|
September 2010
LETTERS
What Part of NO does the CLRC NOT Understand?
Rancho
Santa Margarita, CA - 09-03-2010
TO:
California
Law Revision Commission
4000
Middlefield Road, Room D-1
Palo Alto, California 94303-4739
DATE:
September
1, 2010
Attention: Mr. Hebert
THE
TEMPLE OF BLAME
AND
THE
NOT-SO-SIMPLE
SIMPLIFICATION
OF,
AMONG
OTHER THINGS:
IDENTITY
THEFT
Re: Statutory
Clarification and Simplification of CID Law
Table
of Contents
I. Misuse
and Abuse of Titleholder Personal Information
II. Management
Companies and Boards Merely "Make it Up" as
They Go Along
III. Homeowner
Association Corruption Continues Unabated
Dear
California Law Revision Commission:
Apparently
Mr. Hebert's department, is of the belief that my
initial letter to the California Law Revision
Commission regarding this bogus make-work project of
theirs, was "generic" and not
"specific." Hard
to believe given I have been writing to the CLRC for
some time now with SPECIFICS. Never
mind, that I have made, and paid for several Freedom
of Information Act and California Public Records Act
documents, a story worthy of national news, but saved
for another time. All
titleholders with assets and property located in a
California Common Interest Development, subject to
boards of directors and management companies, and with
deed-restricted titles should make it a monthly, if
not yearly, goal to obtain these records from the CLRC
and READ and STUDY them. They are INTERESTING to anyone who is
subject to the whims of the CLRC's decision making
powers over owners. The CLRC's telephone bills are also
public record, they are in my opinion, far more
salacious than some of the documents as we have
recently learned by the community of Bell experience,
can be easily manipulated and omitted, "Oops,
that wasn't provided?"
I
continue to vehemently oppose this stupid REWRITE of
the Davis-Stirling Act bogus project of yours as a
colossal waste of taxpayer funds and as a project that
will have a substantial financial impact on
titleholders and prejudice titleholders of this type
of property ownership for decades to come.[1]
The
following example is an omission in your multi-million
dollar make-work project, but then it is obvious, the
goal of your project is not to protect the homeowners.
In
February 2000, I had introduced into the California
legislature, Assembly Bill 2031 that, in a much
simpler and more precise form, required boards to
maintain records for a reasonable period and to allow
homeowners to inspect the books and records. A
homeowner who was damaged by a board's failure to keep
the records could sue for up to $5,000, the
jurisdictional limit of small claims court. Although
passed by the California Assembly by a vote of 75–1,
it failed to pass the Senate Judiciary Committee.
At
the time I wrote that bill there were no per se laws mandating
the safekeeping of homeowner association books,
records, and documents, nor were owners able to access
such records—notwithstanding laws making destruction
of documents, accounts and records a crime, such
accountings were routinely destroyed or conveniently
missing—as of the date of the publication of my book
titled Common Interest
Developments--Homeowners Guide (Thompson-West
2009),[2] and
as of the date of this correspondence to the
California Law Revision Commission, nothing has changed that. The
destruction of these documents happen on a daily
basis.
Letters
I receive, confirm that destruction of records and
association-related "evidence" including but
not limited to computer hard drives, are happening at
an alarming rate. Actions like
these are meant to protect the actions of recalcitrant
boards and their aiders and abettors.
MISUSE AND ABUSE OF
TITLEHOLDER PERSONAL INFORMATION
Letters
documenting and confirming misuse and abuse of
titleholders' personal information is even more
alarming. I receive these
letters often in response to my books, Villa
Appalling! Destroying the Myth of Affordable Community
Living, and Common
Interest Developments--Homeowners Guide, and
column in the Los Angeles Times, titled Associations.
To
that end, there are no per
se laws that hold management company owners
and their personnel AND board directors responsible
for breach of privacy and/or the dissemination and/or
abuse or misuse of titleholder information.
Anyone
whose personal identifying information—including
something as mundane as a letter they wrote to the
board, or anything with an account number and/or
signature on a check—that has been obtained by a
homeowners association, its third party vendors,
and/or boards of directors, are unequivocally at risk for
identity theft.
Simply,
these titleholders are at the mercy of individuals
they may not know, have no reason to trust, have no
"duty-relationship" with, and for all
intents and purposes cannot reach or speak to
directly. And,
even if they could pass the association-attorney
barricades, no one in an association-related
environment takes accountability for something that
goes wrong, especially misuse and/or abuse of
titleholder documents and personal information.
Assuming arguendo that "someone"
"somewhere" in the association environment
decides to take responsibility for these documents,
that person becomes dispensable, or moves, or gets
fired, or sells his property and the revolving door
starts all over again.
In
a recent case where a management company and its
employees attempted to destroy one homeowner who was
effectively vocal against them, it made concerted
communications with the person's place of business,
his/her employer, forwarded documents it had
accumulated in its files over the years, and pummeled
the employer (and the community) with falsehoods about
the owner in order to have him/her fired and deplete
his/her life savings attempting to defend him or
herself. All this was in an attempt to turn
the community against this person and to have him/her
removed off the board of directors so the management
company's illicit actions could continue without
question. This
special brand of torture is reserved only for those
who own in Common Interest Developments with Homeowner
Association boards because owners' hands are tied in
protecting themselves, their assets, and their quality
of life. The
owners' only watchdog (for lack of a better word) is
their board. Pathetic, but
true. Without
the owner's personal information at the ready, and
with laws prohibiting and penalizing this kind of
behavior, these vendors and boards would not have been
able to accomplish their wicked means.
Seniors
are particularly vulnerable in this arena, especially
in those developments requiring proof of funds, bank
account records, automatic debit information,
accounting documents, trust documents, mortgage
documents, contracts, stocks and bonds statements,
from these owners. While
there are no statutory requirements for titleholders
to provide a majority of these documents, some
developments have over-required documents that they
decide they want. Homeowners do not know that these documents
don't have to be and shouldn't be provided, and
fearing retribution or fines and penalties, they
merely hand them over. Homeowner
association boards and/or their third party vendor
management companies provide no protection or
documentation in return that substantiates their
custody and control, let alone safeguarding of said
documents, and rarely do homeowners know to ask for a
signatory receipt of the information they are blindly
handing over to "someone."
All
these documents are retained and accessed
indiscriminately by temporary personnel, management
company employees, board directors, and often times
copied over and over and circulated among a myriad of
individuals—without notice to the titleholder. These
documents live in perpetuity. Each successive board for decades
will be able to access and read even a deceased past
owner's so-called "file" personal
identifying information and all. Make no mistake, the
association is certain not to leave a paper trail,
even if a file does exist it may "never" be
found. Some
"honor system!"
Unbeknownst
to the homeowner, their voluntarily-provided documents
can and will be used against them in a court of law if
and when that owner is subject to a lawsuit with their
association or management company. Once the Buyer
provides these documents, all they have is the board
or management company's "word" that it is in
a "file." There are no
written assurances as to the safekeeping of said
documents and no admonition of their potential for
use. Names
of individuals who will have access to them are also
not provided. This
revolving door of access to an individual's personal
documents is a risk to the titleholder, but
especially to Seniors.
Owners
are unaware that every letter
they send to their boards—as casual as that might
be—are fodder for lawsuits where that simple letter
is used as evidence against that
owner and possibly others. No
warning about that in the California statutes. Yet, all owners are supposedly,
automatically vested with that knowledge, the
knowledge of laws they have no clue exist. No wonder
boards and their hot shot attorneys encourage
unsuspecting owners to "put it in writing"
or "write the board" acting as if that will
help solve their problems. Little
do they know of the nightmare legal trap they are
walking into. These
same homeowners try endlessly to view association
books and documents and are instead sent on a hike off
a cliff, while they naively continue to
"comply" with writing their boards thinking
they are doing the right thing. If
they only knew!
The
majority of homeowner associations have relatively
few, if any, protection in place for
owners/titleholders that would prevent the
dissemination (let alone misuse)
of any information obtained by the association and/or
its agents. By default, the board's response to such
breaches of privacy is, predictably, "deny, deny,
deny." Presently,
nothing per se prevents such
dissemination of an owner's identifying information
collected on behalf of the association. In its failure
to provide practical, explicit, and meaningful
remedies for owners before they become victims (no
thanks to the California Law Revision Commission), the
legislature leaves these owners to rely on an
unacceptable "honor system."
Laws
do however, threaten to prosecute OWNERS for a twisted
sense of misuse of certain association-related
information. (How is it
that the industry lobbyists are able to protect all
their skewed interests, but nothing protects the
owners who are responsible for funding this fiasco.) Not all boards and
their vendors are honorable. That owners and their
information are at the mercy of their association —
and worse — its third party vendors who are more
often than not UNACCOUNTABLE, grotesquely understates
the consequences for victims, who often are faced with
financial constraints, having to spend time and money
that is rarely, if ever recoverable to fully
investigate and pursue a viable cause of action. I might add, that so-called right to
bring a cause of action was substantially diminished
by the California Law Revision Commission when it took
away the owner's right to directly sue in an attempt
to protect their interests, instead creating a maze of
diversionary delays such as "write the
board" traps, "meet and confer" traps,
"notice to sue" traps,
"arbitration" traps and so on.
Given
the lax nature of homeowners associations in general,
it is no wonder such entities are a target for
"data miners." California's legislature has
vastly ignored the unreliability of those with custody
and control over the treasure trove of member
information and have chosen instead to concentrate on
conciliatory methods for resolving rules and
operations disputes. Again, that maze of traps and
diversions preventing titleholders from protecting
their assets and from taking proactive steps to
protect their data and other information specific to
their property and themselves.
Not
only is the dissemination of owner information a
problem, so too, is the association's destruction of
documents in anticipation of litigation or discovery
demands. Since
the board and association typically retains custody
and control of all books, records, and documents,
"anything goes." With no codified policy for
association document destruction (let alone retention)
many documents are improperly destroyed or are
duplicates of copies of documents. With no meaningful "document
retention" statutes governing homeowner
associations, this problem will not solve itself.
While
the association may—not—shall,
withhold or redact information from the association
records[3] where
the "release of the information is reasonably
likely to lead to identity theft,"[4]they
are under no per se statutory duty to do so. For
the purposes of Civil Code Section 1365.2,
"identity theft" means the
"unauthorized use of another person's personal
identifying information to obtain credit, goods,
services, money, or property." Examples of
information that may be withheld or redacted pursuant
to Civil Code Section 1365.2(d) include bank account
numbers of members or vendors, social security or tax
identification numbers, and check, stock, and credit
card numbers."[5]
While
the association may—not—shall,
withhold or redact information from the association
records[6] because
the information contains[7] any
"person's personal identification information,
including, without limitation, social security number,
tax identification number, driver's license number,
credit card account numbers, bank account number, and
bank routing number,"[8] there are no statutory penalties
for failure to do so.
The
word "may" is neither subtle nor
insignificant, because under Evidence Code Section 11,
the term "shall" is mandatory and term
"may" is permissive. While
camouflaging the detrimental impact of such laws on
titleholders, the California Law Revision Commission's
Simplification and Clarification project is rife with
subtleties similar to that example.
There
also appears to be a growing trend among homeowner
associations, boards of directors, and third party
vendors and agents, in "requiring"
titleholders, owners, residents, renters, and others,
to supply the association with their Social Security
numbers and other ancillary information that they
should not be privy to.
Where's
the protection for titleholders who have sold their
units but all their personal information stays behind? Where's
the protection for Buyers who are forced to provide
information to the association or its management
company but have no idea what happens to it once they
do that and have no protections for that information? Where
are the safeguards from the association to the
titleholders that the management company will not have
custody and control of the owners personal information
and writings? There
are no laws requiring that management company owners
and their personnel be bonded. There
are no duties flowing from the management company to
the individual titleholders. Yet,
too many boards REQUIRE that owners communicate with
these third party venders INSTEAD of directly with the
board. The
BOARD has a duty to the owners, not the management
company. The
board cannot delegate its duties to a management
company, but without engaging in an assortment of
endless hoops, owners are powerless to stop actions
like these.
MANAGEMENT COMPANIES AND
BOARDS
MERELY "MAKE IT UP"
AS THEY GO ALONG
I
am receiving so many letters from owners complaining
that their association's management company makes up a
rule and owners are blindly expected to follow it as
their boards turns a deaf ear. Too many
owners are unaware that rules cannot be made up on the
fly, and they cannot be made up unilaterally by a
third party vendor. Yet this is happening. Because
their are no penalties for management company owners
and their employees, this practice continues. So
too are management companies becoming aiders and
abettors to boards that sign their paychecks. Too
many boards have become overly reliant on these high
school graduates with self-certification or industry
standard classes (whatever THAT means) allowing
themselves to be given a "designation" or
"title" that looks important. That
designation or title is not a law license, yet too
many management companies are using their designation
or trumped up titles to engage in the unauthorized
practice of law, advising boards on what to do and how
to do it. When owners confront these third
party vendors on their actions, predictably they are
met with "ask your board." Owners are paying a high price for
actions like these and the interference of third party
vendors.
HOMEOWNER ASSOCIATION
CORRUPTION CONTINUES UNABATED
The
upshot of this and more, is that the fees keep rising
for the titleholders as they are the bank account for
these out of control homeowner associations. As the corruption in homeowner
associations continues unabated, owners are left
asking the same questions they did when the California
Law Revision Commission first Velcroed itself onto the
CID meal ticket about a decade ago: Where are the penalties against
boards and management companies and where are the
protections for the titleholders?
Thank
you for your time.
Very
truly yours,
/s/
Donie
Vanitzian, J.D., Arbitrator
Post
Office Box 10490
Marina del Rey, California 90295
EDITOR'S NOTES:
1.
Click on link below to view original letter sent to
the CLRC by Ms Vanitzian, deemed to be
"vague" by the CLRC: THE TEMPLE OF BLAME AND THE HOA ATTORNEYS FULL EMPLOYMENT ACT
2. Click on links below to read typical letters in support of Ms. Vanitizian's efforts - what is vague to the CLRC appears to be very clear
-
The Recalcitrant Parasitic California Law Revision Commission Redux
-
The Recalcitrant Parasitic California Law Revision Commission
3. See below to view letter sent to Mr. Hebert for comment
4. Conclusion: "Vaguess" in this case, seems to be a barometer of support for the CID industry - that is, the more vague the CLRC thinks the comments are, the more it supports the CID industry
| Letter Sent to CLRC's Mr. Hebert for Comment - said he would after receipt of letter - did not comment |
| The Temple of Blame & the HOA Attorneys Full Employment Act |
|
|
|||
| RSS Feeds | Buzzzzz | ||||||
|
|
|
|
|
|
[1] As
a matter of note, expunging the term "titleholder"
from the statutes and replacing it with the generic benign
word "members" is just the start of further
stripping owners of land and of their rights.
[2] D.
Vanitzian, Common Interest
Developments--Homeowners Guide (Thompson-West, 2009). Author
note: As
I am the sole copyright holder of this book, there are no fair
use violations.
[3] Civil
Code Section 1365.2(d)(1).
[4] Civil
Code Section 1365.2(d)(1)(A).
[5] Civil
Code Section 1365.2(d)(1)(A), Civil Code Section 1365.2(a)(2)
(for the purpose Civil Code Section 1365.2, "enhanced
association records" means invoices, receipts and
canceled checks for payments made by the association, purchase
orders approved by the association, credit card statements for
credit cards issued in the name of the association, statements
for services rendered, and reimbursement requests submitted to
the association, provided that the person submitting the
reimbursement request shall be solely responsible for removing
all personal identification information from the request).
[6] Civil
Code Section 1365.2(d)(1).
[7] Civil
Code Section 1365.2(d)(1)(E).
[8] Civil
Code Section 1365.2(d)(1)(E)(iii), Civil Code Section
1365.2(a)(2) (for the purpose Civil Code Section 1365.2,
“enhanced association records” means invoices, receipts
and canceled checks for payments made by the association,
purchase orders approved by the association, credit card
statements for credit cards issued in the name of the
association, statements for services rendered, and
reimbursement requests submitted to the association, provided
that the person submitting the reimbursement request shall be
solely responsible for removing all personal identification
information from the request).
|
|
Select Blogzz & click icon |
|
BlogzzSphere |
||
|
|
ADVERTISEMENT
|
|
|
|
|
|
