaust resources. There are no new matters developed; only reinforced. The conclusions of law reiterated through out this case and in the Plaintiff's Pre Trial Order are in fact on the Cover Page of the Complaint filed April 4, 2001. This established the basis for this cause of action. The Defendants have had a proxy and witness's list of possibly 195 people, now largely moot because prople have moved or been intimidated. Plaintiffs have the same rights as attorneys to protect their witnesses by withholding addresses. Defendants have subjected potential witnesses to harassment and threats or special treatment for services directly from Gary Johnson‚s office by virtue of obtaining Plaintiffs witness list through discovery. If the attorney's for the defense cannot control their clients, Plaintiff has the right to withhold addresses of witnesses. The license to be an attorney does not privilege the attorney the right to withhold witnesses addresses and block access to those witnesses, then deny the same right this Plaintiff simply because they are pro se, nor to the other defendants who are supposed to be represented by an attorney. On October 24, 2001, Attorney Olona did in fact try to intimidate 14, plus two expert persons by demanding depositions, which were never intended to be acted upon. To expect more from Plaintiffs would be blatantly prejudicial.
CONCLUSION
Clearly Plaintiffs have been unable to communicate with the opposing attorney's or this could have been properly discussed and the Court spared the time and expenses required to act on yet another Motion.
Denying SIXTH AND FOURTEENTH AMENDMENT RIGHTS, disrupt the process and cause the Plaintiff's harassment, suffering and expense.
WHEREFORE, Plaintiffs pray this Honorable Court will stop this use of the Courts to avoid Discovery, and to right past errors.
FURTHER, for these reasons, as well as the substantive and Legal arguments presented above, Plaintiffs prays this Honorable Court to grant SUMMARY JUDGEMENT, costs, fees, and such other relief as the Court deems just and proper, in this matter.
Respectfully Submitted,
_____________________
Elvira May Stanton
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