What does POACRE and The SOPRANO's have in common?
- Thread starter exnodak
- Start date
One open query and a couple of PM's. Doesn't seem to be much interest, but here it is anyway. I know this is long, but believe me its the short version.
After trading numerous briefs and countering motions for Summary Judgment, we are still waiting for an assignment of a judge.
Once a Judge is assigned, it really won't take much of a trial/hearing. The case will either be dismissed on procedural issues or it will be decided against POACRE and the County. It is unlikely to be dismissed since temporary Judges have ruled at least twice against the County and POACRE on identical motions to dismiss.
It will be decided against POACRE and the County for numerous reasons resulting in vacating the Special Tax District and the Covenants.
Arguments against the Special Tax District are basically constitutional and lengthy, and I don't expect the Court to even look at them. The Court will take the shortest route possible to issue relief.
The Tax District will be vacated because POACRE's Bylaws contain a poll tax which is in violation of Article 15 of the Maryland Declaration of Rights, the 5th, 14th, and 24th Amendments of the U.S. Constitution and so much more. The Bylaws are a poll tax because the law creating the Special Taxing District incorporates the bylaws by reference and by policy. Those bylaws require that all fees must be paid prior to any property owner being allowed to vote on issues regarding the STD and representation on the Board as the primary petitioners for the STD. It's a poll tax. This requires no argument or discovery and will be decided on stipulated facts and law.
The covenants are a forgery.
The proof is absolute and obvious simply by reading the closing documents signed by the Receiver for CRC, Inc. and POACRE. Those documents make assignments burdening POACRE with the "right" (duty) to collect certain fees and in part turn them over to the Reciever by the authority of a certain set of covenants that name the Developer as the rightful grantee (Declarant). There is no mention of transferring any covenant authority or perpetual assignment of covenant authority. There is a good reason they weren't assigned.
If the Receiver were to have assigned POACRE the power of "Declarant it would have negated any power of the Receivers to enforce the road and member dues fees collection process dictated in the agreements which split the pot between the POACRE Board and the Recievers. POACRE was never assigned "Declarant".
In Maryland, an assignment as "Declarant of Protective Covenants" must be made in writing. No such document was ever handed to POACRE, and the closing documents prove this.
Six weeks after those closing documents were signed, POACRE went about "amending" the original covenants referenced in the sales contract by removing the name of the Developer and installing POACRE in its place, breaching the agreement. Without written consent of the Reciever, this was an act of fraud making the covenants we now have a forgery.
Where the agreement of sale points to their authority in one set of covenants that named CRC, Inc. as the "Declarant" and where the agreement split the road fee and dues money between POACRE and CRC, Inc's creditors; and then POACRE amends the covenant and records it as an entirely new covenant naming POACRE as the "Declarant" and which changes the titles of the fees is not a hard thing to show the Judge. POACRE placed the sales agreement into evidence without knowing it containted the evidence required to prove the case against them.
It doesn't matter if the POACRE Board did it or if the members voted on it. Either way, POACRE as a corporation acting as a committee of grantors couldn't unilaterally remove the grantee of a contract and replace him by vote of acclamation with a different corporate grantee by amendment.
Just in case someone is scratching their head:
The closing documents signed by both POACRE and the Receivers give POACRE certain rights under the authority of the old covenants. They didn't have the authority to amend them to their benefit. The ballot was a sham to make the property owners think they were "taking control" of the covenants.
POACRE basically stole the corporate identity and contract rights of the Developer Corporation after it was dead. By law, if any of those rights remained intact they must be used for the benefit of the Developers creditors.
POACRE knew they were on fairly safe ground with respect to the receivers because dead corporations can't sue, and as long as the receivers got paid for a while, they didn't care.
Throughout the sales agreement and attachments the words "all rights, title, and interest in" shows up. POACRE hangs their hat on these words saying they represent their right to be the "Declarant of Covenants".
The operative questions are; what "rights, title, and interest" ? and to what properties do they apply?
The closing documents have an attachment that lists all the real estate that POACRE purchased and answers the above question. The attachment reads: "All properties listed in Exhibit A,....;saving and excepting all platted lots not listed..".
When someone is creating a specific list of properties being sold complete with full legal descriptions of each property, why would they put in a "saving and excepting" clause? When that clause is read in conjunction with the complete set of closing documents those words come through clearly as protecting all those lot owners not involved in the sales contract from any effect of the sale.
That means the recievers clearly intended that POACRE NOT be the "Declarant" and those property owners whose properties were not listed in Exhibit A were "saved and excepted" from being burdened by any "rights, title, or interest' that was being conveyed.
More information and evidence can be seen at Information on POACRE- Chesapeake Ranch Estates Community- POACRE Covenant Brief
I was sued for fees in District Court but as soon as I filed my statement of defenses [see attachment], the lawyers stepped in and put an indefinite stay order on the case. POACRE Admin apparently had bundled my stuff with several other collection actions which was also apparently NOT what the lawyers wanted to see happen.
1) it gives me a double opportunity for discovery
and
2) In District Court as the defendant, I would be in a position to force the entire burden of proof on POACRE.
My statement of Defense is attached to this thread.
After trading numerous briefs and countering motions for Summary Judgment, we are still waiting for an assignment of a judge.
Once a Judge is assigned, it really won't take much of a trial/hearing. The case will either be dismissed on procedural issues or it will be decided against POACRE and the County. It is unlikely to be dismissed since temporary Judges have ruled at least twice against the County and POACRE on identical motions to dismiss.
It will be decided against POACRE and the County for numerous reasons resulting in vacating the Special Tax District and the Covenants.
Arguments against the Special Tax District are basically constitutional and lengthy, and I don't expect the Court to even look at them. The Court will take the shortest route possible to issue relief.
The Tax District will be vacated because POACRE's Bylaws contain a poll tax which is in violation of Article 15 of the Maryland Declaration of Rights, the 5th, 14th, and 24th Amendments of the U.S. Constitution and so much more. The Bylaws are a poll tax because the law creating the Special Taxing District incorporates the bylaws by reference and by policy. Those bylaws require that all fees must be paid prior to any property owner being allowed to vote on issues regarding the STD and representation on the Board as the primary petitioners for the STD. It's a poll tax. This requires no argument or discovery and will be decided on stipulated facts and law.
The covenants are a forgery.
The proof is absolute and obvious simply by reading the closing documents signed by the Receiver for CRC, Inc. and POACRE. Those documents make assignments burdening POACRE with the "right" (duty) to collect certain fees and in part turn them over to the Reciever by the authority of a certain set of covenants that name the Developer as the rightful grantee (Declarant). There is no mention of transferring any covenant authority or perpetual assignment of covenant authority. There is a good reason they weren't assigned.
If the Receiver were to have assigned POACRE the power of "Declarant it would have negated any power of the Receivers to enforce the road and member dues fees collection process dictated in the agreements which split the pot between the POACRE Board and the Recievers. POACRE was never assigned "Declarant".
In Maryland, an assignment as "Declarant of Protective Covenants" must be made in writing. No such document was ever handed to POACRE, and the closing documents prove this.
Six weeks after those closing documents were signed, POACRE went about "amending" the original covenants referenced in the sales contract by removing the name of the Developer and installing POACRE in its place, breaching the agreement. Without written consent of the Reciever, this was an act of fraud making the covenants we now have a forgery.
Where the agreement of sale points to their authority in one set of covenants that named CRC, Inc. as the "Declarant" and where the agreement split the road fee and dues money between POACRE and CRC, Inc's creditors; and then POACRE amends the covenant and records it as an entirely new covenant naming POACRE as the "Declarant" and which changes the titles of the fees is not a hard thing to show the Judge. POACRE placed the sales agreement into evidence without knowing it containted the evidence required to prove the case against them.
It doesn't matter if the POACRE Board did it or if the members voted on it. Either way, POACRE as a corporation acting as a committee of grantors couldn't unilaterally remove the grantee of a contract and replace him by vote of acclamation with a different corporate grantee by amendment.
Just in case someone is scratching their head:
The closing documents signed by both POACRE and the Receivers give POACRE certain rights under the authority of the old covenants. They didn't have the authority to amend them to their benefit. The ballot was a sham to make the property owners think they were "taking control" of the covenants.
POACRE basically stole the corporate identity and contract rights of the Developer Corporation after it was dead. By law, if any of those rights remained intact they must be used for the benefit of the Developers creditors.
POACRE knew they were on fairly safe ground with respect to the receivers because dead corporations can't sue, and as long as the receivers got paid for a while, they didn't care.
Throughout the sales agreement and attachments the words "all rights, title, and interest in" shows up. POACRE hangs their hat on these words saying they represent their right to be the "Declarant of Covenants".
The operative questions are; what "rights, title, and interest" ? and to what properties do they apply?
The closing documents have an attachment that lists all the real estate that POACRE purchased and answers the above question. The attachment reads: "All properties listed in Exhibit A,....;saving and excepting all platted lots not listed..".
When someone is creating a specific list of properties being sold complete with full legal descriptions of each property, why would they put in a "saving and excepting" clause? When that clause is read in conjunction with the complete set of closing documents those words come through clearly as protecting all those lot owners not involved in the sales contract from any effect of the sale.
That means the recievers clearly intended that POACRE NOT be the "Declarant" and those property owners whose properties were not listed in Exhibit A were "saved and excepted" from being burdened by any "rights, title, or interest' that was being conveyed.
More information and evidence can be seen at Information on POACRE- Chesapeake Ranch Estates Community- POACRE Covenant Brief
I was sued for fees in District Court but as soon as I filed my statement of defenses [see attachment], the lawyers stepped in and put an indefinite stay order on the case. POACRE Admin apparently had bundled my stuff with several other collection actions which was also apparently NOT what the lawyers wanted to see happen.
1) it gives me a double opportunity for discovery
and
2) In District Court as the defendant, I would be in a position to force the entire burden of proof on POACRE.
My statement of Defense is attached to this thread.
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bump
Oh, and by the way...POACRE filed a collection action against me in District Court......and then when I filed my intention to defend statement (see attachment) citing that the covenants were a forgery, the POACRE attorney filed a stay on the hearing pending outcome of the Circuit Court decision.
Anyone else in POACRE get a stay on collections? There are hundreds pending.
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n0n1m0us3
why so serious
Thanks for the update. Hopefully there will be a judge assigned quickly so we can move forward.
About POACRE substituting their name in the contracts and committing fraud/forgery, isn't that criminal? When the judge finds against POACRE will criminal charges be filed against the participants in the forgery/fraud? I certainly hope so.
About POACRE substituting their name in the contracts and committing fraud/forgery, isn't that criminal? When the judge finds against POACRE will criminal charges be filed against the participants in the forgery/fraud? I certainly hope so.
It is criminal, but the original perpetrators are all either dead or so old no prosecutor would ever go after them.
It's difficult to decipher the actual statute of limitations, the clock would start at the point of judgment which would be generally the point of discovery of the fraud for the larger community. This is because POACRE hid the sales agreement from the public eye for more than 20 years which stopped the statute of limitations from running out.
It is also criminal that POACRE continues to perpetuate the fraud even though they have had this information all along. That makes me think that they should have their corporate shield stripped away.
Considering the weight of the evidence, the best thing, IMHO, would be for them to just fess up in order to save the last shred of credibility they may have. Take their lumps and start over. I believe this may be their best defense from the potential class action lawsuits that may be filed for their wrongful covenant enforcement and hard fisted collections.
If the POACRE Board waits for a judge to hand down a decision against them, they will not come back from it. The credibility of the POACRE organization will be forever shredded, if it isn't already. They may even be forced into receivership due to the fraud.
Remember, even when the decision is handed down, the POACRE corporation, such as it is, will still be the titled owner of all the properties bought in 87 and all they have inherited since then. They just won't have any means to support the amenities or roads and the community will be forced to find other ways to manage our collective assets.
According to the Bylaws, each property owner in the CRE is an equal share owner of the commonly owned properties NOT BECAUSE THEY ARE A MEMBER OF POACRE, but because they are owners of their own property within the subdivision. [see page 1 of Bylaws]
I custodiet ipso custodes!
Veni, Vidi, Vici
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In the last legislative session, just after I filed the lawsuit against the County, they quietly submitted HB 1200. See the attachment.
n0n1m0us3
why so serious
Maybe if you posted this in the main section instead of the private Chesapeake Ranch forum more people would see this.
n0n1m0us3
why so serious
This should be very interesting to see how all this goes down. I hope all this mess is settled soon.
bump
It'll just go into the next round of litigation. Someone will sue that the road is not paved / paved / plowed / not plowed / the cliffs crumbling / not crumbling .....
bump
bump
Maybe I was wrong. More than 1000 hits in less than a week. The lawyers must be sucking this stuff up.
CableChick
Loved
So let me ask you this. Do you really think the community will find another way to collect fees and manage the assets? Jumping from the the frying pan to the fire comes to mind ......
Necessity is the mother of invention. So long as the invention is done in a legal way, I think everyone will agree that there needs to be some kind of financial system for funding the roads and amenities.
I am not against covenants as long as they are reasonable, and reasonably enforced, and legally installed. But what we have here is a set of covenants poorly written, poorly enforced, and not legal. Enforcement becomes a larger issue when certain personality types are able to gain control of the Board and govern with no impunity or accountability for their acts.
There are numerous options available for this community:
1. County take over of the roads in accordance with a contract they signed and ordinance passed in 1988. [See attachment] The SHUR agreement already establishes the the County has a vested interest in maintaining our road system and that they consider our roads as a "public benefit". They need the major arteries as an evacuation route for the gas plant. [ See emergency plan on the County website]
2. New covenants establishing just the fee structure for O&M and leaving the rest to County code enforcement.
3. A Road District with local management Board separate from County Govt. that has the power to bond finance could be established. (requires special legislation)
4. Municipal Incorporation.
In the short term, an accelerated selloff of the burdened residential lots owned by POACRE would be necessary to keep a minimum staff and maintenance going.
Items 1&2 could be done in less than six months if there were enough local support.
Item 3 would take more than a year.
Item 4 could be accomplished in two years, and probably less with some legislative help.
I know which I would support, but it will be up to each household to make up its own mind based on the percieved benefit and cost.