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Abercrombie signs bill intended to protect distressed Hawaii homeowners











Bill Cresenzo
Reporter- Pacific Business News

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Gov. Neil Abercrombie on Wednesday signed into law a bill that narrows the scope of attorneys who can act as ”distressed property consultants” and are exempt from Hawaii’s Mortgage Fraud Prevention Act, an effort that advocates say will add further protection to prevent homeowners from falling victim to mortgage rescue fraud.

The legislation stemmed, in part, from cases in which distressed home owners were bilked out of $1.5 million.

The bill is also in response to people who have tried to evade prosecution under the Mortgage Fraud Prevention Act, which regulates who can act as a consultant. Before the new law was signed, out-of-state attorneys were able to call themselves “distressed property consultants.“ and were exempt from the act.

House Bill 2275 says that only attorneys who are licensed to practice in Hawaii can be exempt from the strict regulations that the act dictates.

Under the act, people who act as consultants to stop foreclosure must provide a contract and cannot collect fees before the services are performed, among other things.

“This change will ensure that all attorneys performing distressed property consulting in Hawaii are subject to the Hawaii Rules of Professional Conduct and fall within the jurisdiction of Hawaii’s Office of the Disciplinary Counsel,”  Bruce Kim, executive director of the state Department of Commerce and Consumer Affairs, said in written testimony.

Bill Cresenzo covers residential real estate and transportation issues for Pacific Business News.


Article source: http://www.bizjournals.com/pacific/news/2014/04/23/abercrombie-signs-bill-intended-to-protect.html

Coral Springs woman fights 10th eviction in nine years – Sun

It started as a routine eviction.

Hanaraj “Andy” Ganaishlal, owner of a duplex in Coral Springs, had a tenant who wasn’t paying rent. So he went to court last December to get her out.

But the tenant, Tamica Jordan, 40, is no stranger to the process — court records show she has been evicted 10 times in nine years — and Ganaishlal, her latest landlord, is now locked in a legal battle to regain access to his own property.

  • Maps
  • 4300 Northwest 110th Avenue, Coral Springs, FL 33065, USA

Jordan rented the two-bedroom unit on the 4300 block of Northwest 110th Avenue in Coral Springs in August 2013, according to Ganaishlal’s attorney, Scott Chapman. She paid her first and second month’s rent of $1,350 each on time, according to court filings, but her check for October bounced and a third party paid for her.

Since then, according to Chapman and court documents, she has not paid a dime.

According to the Broward State Attorney’s Office, there’s not much in the law to stop someone from promising but failing to pay rent. As long as the tenant does not misrepresent herself or engage in a criminal action, such as providing the landlord with a false identity, the tenant is legally entitled to be on the property and cannot be prosecuted for trespassing or any other crime.

Ganaishlal, a postal worker, never ran a background check on his new tenant, Chapman said. If he had, he would have learned that she had nine eviction judgments against her in three states — California, Virginia and Florida — in the previous eight years.

Last year, Jordan was one of several South Floridians accused of taking advantage of Florida’s controversial adverse possession laws. According to court records, she somehow secured the keys to a vacant single-family house in Boca Raton and moved her belongings in, along with her two children.

The homeowner, who lives in Alabama, called the Palm Beach County Sheriff’s Office, but there was nothing they could do — the law’s protections for tenants led deputies to handle the matter as a civil dispute. Jones was able to stay in the house for months before the owner could have her removed through a formal eviction process.

A background check would have disclosed it all, Chapman said. “If you don’t run a background check in this day and age, you’re asking for trouble.”

Now, Chapman said, Ganaishlal is worried that he’ll face foreclosure on the property.

Kelly Gontarski, owner of the Pensacola-based StarPoint Tenant Screening firm, said technology has made it easier for landlords to research tenant histories regardless of where prior evictions have taken place.

“Companies like mine offer a national eviction search,” she said. “There are information providers we work with that aggregate information from courthouses across the country. We don’t have to visit every single county courthouse to gather the information. In the age of technology, information is pooled.”

Calls to Jordan, who is representing herself in court, were not returned last week and this week. In a March 2013 interview with the Sun Sentinel, she denied allegations of being a “serial squatter,” saying, “That all sounds crazy.”

Alan Sackrin, an attorney representing Jordan on a separate matter, said Jordan disputes previous media coverage of her cases, but declined to list any inaccuracies.

Ganaishlal won a judgment against Jordan on Jan. 22, but she filed an appeal last month that could extend the process for another 60 to 90 days. She also filed a lawsuit claiming the unit was damaged and uninhabitable, even though she was still living in it. Her claim is set for trial in June.

raolmeda@tribune.com, 954-356-4457, Twitter @SSCourts

Article source: http://www.sun-sentinel.com/fl-squatter-eviction-challenge-20140424,0,3985182.story

HOA HOMEFRONT: Removal of pool, neglected foreclosed homes – Press

Dear Mr. Richardson:

Can a board fill and take away the association’s pool without a vote by the owners/residents? Can homeowners association (HOA) board members meet without the management company? Our management company says no, it’s illegal. B.D., Riverside Dear B.D.:

A normal responsibility of a board is to maintain and repair common areas. Some governing documents restrict the ability of the board to add or remove common area amenities, but many do not. This may well fall into category of whether the board should make the decision without community input. Such an action may well be very necessary (expense of pool maintenance, upkeep and heating, for example), but it would be a good idea to have a “town hall” meeting, or perhaps take a poll of the members, to try to find out what the membership wants to do.

The decision ultimately is still the board’s to make, but having input from the owners is healthy.

As to meeting without the management company, no, it is not illegal. If the issue to be discussed involves the management company (such as reviewing its contract or its performance), then the company should not be represented at the meeting. Otherwise, managers are usually very helpful and necessary at board meetings.

Dear Sir:

I live in a 55-and-older HOA. In the course of the past few years, several homes were left by the owners and appropriated by the banks. Of course, with water cut off, the front lawns became brown and weeds grew very tall. What are the HOA’s legal rights to the outside of the property to stop its dismal look? Can the employees of the community be sent out to clean the lawns and cut the weeds? Can they spray a green organic paint to cover the ground? In short, what can be done by the HOA and how often can the processes be repeated?

We really would like an answer to these questions as our board and management feed us reasons that we do not believe.

Regards, C.C, Banning Dear C.C.:

Some governing documents allow the association to warn a member and then conduct maintenance and bill or even lien the irresponsible owner.

If not, there is a relatively new state law that can be very helpful, if the city will act. Civil Code Section 2929.3, enacted in 2012, allows a city to impose a fine of $1,000 per day against an owner who takes ownership by foreclosure and then fails to properly maintain the property. Under this law, “failure to maintain” includes: failure to care for the exterior of the property, letting the landscaping go wild, not removing squatters, or allowing standing water to breed mosquitoes.

Unfortunately, instances of a city invoking this law are very rare. Fortunately, the number of properties in foreclosure has substantially decreased — according to Lesley Appleton-Young, chief economist of the California Association of Realtors, sales of bank-foreclosed homes in 2013 dropped by 63 percent from 2012, and in December 2013 such sales were only 5 percent of all sales.

A bank that owns an association residence is an association member, and can be disciplined as a member. So, even if the city does not act, your board may. Banks need to be good neighbors, too.

Thanks, Kelly

Kelly G. Richardson CCAL is Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice. Send questions to KRichardson@RHOpc.com. Past columns — www.HOAHomefront.com. All rights reserved® 2014.

Article source: http://www.pe.com/local-news/local-news-headlines/20140424-hoa-homefront-removal-of-pool-neglected-foreclosed-homes.ece

Elizabeth Warren vs. Washington: Why she’s taking on the Beltway’s …

As soon as the barbecue was eaten and the last student had left, I called Bruce. He was out of town at a conference with a bunch of other history professors. Otis was sprawled across the floor, his belly bulging from the bits of meat and cornbread that the students had slipped his way. I put on my telephone headset and my long white apron and cleaned up the dishes while we talked.

I told Bruce that Senator Reid had asked me to join a five-person Congressional Oversight Panel. COP: what a great name! I wondered if I might actually get a badge and a set of handcuffs—okay, no handcuffs, but maybe a badge?

Six weeks earlier, in near panic, Congress had agreed to authorize a $700 billion fund to bail out the financial system—the Troubled Asset Relief Program, or TARP. The bill that set up TARP also created COP, which was assigned the task of monitoring how Treasury handed out the bailout money.

“This is really amazing,” I said to Bruce. “I can’t wait to meet the Treasury people, to talk about how they plan to use the money. Maybe I should cancel office hours tomorrow and fly to Washington.” I was revved up and ready to go; it felt good to think about helping out.

Bruce was Bruce—happy that I was excited, but a lot calmer than I was. “I haven’t read anything in the paper about a cop.” (Bruce is a traditional guy; he still gets his news from old-fashioned printed newspapers.) “What exactly will you be doing, babe?”

I paused. “Oh. Well. Hmmm. I haven’t seen anything about a cop either, but I guess I’ll get to do cop stuff. You know, check out how things are working, investigate, and tell them if things are wrong. At least I think so.” It occurred to me that Senator Reid hadn’t said exactly what my role would be, so I didn’t have a clue.

It was after midnight when we hung up and I pulled out my laptop. I located the law authorizing the gigantic fund that would go to the Treasury Department to deal with the country’s “troubled assets.” Eventually I found the section dealing with COP. My optimism about how I could help sank a little.

The new law spelled out how a five-member panel would be chosen, how we’d get paid, and how expenses would be reimbursed. But the section describing the duties of COP had essentially one entry: “Submit reports.” COP was supposed to give Congress a report every thirty days. That was pretty much it. Huh: no arrests, no handcuffs, no perp walks.

And what tools would we be given so that we could oversee the distribution of all that money? The statute said we could “take testimony,” but the lawyer in me instantly noticed that COP would have no subpoena powers. We could politely invite people to testify . . . and they could politely decline. (Or impolitely, if they preferred.) We could also ask agencies for “official data,” and the agencies “shall furnish it.” But if we wanted something the agencies deemed “unofficial,” well, we could be out of luck.

Okay, so our authorities were limited. No ability to subpoena witnesses. No power to blow a whistle to stop the flow of money if we thought something shady was going on. And there was no requirement that the secretary of the Treasury explain his strategy to us.

Nope, none of that. It looked like the law setting up COP envisioned that its role would be to write boring reports that would gather dust while the economy tumbled over a cliff. In other words, this new adventure in Washington might not be nearly as productive as I had hoped.

But when Harry Reid had asked, I’d said yes—so I was going, like it or not.

How a Downturn Becomes a Meltdown

Whenever I think of the meltdown, I still think of Flora. (I’ve changed her name to protect her privacy.) She was probably in her eighties by the time we spoke with her in 2007 while conducting interviews for more bankruptcy research. She explained that she and her husband had retired and moved to a small town in the South a few decades earlier to be near family. They bought a modest house. (“That’s all we needed.”) Flora’s husband had passed on, and she was on her own now. Flora said that until recently she had been doing fine, getting by on her Social Security check each month.

Flora explained that she’d gotten a call a few years ago from “a nice man from the bank.” She said he’d told her that because interest rates were low, he could give her a mortgage with a lower payment. She’d asked him what would happen to the payment if interest rates went back up. According to Flora, he’d assured her that “the banks know about these things in advance” and that he would “call her and put her back in her old mortgage.”

She had taken the deal, and before long, her payments had shot up. She paused, then said quietly, “He never called.” The new monthly payment swallowed nearly every penny of her Social Security check. She had tried delaying her payments, borrowing on credit cards, going to a payday lender, but it had all come crashing down.

The Bankruptcy Project, which my co-researchers and I had developed to find out more about families who filed for bankruptcy after the laws were changed, had promised her $50 in return for participating in an hour-long interview. She knew we planned to send the money to the address she’d given us and understood that it would take a few weeks. She explained that next week she would have to leave her home.

“I’ll be living in my car,” she said, “at least for a while. I don’t know how I’ll get mail, so can you tell me how to get my fifty-dollar check? I really need it.”

That’s the real story behind the meltdown: the mortgage market sank, one Flora at a time. Some homeowners made bad decisions or tried to game the system, but many others got trapped by lousy mortgages sold to them by sophisticated financial institutions that should have known better.

By the early 2000s, the mortgage companies could see how much money the credit card lenders were racking up with deceptively low “teaser” rates, and a lot of them wanted to get their turn at the trough. And boy, did they get it. With interest rates effectively deregulated, there was no longer any limit on what these banks could charge, so the subprime lending spree was born.

New “mortgage products” popped up like weeds. Families were offered loan agreements that used unfamiliar terms like “balloon payments” and “option ARMs” and “prepayment penalties.” A lot of people didn’t look too closely at the deals—and like Flora, many relied on the word of a salesman who gave a slick description of the arrangements. As the mortgages got more complicated, lenders found plenty of new opportunities to slip in an extra trick here or a little trap there.

Many lenders made a mad dash for quick profits, abandoning their time-honored practice of carefully investigating job histories and pay stubs before approving a mortgage. Down payments shrank. Penalties and fees shot through the roof. Mortgage lending became so profitable that salesmen went door-to-door, often targeting African American and Latino neighborhoods for their highest-cost, most deceptive products. Other lenders pursued seniors like Flora.

Sometimes they pitched a lower monthly payment, and sometimes they pitched immediate cash. Millions of families had already run up tens of thousands of dollars in credit card debt, and these loans sounded like a lifeline. A lot of TV pundits were telling people that they were fools to pay the high interest rates associated with credit cards. Even Federal Reserve chairman Alan Greenspan urged Americans to “tap” their home equity. The math seemed compelling: Why pay 19 percent on your debt to a credit card company if you could pay 3 percent on a subprime mortgage? Of course, 3 percent was just the low introductory rate. And those glossy ads never showed how your rates might skyrocket over time, as the interest rate adjusted or if you missed a payment or two. And the ads never, ever showed pretty homes with red foreclosure signs out front.

Fueled by all that new mortgage money, home prices caught fire. As the prices shot up, speculators jumped into the game. Everyone seemed to have a story about someone they knew who was getting rich by flipping houses. And as long as home prices kept rising, it was easy to overlook the danger signs. After all, anyone who couldn’t pay the mortgage could always sell their house for a profit—or they could as long as the happy music kept playing.

And then the music stopped. When the market finally collapsed, millions of people were caught in a trap. They couldn’t pay their mortgages, they couldn’t refinance, and they couldn’t sell their homes. By late 2008, one out of every five mortgage holders owed more than their homes were worth. The banks called in the loans, and the foreclosure notices piled up.

The housing crash ripped a huge hole right through the middle class. A home isn’t just a place to live; for most families, it’s their most valuable asset. It’s the savings plan, the retirement plan, and the inheritance all wrapped up in one big, bright package. Pay off the mortgage, and a family has a comfortable life raft, come what may. But if the mortgage is “underwater” and a family owes more than their house is worth, that life raft is made of cement.

When the housing market sank, so did America’s middle class.

Oversight in the Dark

The week after Senator Reid called, I went down to Washington to meet some of the other panel members and start figuring out the business of oversight. We needed to get organized, and we needed to do it fast.

TARP had been passed with an odd mix of Democrats and Republicans, but the effort had been spearheaded by President Bush’s secretary of the treasury, Henry Paulson. When the COP panelists arrived in Washington for the first time, TARP had been law for only seven weeks, but already the Treasury had committed a whopping $172 billion. We were deeply concerned that a lot of money was flying out the door with little oversight in place, so we had asked for a brief meeting with Secretary Paulson and other Treasury officials.

On Friday, November 21, I stood at the big gates in front of the Treasury Building and tried to catch my breath. I met up with two of my fellow panelists: Damon Silvers and Richard Neiman. The three of us were the Democratic appointees; Speaker Nancy Pelosi had appointed Richard, Senator Reid had appointed me, and the two lawmakers jointly had appointed Damon.

Damon Silvers is a big guy—tall, with big hands and big feet. He wears loose-fitting black suits and white wash-and-wear shirts, and he talks with the kind of speed that suggests his brain is full of ideas that are elbowing to get out all at once. After getting three degrees from Harvard—undergraduate, MBA, and law—he could have gone for the big bucks, but that wasn’t Damon. Instead, he organized strawberry pickers in California and shipyard workers in New Orleans, and eventually he became associate general counsel of the AFL-CIO. I knew him a little from the bankruptcy wars, when the AFL had weighed in on our side against the big banks, and I figured I was in good company.

The other panelist, Richard Neiman, had started as a banking regulator, then spent much of his career in the banking industry before becoming New York’s chief banking supervisor. I didn’t know Richard before that day, but I hoped his extensive experience would be helpful.

The Treasury Building is a National Historic Landmark that looks a lot like the White House—only much bigger and more fortress-like. It’s 120,000 square feet of stately columns and white marble, all of it carefully guarded behind iron gates, with no public access. Its security is run by the Secret Service. Behind the gates is the first guard station, where visitors must be cleared; the second security check—including a walk-through metal detector and a full screen of all packages—is located just inside the building. Visitors must be checked twice to make certain they are on pre-cleared lists. After we were allowed to pass, we were met by an escort who walked us quickly to the meeting room.

This was my first visit to the Treasury Building, but there was no time to look around. We were told that Secretary Paulson was not available, but we would be spending a few minutes with other officials, including Neel Kashkari, Paulson’s assistant secretary, who had been named to administer TARP.

We knew time was tight, so as soon as Kashkari appeared we jumped straight to the point of our visit. We pressed him on the status of the big financial institutions: Did Treasury anticipate additional bailout assistance to the giant banks? Could we see the terms of the arrangements that had been worked out so far? Kashkari objected to the word bailout, so we wrangled about that for a couple of minutes. But he was very clear on one point: The big cash injections were done, and Treasury would now concentrate on getting assistance to smaller banks.

The meeting was short, and we were soon back out on the street, outside the heavy iron gates.

Our meeting was on Friday. Less than forty-eight hours later, the news broke that Treasury had just made a huge new commitment to Citibank, a giant bank that had already received $25 billion in TARP money. Now Treasury was giving $20 billion in additional TARP bailout funds to Citibank, plus a $306 billion taxpayer guarantee. The numbers were staggering—and the timing was even more staggering. As best we could piece together from the news reports, at the same time we were receiving reassurances from the head of TARP that the big bailouts were finished, his colleagues were down the hall negotiating this gargantuan deal to bail out Citibank for a second time. In fact, the special inspector general for TARP would later report that this weekend was known in the halls of Treasury as “Citi-weekend.”

I was stunned—and furious. I understood that this was a crisis, and I knew that sensitive information might need to be closely held. I also understood that we might be asked to keep something confidential for a period of time or even that some official might say, “I can’t tell you that right now” and explain why. But that wasn’t what had happened. During our meeting, the team at Treasury didn’t hesitate and didn’t hedge. They sent us out of the room knowing we believed that the big bailouts were over and knowing exactly how wrong that belief was.

Our panel hadn’t even had our first organizational meeting, but whatever vision I’d had of cooperation and candor had vanished. If we wanted any transparency in this process, we would have to fight for it every inch of the way.

Excerpted from “A Fighting Chance” by Elizabeth Warren. Copyright © 2014 by Elizabeth Warren. Reprinted by arrangement with Metropolitan Books, an imprint of Henry Holt and Company LLC.

Article source: http://www.salon.com/2014/04/23/elizabeth_warren_vs_washington_why_shes_taking_on_the_beltways_conventional_wisdom/

Estate owners, Cook forest preserve in tug of war over land

A Cook County judge might rule Wednesday on a lawsuit accusing the Forest Preserve District of Cook County of unlawfully getting involved in a private foreclosure dispute involving Horizon Farms, a 400-acre Barrington Hills estate and horse farm.

The complaint, filed by four people including Horizon Farm owners Meryl Squires Cannon and Richard Kirk Cannon, alleges the forest preserve district unlawfully spent $14.5 million in public funds to acquire an interest in the Horizon Farms property from BMO Harris Bank. The bank initiated foreclosure proceedings against the Cannons in 2009, after the couple failed to repay a $14.5 million loan.

Attorney Matt McBride, representing the plaintiffs, contends the forest preserve district is not allowed to purchase bank promissory notes or lien loan documents, though it can buy property outright. He will ask the court to rule that the forest preserve district does not have the authority to use public funds in private foreclosure litigation and to void the forest preserve district’s purchase of the estate.

The actions of the forest preserve district “are very concerning for any taxpayer in Cook County and for any homeowner,” said McBride, who said Horizon Farm was assessed at $7 million at the time the forest preserve district committed more than double that amount.

“The forest preserve district is not allowed to interject itself in private litigation and spend taxpayer funds” to do so, he said.

McBride argues in his brief that the district’s actions constitute a “real and imminent” threat to anyone who has a private mortgage and is in default.

“If the forest preserve district’s legal position is accepted, there would be nothing to stop them from negotiating with the bank, showing up on your property and saying, ‘this is ours,’” McBride said.

Forest Preserve District spokesman Don Parker declined to discuss the lawsuit, saying “we don’t believe it would be appropriate for us to comment at this time on the ongoing litigation.”

The Cannons continue to contest the foreclosure of their property, which is home to more than 40 show and races horses and reportedly one of the largest private estates in the Northwest suburbs. In a separate affidavit, Cannon states that another lawyer approached the couple on Feb. 8, 2013, about signing over the deed to the estate to an unnamed client. On Feb. 19, Cannon said, he learned an unnamed buyer had purchased the $14.5 million note. On June 28, 2013, the Cannons learned the purchaser was the forest preserve district, according to the affidavit.

Although part of Horizon Farms borders Algonquin Road and is publicly accessible, the property is not “physically connected to forest preserve-owned property,” Cannon said.

Cannon said a significant portion of the north end of the property adjacent to and including Goose Lake is subject to homeowner’s association restrictions, meaning it is available for the use of residents and their invited guests only, not the general public.

Along with the Cannons, the plaintiffs in the suit are Todd Baker and Wanda Dziopek.

Article source: https://www.dailyherald.com/article/20140423/news/140429403/

Ellis v. Renaissance on Turtle Creek Condominium Association, Inc.

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-10227

Before Justices FitzGerald, Lang, and Fillmore

OPINION

DOUGLAS S. LANG JUSTICE

Appellant Thomas J. Ellis appeals the trial court’s summary judgment against him on a counterclaim by appellee The Renaissance on Turtle Creek Condominium Association, Inc. (the “Association”) pertaining to foreclosure of a lien on a condominium unit. In three issues on appeal, Ellis contends the Association was not entitled to (1) summary judgment on its counterclaim for unpaid assessments and fines in the amount of $13, 405.64; (2) attorney’s fees of $20, 000 for services pertaining to the counterclaim, $5, 500 respecting the foreclosure, and $30, 000 for each unsuccessful appeal; and (3) foreclosure respecting the property described in the judgment. For the reasons below, we decide Ellis’s three issues against him. The trial court’s judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit was filed by Ellis in August 2010.[1] In his live pleading at the time of the judgment complained of, Ellis (1) asserted he owned “a condominium unit more specifically described as 3225 Turtle Creek Boulevard, Unit 1208, Dallas, Texas, 75219″ and (2) contended appellees had filed fraudulent liens pertaining to that property.

Both appellees filed general denial answers. Additionally, on August 30, 2011, the Association filed a counterclaim in which it sought (1) recovery of “delinquent assessments” owed by Ellis, (2) foreclosure of its “continuing lien against Ellis’ unit 1208, ” and (3) “attorney’s fees and costs.”

In December 2011, (1) appellees filed a no-evidence motion for summary judgment on Ellis’s claims and (2) the Association filed a traditional motion for summary judgment on its counterclaim. In the “Introduction” and “Statement of Relevant Facts” in its traditional motion for summary judgment, the Association asserted in part

The Plaintiff is the owner of Unit 1208, a condominium unit in The Renaissance on Turtle Creek Condominium (the “Condominium”) located at 3225 Turtle Creek Boulevard, Dallas, Texas 75219. . . . The Plaintiff is delinquent in paying regular monthly dues assessments and other charges owed to the Association under its condominium declaration and bylaws.

The bylaws of the Association . . . authorize and direct its board of directors to perform certain duties necessary for the administration of the Association, including but not limited to, establishing the amount of monthly assessments and collecting same from owners; collecting delinquent assessments against any owner and the owner’s unit; abating any nuisance; enforcing the terms of the Condominium Declaration; and enforcing the compliance with the rules and regulations adopted by the Association through any means deemed necessary or appropriate, including the use of penalties levied for violations. . . .

. . . On May 27, 2009, Plaintiff violated the Rules and Regulations by playing loud music in his unit at approximately 8:00 a.m. . . . In the course of a running dispute with his upstairs neighbor, Plaintiff embarked on a campaign of repeated and deliberate violations of the Association’s Rules and Regulations by

loudly banging on his ceiling. The first “banging” violation, which occurred on or about August 5, 2009, constituted a second violation of the Rules and Regulations, resulting in a fine of $250 in accordance with the Association’s fine schedule. Despite receiving a written notice to refrain from future violations, Plaintiff committed a third violation on or about August 31, 2009 by again loudly banging on his ceiling. In accordance with the Association’s fine schedule, Plaintiff was fined $500 and was issued another written notice to stop the egregious conduct. During the ensuing ten (10) months, from September 7, 2009 to July 28, 2010, Plaintiff was cited for nine (9) additional violations for loudly banging on his ceiling. In accordance with the Association’s fine schedule, Plaintiff was fined $500 for each of these flagrant violations of the Rules and Regulations. . . . Plaintiff violated the Rules and Regulations again on or about April 5, 2010 when he raised his voice in a common area lobby, and used an abusive tone and vulgar language toward the Association’s staff. Pursuant to the terms of the fine schedule, Plaintiff was fined $250 for this violation and was duly notified of same.

. . . The Plaintiff refused to pay the above-described fines, totaling $5, 500.00.

(citations to record omitted).[2] The Association stated that starting in August 2009, all payments received by Ellis were applied first toward the payment of outstanding fines and other charges in accordance with the Association’s payment policy. Thus, although Ellis made monthly payments approximately equal to the monthly dues assessments owed by all unit owners, he became delinquent as to those monthly dues assessments. The Association asserted that as of the end of October 2010, “the Plaintiff’s monthly dues assessments account was delinquent in the amount of $6, 865.00.” Further, the Association contended (1) Ellis “failed and refused to make any payments to the Association” from December 2010 through the date of the motion and currently owed a total of $13, 405.64 plus interest; (2) it “has a continuing assessment lien against the Plaintiff’s unit 1208″ on which it was entitled to foreclosure; and (3) in accordance with the “Condominium Declaration” and Texas law, it was entitled to recover reasonable and necessary attorney’s fees incurred in connection with its counterclaim.

In the “Argument and Authorities” section of its traditional motion, the Association asserted in part

As set forth below, the Association is entitled to judgment, as a matter of law, because the pleadings and summary judgment evidence demonstrate there is no genuine issue as to any material fact regarding Plaintiff’s ongoing breach of the Association’s Condominium Declaration, Bylaws and Rules and Regulations, and his personal liability for the delinquent amounts owed as a result of that breach. . . . Accordingly, the Association is entitled to summary judgment against Plaintiff on its entire Counterclaim for the full amount due and owning, and for foreclosure of its assessment lien against Plaintiff’s unit. . . . .

Pursuant to its authority, the Association established regular monthly assessments, adopted the Rules and Regulations regulating the conduct of the owners and governing the use of the Condominium, established a system of fines for violations of the Rules and Regulations, and adopted a Payment Application Policy setting forth the order in which payments from a unit owner will be applied to satisfy charges for which the owner is liable. The Plaintiff is bound by the Association’s authority, must abide by the Association’s actions taken under such authority, and is personally liable to the Association for the consequences of his actions in contravention of that authority. Therefore, for his repeated breaches of the Condominium Declaration, Bylaws and Rules and Regulations, the Association is entitled to a summary judgment against Plaintiff in the amount of $13, 405.64, together with interest at the rate of 18% per annum.

Attached to the Association’s traditional motion for summary judgment were affidavits of (1) Duane Bates, general manager of the Association, and (2) John A. Isbell, an attorney hired by the Association.

Bates testified in part in his affidavit (1) “I have personal knowledge of the facts stated herein and they are true and correct” and (2) “As of November 18, 2011, the Plaintiff owes a total of $13, 405.64, including delinquent regular monthly assessments, fines, late fees and other charges.” Additionally, Bates’s testimony included descriptions of noise and conduct violations by Ellis essentially identical to those described in the Association’s traditional motion for summary judgment. Further, Bates stated in part in his affidavit

As the General Manager, I am the custodian of the records for the Association and I am familiar with the documents attached hereto . . . . These records are kept by the Association in the regular course of business. It was the regular course of the Association’s business for an employee or a representative of the Association, with personal knowledge of the act, event or condition recorded, to make and preserve the documents attached hereto . . . .

Exhibits attached to Bates’s affidavit included, in part (1) a “Condominium Declaration for The Renaissance on Turtle Creek Condominium” (the “Declaration”); (2) “Bylaws of The Renaissance on Turtle Creek Condominium Association, Inc.”; (3) “Rules and Regulations of The Renaissance on Turtle Creek Condominium Association, Inc.”; (4) resolutions adopting the rules and regulations, a “revised fining structure” and a “payment application policy”; (5) a “resident transaction report” showing an accounting of amounts owed by Ellis to the Association and payments made by Ellis from January 2009 through November 18, 2011; and (6) twelve written notices from Bates to Ellis describing violations committed by Ellis and the fines imposed.[3]

Isbell’s testimony in his affidavit included in part (1) assertions that he has been licensed to practice law in Texas continually since November 1987, is a partner in a law firm, and has “personal knowledge of the facts stated herein, ” and (2) a list of specific tasks that “attorneys and paralegals at my firm, including myself, have done, have caused to be done, or will do . . . in connection with the Association’s Counterclaim, ” including, inter alia, “engaged in extensive written discovery.” Additionally, Isbell testified in part

I have represented clients in cases of this nature, and I have developed a level of specialization in cases of this kind. Based upon my professional experience and my knowledge of the services rendered and the costs and expenses incurred, I am able to form, and have formed, an opinion as to the reasonable fees for performing similar legal services . . . . In my opinion, a reasonable and necessary attorney’s fee for the performance of such legal services and of the necessary costs and expenses for the prosecution of the Association’s Counterclaim through the conclusion of the summary judgment proceeding is $20, 000, based on the expenditure of approximately 73 hours of professional time at my rate of $275 per hour. This amount is segregated from and does not include the extensive attorney’s fees incurred by the Association and its co-defendant to defend the suit filed by the Plaintiff. Furthermore, should the Court grant the Association a summary judgment foreclosing its lien against the Plaintiff’s unit, in my opinion a reasonable and necessary attorney’s fee for assisting the Association with the sale of the unit would be $5, 500, based on an estimated expenditure of 20 hours of professional time at my rate of $275 per hour. These reasonable fees are usual and customary for the type of legal services performed in cases of this kind.

Finally, Isbell testified that in his opinion, “a fee of $30, 000.00 would be a reasonable fee for the filing of a brief and for each hearing before the Court of Civil Appeals” and “an additional fee of $30, 000.00 would be a reasonable fee for the filing of a Petition for Review to the Texas Supreme Court, and for each hearing before said Court.”

Ellis filed a response to the Association’s traditional motion for summary judgment in which he stated in part

The majority of [the Association's] 1.3″ thick Motion appears to be establishing the rights of the Homeowner’s Association to charge monthly assessments or to enforce legally adopted Rules Regulations. Plaintiff does not dispute the general rights of the HOA, but does dispute the rights of the HOA to illegally enact Rules, issue bogus Fines to an owner as a means to harass and intimidate them, and to refuse to allow an owner to pay assessments and then file liens claiming non-payment. . . . . . . .

[The Association's traditional motion for summary judgment] states that from the end of 2010 to date Plaintiff has refused to pay regular monthly assessments. This statement is known to be false based on the attached documents that show Plainitiff repeatedly attempted to pay legitimate monthly assessments but Defendants refused by ignoring Plaintiff’s request for assistance. . . . . . . .

. . . Defendants issued Plaintiff a fine for allegedly being witnessed banging on the ceiling and disturbing the occupants above. This despite Defendants’ own staff explaining to [the Dallas Police Department] (at Defendant’s instruction) it was not possible to make such a determination.

(emphasis original).

Attachments to Ellis’s response included (1) correspondence from Ellis to the Association in which Ellis informs the Association that a “security breach” recently occurred at his bank, inquires whether the Association’s records show certain payments to his account with the Association, and asks the Association to “verify what payments were actually received”; (2) written notices from the Association to Ellis informing him that his account is “currently outstanding due to repeated violation notices” and attempting to collect amounts owed; (3) a November 10, 2010 letter from the Association to Ellis informing Ellis that a check he submitted to the Association “was returned for ‘Payment Stopped’” and “[o]nly funds in the form of cashiers check or money order will be accepted at this time”; (4) emails from Ellis to a recipient at “rtchoa.com” complaining of noise coming from the unit above his; (5) incident reports by the Dallas Police Department and the Association’s security personnel stating police responded to calls from Ellis in 2009 and 2010 respecting noise in the unit above his and were told by the Association’s security personnel on September 1, 2009, that “sound travels through the walls and is almost impossible to locate the source”; and (6) a May 27, 2009 “night manager report” stating that several residents had complained of noise “reportedly created by Mr. Ellis of unit 1208.”

Further, Ellis filed two responses to appellees’ no-evidence motion for summary judgment. Exhibits attached to those responses included documents titled “Notice of Lien” and “Notice of Assessment Lien Sale” pertaining to real estate owned by Ellis that was described as follows:

Unit 1208, Building B, of the Renaissance on Turtle Creek Condominium, and its appurtenant, undivided interest in and to the general and limited common elements of The Renaissance on Turtle Creek Condominium, a condominium regime in the City of Dallas, Dallas County, Texas, according to the Map and Condominium Declaration, recorded in Volume 202230, Page 6012, Condominium Records, Dallas County, Texas, as Amended by Amendment to Condominium Declarations Recorded in Volume 2003169, Page 49, Condominium Records, Dallas County, Texas.

In the final judgment of which Ellis complains, the trial court (1) granted appellees’ no-evidence motion for summary judgment and the Association’s traditional motion for summary judgment without specifying the grounds for its rulings; (2) ordered that the Association recover $13, 405.64 on its counterclaim; (3) awarded the Association attorney’s fees of $20, 000 for services rendered through the summary judgment, $5, 500 for services pertaining to foreclosure of Ellis’s unit, $30, 000 in the event of an unsuccessful appeal to the court of appeals, and $30, 000 if a petition to the supreme court is granted and the appeal to the supreme court is unsuccessful; and (4) ordered that the Association recover post-judgment interest on the sum of $13, 405.64 and attorney’s fees awarded. Additionally, the trial court stated in the judgment

The Court further ORDERS that [the Association] have foreclosure of its assessment liens on the following property known as 3225 Turtle Creek Blvd., Unit 1208, Dallas, Texas 75219, and which is more particularly described as:

Unit 1208, Building B, of the Renaissance on Turtle Creek Condominium, and its appurtenant, undivided interest in and to the general and limited common elements of The Renaissance on Turtle Creek Condominium, a condominium regime in the City of Dallas, Dallas County, Texas, according to the Map and Condominium Declaration, recorded in Volume 202230, Page 6012, Condominium Records, Dallas County, Texas, as Amended by Amendment to Condominium Declarations Recorded in Volume 2003169, Page 49, Condominium Records, Dallas County, Texas.

(emphasis original).

Ellis filed a “Second Amended Motion to Vacate, Modify, Correct, or Reform Judgment” in which he contended (1) material issues of fact exist “regarding the validity of fines and attempted payment of assessments” and (2) the award of attorney’s fees is unreasonable and/or based on legally insufficient evidence. That motion was denied by the trial court. This appeal timely followed.[4]

II. THE TRIAL COURT’S TRADITIONAL SUMMARY JUDGMENT

A. Standard of Review

The standard of review in a traditional summary judgment case is well established. See TEX. R. CIV. P. 166a(c); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 49–50 (Tex. App.—Dallas 2006, pet. denied). We review a trial court’s decision to grant a traditional summary judgment de novo. See, e.g., Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex. App.—Dallas 2011, pet. denied). The party moving for a traditional summary judgment has the burden to establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003); see also Affordable Motor Co. Inc., 351 S.W.3d at 519 (matter is conclusively established for summary judgment purposes if ordinary minds cannot differ on conclusion to be drawn from evidence). In reviewing a summary judgment, evidence favorable to the non-movant will be taken as true. Hackberry Creek, 205 S.W.3d at 50 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985)). Every reasonable inference in favor of the non-movant is allowed, and all doubts are resolved in its favor. Id. Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. Id. (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)). In our review, we cannot consider summary judgment evidence not presented to the trial court. See Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 492 (Tex. App.—Dallas 2013, no pet.); Hendee v. Dewhurst, 228 S.W.3d 354, 376 (Tex. App.—Austin 2007, pet. denied) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)). When, as here, a summary judgment does not state or specify the grounds upon which it relies, we affirm the judgment if any of the grounds presented in the summary judgment motion are meritorious. Crutcher, 410 S.W.3d at 492 (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

“A motion for summary judgment must itself expressly present the grounds upon which it is made and must stand or fall on these grounds alone.” Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex. App.—Dallas 2000, no pet.) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). “Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.” State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010); see Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). Further, “issues a non-movant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion.” McConnell, 858 S.W.2d at 341. With the exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Id. at 343; TEX. R. CIV. P. 166a(c); see also City of Lancaster v. Clopton, 246 S.W.3d 837, 839 (Tex. App.—Dallas 2008, no pet.) (constitutional issue in avoidance of summary judgment raised for first time in non- movant’s motion to modify or set aside summary judgment in trial court “did not bring the issue before the trial court and will not be considered by this Court”).

B. Analysis [5]

1. Unpaid Assessments and Fines

In his first issue, Ellis asserts the Association is not entitled to summary judgment on its counterclaim for unpaid assessments and fines in the amount $13, 405.64 because (1) the Association’s traditional motion for summary judgment did not contain “sufficient evidence” to support that counterclaim and (2) the evidence attached to Ellis’s response to the traditional motion for summary judgment[6] raised “genuine issues of material facts regarding whether the Association refused to accept his payments and whether the fines imposed against him are reasonable.” We address these arguments in turn.

We begin with Ellis’s challenge to the sufficiency of the evidence to support the Association’s counterclaim. Specifically, Ellis contends (1) “[be]cause the Declaration attached to Duane Bates’ affidavit is invalid due to a lack of signature from the property owner, the Association did not present sufficient evidence to show that it has the authority to levy assessments, impose fines, create a lien on property, or foreclose a lien, ” and (2) because Bates’s affidavit “does not show how he has personal knowledge of the alleged excessive noise, ” the Association’s traditional motion for summary judgment “does not contain sufficient evidence to show that the fines were valid.”

As to the Declaration attached to Bates’s affidavit, the record shows that Declaration is not signed by the property owner. According to Ellis, Bates’s statements respecting the Association’s powers are therefore “conclusory and without foundation.” Further, Ellis asserts that while a “subsequent execution” can “repair” a defect in a declaration in some cases and the property description in the judgment in this case indicates the Declaration was amended at some point, any such amendment cannot constitute a “repair” in this case because “the amended declaration is not included in or referenced by the Association” in its motion for summary judgment.

The Association responds that Ellis’s complaint respecting the Declaration is “waived on appeal” because it was not asserted in the trial court. Further, the Association argues (1) “the evidence regarding the forming and powers of the Association were not objected to in the trial court” (emphasis original) and (2) Ellis’s response to the Association’s traditional motion for summary judgment “admits the very thing which he now seeks to deny” (emphasis original) because Ellis states in his response that he “does not dispute the general rights of the HOA.”

The record shows Ellis did not raise the lack of signature as to the Declaration or any arguments pertaining to an “amended” Declaration in the trial court. On this record, we conclude Ellis’s complaint respecting the Declaration presents nothing for this Court’s review. See All Am. Siding Windows, Inc. v. Bank of Am., Nat’l Ass’n, 367 S.W.3d 490, 496 n.2 (Tex. App.—Texarkana 2012, pet. denied) (complaint of lack of signature on copy of agreement in question attached to affidavit as exhibit could not be asserted for first time on appeal).

Next, we address Ellis’s complaint that Bates’s affidavit “does not show how he has personal knowledge of the alleged excessive noise.” According to Ellis,

Duane Bates’ affidavit states that [Ellis] banged on his ceiling or committed other violations of the rules. However, he fails to show in his affidavit that he has any personal knowledge of the acts that are the basis of the fines. He merely shows that he has personal knowledge that the fines were imposed.

The Association argues that [Ellis] was bothering his upstairs neighbor, yet it includes no evidence from the neighbor that she heard any noises or that the noises that she did hear were coming from [Ellis's] unit. The person who would have personal knowledge of the violations did not sign an affidavit or enter any evidence. The only evidence is the affidavit of Duane Bates, which claims personal knowledge but does not show how he has personal knowledge.

Despite Bates’ conclusory statement that [Ellis] created excessive noise, the evidence that he uses to support his claim does not show that [Ellis] created excessive noise. Personal knowledge cannot merely be recited in an affidavit; it must be positively shown in order to support a motion for summary judgment. Because Bates did not show support for his conclusory assertion that [Ellis] created excessive noise, his affidavit is insufficient to show that [Ellis] violated any rules.

(citations omitted). In support of that argument, Ellis cites generally to pages four through six of Bates’s eight-page affidavit. Those pages contain assertions by Bates that Ellis “violated the Rules and Regulations” as described above and was notified in writing by Bates of each violation.

The Association responds that this complaint presents nothing for this Court’s review because an objection regarding an affiant’s lack of personal knowledge pertains to “a defect in the form of the affidavit” and is “waived” if not raised in the trial court. Further, the Association contends the undisputed summary judgment evidence, including Bates’s affidavit and the attached notices of violations, “established that the Association assessed fines based upon complaints to, and investigations by, the general manager of the Association.” Finally, the Association asserts that pursuant to section 202.004(a) of the Texas Property Code, it is entitled to a “presumption of reasonableness” respecting the assessment of the fines in question. See TEX. PROP.CODE ANN. § 202.004(a) (West 2007). Specifically, the Association contends “such fines were ‘presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary of [sic] authority was arbitrary, capricious, or discriminatory.’”

Section 202.004(a) provides in part “[a]n exercise of discretionary authority by a property owners’ association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.” Id. However, the record shows no presumption pursuant to section 202.004(a) was raised in the trial court. Therefore, we conclude the Association’s argument respecting a “presumption of reasonableness” pursuant to section 202.004(a) presents nothing for this Court’s review. See Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 279 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (declining to address argument on appeal respecting applicability of statutory presumption in property code pertaining to easements where argument was not raised in summary judgment motion or response); see also State Farm Lloyds, 315 S.W.3d at 532 (“Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.”); Travis, 830 S.W.2d at 100 (same).

As to Ellis’s complaint respecting Bates’s “personal knowledge, ” the record does not show that complaint was raised in the trial court. However, we need not address whether such complaint is precluded on appeal. To the extent that complaint is intended by Ellis to address the entire affidavit and attached exhibits, it lacks specificity and therefore presents nothing for this Court’s review. See French v. French, 385 S.W.3d 61, 68 (Tex. App.—Waco 2012, pet. denied) (complaint that summary judgment affidavit was conclusory did not specify portions of affidavit to which it pertained and thus presented nothing for appellate review). Alternatively, to the extent Ellis’s complaint specifically addresses Bates’s “assertion that “[Ellis] created excessive noise” on pages four through six of the affidavit, such assertion constitutes only a portion of the evidence in the record. In addition to that complained of assertion, Bates incorporated by reference the exhibits attached to his affidavit, including twelve notices sent to Ellis respecting the violations in question. As described above, those notices state that violations by Ellis were “witnessed” by residents and “associates” and “reported” by residents. Ellis did not object to that evidence in the trial court, nor does he specifically object to that evidence on appeal. Consequently, we conclude Ellis has not met his obligation to show Bates’s alleged lack of personal knowledge respecting the complained of assertion on pages four through six of the affidavit is material. See Choice Asset Mgmt., Inc. v. CIT Tech. Fin. Servs., No. 07-12-00304-CV, 2013 WL 5039340, at *1 (Tex. App.—Amarillo Sept. 11, 2013, no pet.) (mem. op.) (concluding appellant’s complaints respecting conclusory nature of certain utterances in summary judgment affidavit presented nothing for appellate review where appellant did not establish evidence complained of was material).

Next, we address Ellis’s contention that the evidence attached to his response to the traditional motion for summary judgment raised “genuine issues of material facts regarding whether the Association refused to accept his payments and whether the fines imposed against him are reasonable.”[7] As to the alleged refusal to accept payment, Ellis asserts “[i]f the Association actually did not accept Thomas Ellis’s payments when he tried to pay, then he is not required to pay the debt.” According to Ellis,

The Association claims that Thomas Ellis refused to pay his assessments. The Association claims that Mr. Ellis stopped payment on a check and could only pay in the future with a money order or cashier’s check; however, Mr. Ellis claims that his bank account had been canceled due to a security concern, and that the fee that he tried to pay came back.

(citations to record omitted). In support of those assertions, Ellis cites attachments to his response to the motion for traditional summary judgment, including (1) correspondence from Ellis to the Association in which Ellis informs the Association that a “security breach” recently occurred at his bank, inquires whether the Association’s records show certain payments to his account with the Association, and asks the Association to “verify what payments were actually received”; (2) written notices from the Association to Ellis informing him that his account is “currently outstanding due to repeated violation notices” and attempting to collect amounts owed; and (3) a November 10, 2010 letter from the Association to Ellis informing Ellis that a check he submitted to the Association “was returned for ‘Payment Stopped’” and “[o]nly funds in the form of cashiers check or money order will be accepted at this time.” Additionally, Ellis contends he “attempted to pay his assessments in person, ” but “the Association did not allow him to do so.” In support of that assertion, he cites his response to the traditional motion for summary judgment.

The Association argues (1) Ellis’s response to the traditional motion for summary judgment “is not summary judgment evidence” and (2) none of the evidence cited by Ellis raises a fact issue as to whether he “attempted to pay his assessments in person” and was not allowed to do so. Further, the Association contends Ellis’s other assertions quoted above, even if proven true, “would not raise a fact issue on refused acceptance” because they “simply reveal[] that Ellis had a problem paying the Association due to issues with his bank.”

Ellis’s argument in his summary judgment response does not constitute evidence and therefore cannot raise a fact issue. See Madeksho v. Abraham, Watkins, Nichols Friend, 57 S.W.3d 448, 455 (Tex. App.—Houston [14th Dist.] 2001, pet.denied). Further, we cannot agree with Ellis that the evidence described above shows he attempted to make payments that were not accepted by the Association.

As to Ellis’s contention that the evidence raised a genuine issue of material fact respecting “whether the fines imposed against him are reasonable, ” Ellis asserts he (1) argued in his response to the traditional motion for summary judgment that the fines were “bogus” and issued as a “means to harass and intimidate him” and (2) “provided evidence that the Association’s own security staff state that it is impossible to tell where noise originates.” In support of that argument, Ellis cites his response to the traditional motion for summary judgment and a September 1, 2009 incident report stating police responded to a call from Ellis complaining of noise in the unit above his and were told by the Association’s security personnel that “sound travels through the walls and is almost impossible to locate the source.”

The Association responds in part

Even taking Ellis’ unauthenticated documentation attached to the response as true for these purposes, it can hardly be argued that any of it raises a fact issue regarding the invalidity or unreasonableness of the fines assessed by the Association. At best, these documents support that there were in fact disputes involving Ellis, and that he was fined as a result.

We reconfirm, no fact issue was raised by Ellis’s arguments in his summary judgment response. See Madeksho, 57 S.W.3d at 455. Further, regardless of whether “sound travels through the walls and is almost impossible to locate the source, ” the record does not show that as to any of the alleged noise violations in question a determination of who committed the violation was made based solely on sound traveling through the walls. We conclude Ellis has identified no evidence in the record that he did not commit the violations in question or that the fines related to those violations were “unreasonable.”

We decide against Ellis on his first issue.

2. Attorney’s Fees

In general, the party seeking to recover attorney’s fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). Factors to be considered in determining the reasonableness of attorney’s fees include (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Anderson Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). However, evidence of each of the Arthur Andersen factors is not required to support an award of attorney’s fees. Arthur J. Gallagher Co. v. Dieterich, 270 S.W.3d 695, 706 (Tex. App.—Dallas 2008, no pet.).[8]

“[T]he affidavit of the attorney representing a claimant constitutes expert testimony that will support an award of attorney’s fees in a summary judgment proceeding.” Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 513 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Further, the trial court may award attorney’s fees as a matter of law “where the testimony of an interested witness is not contradicted by any other witness, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon.” Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (noting this is “especially true when the opposing party has the means and opportunity of disproving the testimony or evidence and fails to do so”); accord Jarvis v. Roncanville Corp., 298 S.W.3d 305, 319 (Tex. App.—Dallas 2009, pet. denied); see TEX. R. CIV. P.166a(c) (summary judgment “may be based on uncontroverted testimonial evidence of interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted”).

In his second issue, Ellis challenges the trial court’s award of attorney’s fees on the grounds that Isbell’s affidavit is insufficient (1) to support the Association’s claim for “$20, 000 in attorney’s fees for bringing a counterclaim for foreclosure” because “it is controverted by the record, it contains inconsistencies, and it is incredible, unreasonable, and questionable”; (2) “to support an award of attorney’s fees as a matter of law because it is conclusory as to reasonableness without offering sufficient evidence of the Arthur Anderson factors”; and (3) “to support an award of attorney’s fees as a matter of law because it does not address the qualifications, billing rate, or number of hours worked of the paralegals on the case nor the nature of their work.”

The Association responds (1) on appeal, Ellis is limited to attacking the legal sufficiency of the evidence to support the attorney’s fees because he failed to preserve any other arguments respecting attorney’s fees for this Court’s review and (2) “undisputed summary judgment evidence which was neither contradicted nor even attacked in the trial court” supports the Association’s claim for reasonable and necessary attorney’s fees in the amounts awarded by the trial court.

The record does not show Ellis’s challenges respecting attorney’s fees were asserted in his response to the traditional motion for summary judgment in the trial court. See McConnell, 858 S.W.2d at 343; TEX. R. CIV. P. 166a(c). However, to the extent Ellis’s arguments can be construed to assert that the evidence in the record is legally insufficient to support the attorney’s fees awarded, we consider those challenges. See McConnell, 858 S.W.2d at 343.

First, Ellis contends “Isbell’s affidavit was contradicted by appellee’s own arguments.” In support of that contention, Ellis (1) cites assertions in the Association’s motion for summary judgment and (2) quotes a statement by this Court in another case that “[i]f the record contains evidence that contradicts or controverts the interested witness’s testimony, the affidavit is insufficient to sustain a summary judgment.” Bartz v. Randall, 396 S.W.3d 647, 651 (Tex. App.—Dallas 2013, no pet.). Ellis does not explain, and the record does not show, how the assertions in the Association’s motion for summary judgment cited by Ellis constitute “evidence” that contradicts Isbell’s testimony. See id.

Additionally, Ellis argues “[t]he record offers circumstances that show that Mr. Isbell’s affidavit is unreasonable, incredible, and questionable, and raises a fact issue.” Specifically, Ellis asserts in his reply brief in this Court that the Association “argued in the trial court the contradictory positions that: (1) Ellis’s claim for filing a fraudulent lien is a defense to the Association’s counterclaim; and (2) it was reasonable for an attorney to need 73 hours, segregated from the work done on defense, to bring the counterclaim.” Ellis contends “[t]he two causes are either the same thing or they aren’t.” Further, Ellis asserts (1) the record shows he filed a motion to compel production of discovery against the Association more than four months before the Association filed its counterclaim and (2) “[t]he motion to compel includes requests for production of documents and interrogatories that provide the evidence that the Association uses as evidence in its motion for summary judgment with the exclusion of the affidavit for attorney’s fees.” Ellis contends Isbell “could not have charged the Association to engage in ‘extensive written discovery’ ‘segregated from . . . [and] not include[ing] the . . . fees incurred by the Association and its co-defendant to defend the suit filed by the Plaintiff, ‘ because discovery requests pertinent to the elements of the Association’s counterclaim were exchanged as part of the Association’s defense, not part of the counterclaim.” According to Ellis, those “contradictory assertions” raise a fact issue as to “reasonable attorney’s fees.” In support of his argument, Ellis cites Isbell’s affidavit; footnote number one of the Association’s motion for summary judgment; an April 7, 2011 motion to compel filed by Ellis respecting interrogatories and requests for production served by him on the Association; and the Association’s responses and objections to Ellis’s interrogatories and requests for production.

The Association contends Ellis’s argument constitutes an objection to the failure to segregate recoverable attorney’s fees from non-recoverable attorney’s fees and was waived because it was not raised in the trial court. See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (“if no one objects to the fact that the attorney’s fees are not segregated as to specific claims, then the objection is waived”). In his reply brief in this Court, Ellis disputes that characterization of his argument. However, even assuming without deciding that Ellis’s argument differs from an objection to failure to segregate attorney’s fees and can be raised on appeal, we disagree with Ellis’s position that “circumstances” in the record preclude a conclusion that Isbell’s affidavit constitutes legally sufficient evidence to support the trial court’s award of attorney’s fees. As described above, the Association stated in footnote number one in its traditional motion for summary judgment that it filed a no-evidence motion for summary judgment on Ellis’s fraudulent lien claims against it and that Ellis’s claims “are, effectively, nothing more than an illusory defense to payment of the Association’s regular monthly dues assessments, dressed up as an affirmative claim for relief, in order to avoid liability for his own actions and a reckoning of his obligations to the Association.” On its face, that statement does not constitute an assertion that “the two causes” are the “same thing.” See Bartz, 396 S.W.3d at 651–52 (concluding circumstances in record did not show contradiction). Further, the record does not show how the fact that the Association responded to Ellis’s “discovery requests pertinent to the elements of the Association’s counterclaim” as part of “the Association’s defense” against Ellis’s fraudulent lien claims contradicts Isbell’s statement in his affidavit that “attorneys and paralegals at my firm, including myself, have done, have caused to be done, or will do” specific tasks, including “extensive written discovery, ” in connection with the Association’s counterclaim. See id. On this record, we cannot agree with Ellis that “circumstances” show Isbell’s affidavit is “unreasonable, incredible, and questionable.”

Second, we consider Ellis’s contention that Isbell’s affidavit is “conclusory as to reasonableness without offering sufficient evidence of the Arthur Anderson factors.” “A conclusory statement is one that does not provide the underlying facts to support the conclusion.” Thompson, 127 S.W.3d at 450; Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.— Houston [14th Dist.] 2000, pet. denied). In support of his contention that Isbell’s affidavit is “conclusory as to reasonableness, ” Ellis cites Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999). Burrow involved affidavits by several attorneys in support of another attorney’s motion for summary judgment on misconduct claims filed against him by a former client. Id. The attorneys’ affidavits were offered to establish as a matter of law that the client did not suffer actual damages and thus the trial court’s summary judgment dismissing the client’s claims on that basis was proper. Id. The supreme court concluded the attorney affiants “have substantial credentials to render expert opinions on issues of attorney practice, but their affidavits . . . offer no basis for the opinions stated” as to whether the client suffered damages as a result of the alleged misconduct. Id. at 236–37. Burrow did not involve the issue of whether an attorney’s affidavit was conclusory or legally insufficient respecting the reasonableness of fees, nor did it involve an analysis respecting the Arthur Anderson factors. See id. Therefore, Burrow is inapposite.

Additionally, Ellis argues in his reply brief in this Court that Isbell (1) failed to adequately address the Arthur Anderson factor respecting “the experience, reputation, and ability of the lawyer or lawyers performing the services” because Isbell “does not state that he spent 73 hours” or “that anyone spent 73 hours, ” “does not state the $275 is a reasonable hourly rate, ” and “does not say who is being billed at that rate”; and (2) failed to address certain other Arthur Anderson factors. However, evidence of each of the Arthur Andersen factors is not required to support an award of attorney’s fees. See Arthur J. Gallagher Co., 270 S.W.3d at 706.

The record shows Isbell testified in his affidavit as to his level of experience, his personal knowledge of the facts stated therein, the type of work he and others performed on the case, and the amount of “reasonable and necessary fees” based upon his hourly rate and the time required. We cannot agree with Ellis that Isbell’s affidavit is conclusory. See Dodd v. Savino, No. 14–12– 00555–CV, 2014 WL 242881, at *13 (Tex. App.—Houston [14th Dist.] Jan. 16, 2014, no pet.) (rejecting argument that attorney’s affidavit testimony was conclusory where attorney attested she is duly licensed attorney with personal knowledge of work performed and indicated type of work performed). Further, based on the same testimony of Isbell, we disagree with Ellis that Isbell’s affidavit was legally insufficient to support the attorney’s fees awarded. See Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 518 (Tex. 1999); Arthur J. Gallagher Co., 270 S.W.3d at 706; Dodd, 2014 WL 242881, at *13.

Third, Ellis contends Isbell’s affidavit is legally insufficient to support an award of attorney’s fees “because it does not address the qualifications, billing rate, or number of hours worked of the paralegals on the case nor the nature of their work.” In support of that contention, Ellis cites case law addressing the requirements for recovery of attorney’s fees for work performed by legal assistants. Additionally, Ellis asserts “[Isbell] claims that ‘attorneys and paralegals at my firm, including myself, ‘ have worked on the case.”

However, the record shows Isbell’s affidavit contained a list of specific tasks that “attorneys and paralegals at my firm, including myself, have done, have caused to be done, or will do . . . in connection with the Association’s Counterclaim.” Further, Isbell’s affidavit, on its face, does not show that any of the “reasonable and necessary” fees described by him pertain to work performed by legal assistants. Consequently, we cannot agree with Ellis’s position that Isbell’s affidavit is legally insufficient due to a failure to address the matters described by Ellis pertaining to paralegals. Cf. TEX. R. CIV. P. 166a(c) (summary judgment “may be based on uncontroverted testimonial evidence of interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted”).

We decide against Ellis on his second issue.

3. Foreclosure

In his third issue, Ellis contends “[t]he Association is not entitled to foreclosure on the property described in the order because it did not describe the property in its motion for summary judgment.” Ellis’s entire argument as to this issue consists of the following:

The Association does not include any property description in its motion for summary judgment, yet there is a property description in the order granting summary judgment. The motion for traditional summary judgment does not include the Notices of Lien which it claims to be foreclosing. The order can only grant what the Association requested, and because there is no property description, the Association is not entitled to judgment for foreclosure.

In support of his argument, Ellis cites a single authority, Westbrook Construction Co., Inc. v. Fidelity National Bank of Dallas, 813 S.W.2d 752, 754–55 (Tex. App.—Fort Worth 1991, writ denied). In the cited portion of that opinion, the court states that a motion for summary judgment “must stand or fall on the grounds it specifically and expressly sets forth” and “a summary judgment cannot be sustained on a ground not specifically set forth in the motion.” See id.

The Association responds that Ellis did not raise this argument in the trial court. Further, the Association asserts that, to the extent Ellis is arguing the property is incorrectly described,

“[h]e could not legitimately do so, for the summary judgment evidence conclusively established that Ellis owned Unit 1208, which is the very unit described in the order granting summary judgment.” In its traditional motion for summary judgment, the Association (1) stated Ellis “is the owner of Unit 1208, a condominium unit in The Renaissance on Turtle Creek Condominium . . . located at 3225 Turtle Creek Boulevard, Dallas, Texas 75219″ and (2) sought foreclosure of the Association’s “lien against the Plaintiff’s unit.” The trial court’s judgment states in part

The Court further ORDERS that Defendant The Renaissance on Turtle Creek Condominium Association, Inc. have foreclosure of its assessment liens on the following property known as 3225 Turtle Creek Blvd., Unit 1208, Dallas, Texas 75219, and which is more particularly described as:

Unit 1208, Building B, of the Renaissance on Turtle Creek Condominium, and its appurtenant, undivided interest in and to the general and limited common elements of The Renaissance on Turtle Creek Condominium, a condominium regime in the City of Dallas, Dallas County, Texas, according to the Map and Condominium Declaration, recorded in Volume 202230, Page 6012, Condominium Records, Dallas County, Texas, as Amended by Amendment to Condominium Declarations Recorded in Volume 2003169, Page 49, Condominium Records, Dallas County, Texas.

(emphasis original).

The record shows the judgment described the property exactly as it was described in the motion for summary judgment and then, additionally, included a more particular description of the same property. On this record, we cannot conclude summary judgment was granted on a ground that was not specifically set forth in the motion. See id.

We decide against Ellis on his third issue.

III. CONCLUSION

We decide Ellis’s three issues against him. Additionally, we deny (1) Ellis’s December 17, 2013 “Motion for Leave to File Amended Brief” and (2) the Association’s January 23, 2014 “Motion to Strike or Alternatively, Disregard Appellant’s Notice to the Court.”

The trial court’s judgment is affirmed.

JUDGMENT

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees THE RENAISSANCE ON TURTLE CREEK CONDOMINIUM ASSOCIATION, INC. AND PREMIER COMMUNITIES MANAGEMENT COMPANY, INC. recover their costs of this appeal and the full amount of the trial court’s judgment from appellant THOMAS J. ELLIS and from any supersedeas bond or cash deposit in lieu of supersedeas bond. After the judgment and all costs have been paid, we DIRECT the clerk of the trial court to release the balance, if any, of any cash deposit in lieu of supersedeas bond to the person who made the deposit.

Judgment entered.

———

Article source: http://www.texaslawyer.com/home/id=1202647962644/Ellis+v+Renaissance+on+Turtle+Creek+Condominium+Association+Inc%3Fmcode=1202615269686&curindex=2

City trying to seize Detroit City Council President Pro Tem’s former home

(WXYZ) – Detroit’s City Council President Pro Tem is accused of stripping a home that he lost as part of a foreclosure, and now that home is being targeted by the Mayor as part of his war on blight. 

“When you leave your house abandoned it is a nuisance to the neighborhood,” said Detroit Mayor Mike Duggan on April 9, 2013.  That’s the day Duggan rolled out his aggressive new plan to battle blight in the Marygrove Community on Detroit’s West Side. 

But during that big announcement, one city leader was noticeably not in attendance.

Council President Pro Tem George Cushingberry Jr. did not give Duggan’s team a reason for his absence, but perhaps his former house on Marygrove Drive kept him away.

Cushingberry and his wife used to live in the brick home, until they walked away from the property after a foreclosure in 2013.

The house is now one of 79 vacant and blighted homes in the Marygrove Community that the Detroit Land Bank is trying to seize.

Also, Cushingberry’s former lender is suing him, accusing the council president pro tem of stripping the home of its kitchen cabinets and fixtures and causing more than $56,000 in damage.

Cushingberry has been dodging questions about his law practice and his controversial January traffic stop ever since he took office. 

On Monday, his lawyer, Todd Perkins, told 7 Action News that Cushingberry did not trash the Marygrove house.

“I can’t tell you what specifically was taken, but I know that the items that were taken, they were his personal items and things that he took from the home.  But he did not, and I would make a hard stand on the fact that he did not leave that house in the condition that it’s in today,” Perkins told 7 Action News Investigator Heather Catallo.
 
Perkins says the home was vandalized while it was bank-owned.

“It’s a systemic problem we have in the city where these miscreants run into homes and they take what they want out of properties that are left vacant. Whether they’re secure or not – they’ll break into them,” said Perkins.

“When he left there was a lot of stuff, trash, lot of stuff that was in the garage that they had cleaned out,” said Phynnell London, who lives and works in the Marygrove neighborhood.  He says he’s seen the new owner working hard to clean up the property.

“They’ve been coming through here every other day, doing what they’re supposed to be doing to the house,” said London.

City officials now say the new owner has been in touch with the Land Bank to let them know that she is working on the home and it’s no longer vacant.  That means it could ultimately be taken off the list of homes that the Land Bank is threatening to seize.

Cushingberry is also being sued for allegedly stripping and trashing a second property in the city, a home on Cherrylawn.

Lawyers for both sides will be back in court next month.

 

Article source: http://www.wxyz.com/news/city-trying-to-seize-detroit-city-council-president-pro-tems-former-home

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    Cushingberry home

    Detroit A credit union is suing the City Councils president pro tem on claims he willfully and maliciously damaged his foreclosed home, a property thats now being targeted as part of Mayor Mike Duggans anti-blight effort.

    The Public Service Credit Union is seeking more than $56,000 from George Cushingberry Jr. and his wife, Maria Drew Cushingberry, on allegations the pair significantly damaged a home on Marygrove Street and removed its kitchen cabinets and fixtures.

    The couples attorney, Todd Russell Perkins, denied allegations of damage. They removed only items that belonged to them, nothing more, he said.

    They in no way vandalized the property, said Perkins, noting several break-ins were reported at the home after the couple moved. Its something that generally happens in Detroit when someone leaves out of the home, and nobody is there to watch it. That home is a sitting duck.

    Perkins called the timing of the incident unfortunate, claiming scrutiny of the newly elected councilman has been unfair and media made.

    The foreclosed home, no longer owned by Cushingberry, was among the first properties in the city to receive a warning of legal action as part of a crackdown unveiled by Duggan to improve city neighborhoods.

    Earlier this month, Duggan kicked off his neighborhood rebuilding program in the Marygrove area, where owners of abandoned homes face being sued and losing the properties under nuisance abatement laws if they dont reach agreements with the Detroit Land Bank Authority to fix them.

    Of the 79 vacant homes that received notices, 28 property owners contacted the land bank within the 72 hours provided to express their willingness to repair the homes, Duggans spokesman John Roach said.

    On Thursday, the land bank filed lawsuits against 25 others in Wayne County Circuit Court. The current Marygrove property owner was not listed as a defendant.

    Houses deemed salvageable are expected to be auctioned by the land bank, and those who buy the homes will be offered aid in the form of forgivable bank loans.

    The February lawsuit says Cushingberry defaulted on a $242,000 loan extended in 2006 for the property on Marygrove Street, one of dozens of blighted homes in a 16-block radius issued a nuisance notice by the Detroit Land Bank Authority.

    ‘I am very concerned’

    Marygrove Community Association President Herbert Russell said he worked with the city to identify the vacant properties targeted in the effort, including the home that belonged to Cushingberry.

    I am very concerned about all the houses in our neighborhood and all the young children who have to walk past these houses, he said, noting the former Cushingberry home is just one of the properties that people have walked away from.

    We have a beautiful area and are struggling very hard to keep it up, Russell added about the association, which oversees nine blocks from east to west and about three blocks north to south. It becomes unbearable sometimes.

    Foreclosure in 2013

    Records indicate Cushingberry lost the house to foreclosure in January 2013. Its not clear how much was owed when the property was foreclosed on, but more than $168,000 was due when a legal notice was published in December 2012.

    The property sold for $96,000 at a sheriffs sale Jan. 10, 2013. This past February, it was sold to Christina Brown for $34,900, deed records say. A number for Brown is not publicly listed.

    Cushingberry declined to talk about the home or his bankruptcy case, which he filed in October 2011. A statement of intent filed with the court in fall 2011 said he would retain the Marygrove home and continue making payments.

    The credit union in its filing also says the councilman and his wife defaulted on a separate loan it extended for a property on Cherrylawn Street.

    The credit union is seeking more than $81,000 total for alleged damage at both properties. The suit alleges the Cherrylawn home had also fallen into disrepair and was missing a water heater, furnace, basement and kitchen plumbing and a water meter.

    Depositions to be next step

    Perkins said depositions will be the next step in the case to get down to what actually happened.

    I believe that they (the Cushingberrys) will be vindicated, he said.

    Cushingberry, a councilman for City Council District 2, initially made news days after taking office over a controversial traffic stop involving alcohol and marijuana.

    Last month, the 61-year-old councilman agreed to pay $95 to settle a civil infraction stemming from the Jan. 7 stop.

    Detroit Police Chief James Craig has claimed Cushingberry twice eluded officers during the incident but was not arrested or given a field sobriety test. Following an internal investigation into a supervisors handling of the incident, Craig concluded Cushingberry was given preferential treatment.

    Cushingberry denied the claims and any wrongdoing.

    Article source: http://www.detroitnews.com/article/20140420/METRO01/304200030/