Application of Covenants & Restrictions via the Judiciary

September 15, 2004

By Taffy & Andy Rice (View author info)
Copyright Taffy Rice

HOMEOWNERS ASSOCIATIONS are the the legal professions recurring revenue stream

Like so many others, I have a property rights nightmare, steeped in politics and influence, I pray no other land owner will ever endure. However, as I have become more painfully aware, my family is not the exception, but NOW the rule (of law, no less!). While we read about horror stories like the Radcliff Family, I can't help but wonder, when the American Public, as a whole will demand legislators and officials, to include the White House and all levels of government, so as to stop this judicial tyranny and unconstitutional onslaught.

You see, we purchased our home from Decatur Federal, now a Wachovia holding. At our closing, the Bank Vice-President, representing the seller, the real estate agent, and closing attorney, all conveyed assurances, there were NO covenants and restrictions on our property. Closing documents reflect this assurance, as it was contingent that none were binding for our purchase to be consummated. The legal food chain has now begun!

ARTICLE SUMMARY:

LMHA, Inc. & the ACC of LMTHA v. Rice

A deed with no restrictions or covenants can now be enforced against a property where none exist, even after purchase or occupation. (like Peters & Freedman in Calfiornia)

A non entity or person can now file a claim against your property and prevail. It was alleged, a property owners' actions can serve to substantiate a corporate claim or interest ('corporation by estoppel' formerly known as fraud!), whether valid or not.

**Both of these circumstances, are in opposition to prior GA Law and the case precedence, written by the GA Appellate Court Judges, who just overturned their own writings.

Early in my exposure, a friend called me to tell of a situation in her neighborhood, that seemed odd at best. Then it sank in; My Lord, it's not just a statewide issue but federal as well. For you see, a couple across the street from her had moved out of their property seemingly overnight.

The next day and for a few to follow, a new inhabitant seemed to suddenly appear. The property had been declared a 'HUD' home providing federal funding assistance to the new inhabitant, in a neighborhood of properties valuing approximately $200,000+. When a fellow neighbor and member of the court staff contacted a law firm, he thought of none other that Brock, Clay, Calhoun, the preeminent law firm of Cobb County, who just happened to have a housing specialist on staff. They were able to apply covenants to the property, and "take care of things".

Then there was the required refinancing of our home, in order to survive the legal harassment and fraudulent attacks, we have endured for 5 years, solely to protect our children and property. We used a closing attorney we knew, fearing the profession in general. Imagine our shock, when in the closing papers by the attorney, Jim Tally who my husband flew in the Marine Corps with, there is a document called a 'PUD' or "Planned Urban Development" rider.

We were shocked and incredulous. I began to apologize to the bank representative I had asked to attend the closing with us, as we were not willing to close, if signing this document was a prerequisite. Tally informs us, it is a requirement to close, but the representative of the bank has never seen such a form, and appears honestly shocked, as are we. The purpose of the 'PUD' you wonder, to attach covenants and restrictions to our property of course.

Did I mention, Mr. Talley is the partner of the leading Republican in the GA House of Representatives under Governor Sonny Perdue, none other than Glenn Richardson? Tally explains, it is a requirement of every closing. With interest rates low, that must mean a lot of people have 'PUD' riders now attached to their property. We remain stalwart, and Tally must relinquish his repeated demand for compliance, and the lender does NOT require this concurrence.

These issues probably do not readily speak to every property owner yet, the way it immediately struck me in both instances. But as for my family, we have laid witness to the travesty of denied property rights, constitutional protections, and the power behind those that use negating property rights to their monetary gain, and a very profitable effort for the legal profession it is. When we first had the most renowned law firm in Atlanta, Weissman, Nowak, & Curry, review the covenants we supposedly are bound by, there was no assistance or insight.

But when I pointed out the obvious verbiage, which negated the very implementation of the document, I was told, we do not want to create case precedence FOR property owners! Ah yes indeed, far be it that property owners might retain constitutional rights or protection!

For you see, my husband and I hold a deed and property (14 years), which has NO covenants or restrictions. According to GA Law, my property cannot be bound unless such a requirement or provision is contained in the chain of title prior to purchase, and as a buyer, as such an owner or deed recipient willingly enters into a contractual relationship with regard to that property. But let me repeat, my husband and I have NO COVENANTS AND RESTRICTIONS UPON OUR DEED! That is to say physically we don't, in accordance with the law or case precedence, prior to being sued by a dissolved corporation, with NO legal standing!

IN THE BEGINNING....of the nightmare anyway..

**That is...until a common area supposedly owned by the residents of Phase II and III of Lost Mountain Township (76 of us), had their deeded interest sold by a person, who had no ownership rights in that property. You see, my husband and 3 others objected to any such discussion, much less a purported sale of our 'common area' held by the owners not an association. But when a person in an adjacent neighborhood, known as Phase I, Lost Mountain Homeowners Association, Inc. signed a quit claim deed to sell the 10 acres and tennis courts on behalf of Lost Mountain Township Association, Inc., to a foreign national for pennies on the dollar, that's when our nightmare began.

Did we protest in verbal and written forms you wonder? Without question our protest, was audible enough, we were met by harassment and lawsuits, initiated by none other than our own State Senator's law firm (Chuck Clay, partner of Richard Calhoun, Brock Clay, Calhoun)***.

Unknowingly, we became targets of videotaping in our backyard, sustained property damage, were followed to public locations, our contractors were being harassed as well as threatened, along with public officials. We asked our neighbors and those identifying themselves as the ACC of Lost Mountain Township Association, Inc., to erect a fence, so as to secure our home for the safety of our children. In addition, we mentioned the construction effort to neighbors, the county, and most everyone we could think of. No one took issue and the alleged ACC of LMTA approved the effort.

We changed the composition type of the fence, and once again received approval from the same entity, in addition to the same person in Phase I, who signed the quit claim deed regarding the sale of our common area, Ronald Cannon, among others. We did not understand his involvement or approval, but it was in keeping with everyone's opinion, and therefore was of little concern. Strangely, Cannon came to our home not once but twice, complimenting our effort. His visits seemed to emanate from our new, British neighbors to the south, Terence and Susanna Say.

Upon completion of the fence, which we were forced to erect as a protection of our family and property from damage inflicted by the Says, we received a letter from Cannon threatening litigation, if we did not take down our completed fence of 3 months. He specifically stated, he was "rescinding the approval" of our fence, in violation of any covenants we have seen to date, or GA Law, ("collateral estoppel").

While Cannon had never been elected to any post by a majority of any homeowners group, and we had never had a meeting with the mandatory covenants described in LMTA Restrictions and Covenants, Mr. Cannon declared himself the instigator of a suit as the President of LMHA, Inc., purporting covenant and county violations. With the help of the State Senator's law firm led by Richard Calhoun, the county was according to Billing Records and Open Records Request Documents, sent to our home repeatedly. A file was created for a criminal detective, private detectives were hired along with other attorneys, and repetitive documents were filed to created organizations, after their prevalence over our property was presented to the court.

The suit continued with various pleadings, initially threatened with a lack of Plaintiff or standing. However, the Plaintiff continued their assaults, using every county agency, the Chamber of Commerce, as well as the Bar Association. Upon the long awaited court date obtained, the Plaintiff, after submitting a false consent order to add another Plaintiff, (which did not exist at that time - LMTHA!), dismissed the lawsuit. We did not retaliate, but rather prayed.

After only 5 months, the lawsuit was renewed (June 2002), with references to county compliance removed. Through more trauma, legal fees, and pleadings, we finally obtained another court date. The judge stated we did not have the right to a jury trial, as this was an injunctive relief case. And she proceeded to refuse to listen regarding the argument of any 'proper party Plaintiff'. Following 2 days of a 'staged' bench trial, she proceeded to rule in opposition to every shred of evidence and testimony, with the exception of a false statement made by Cannon, which conflicted with legal documents in evidence. Additionally, she interjected findings, which could not be found anywhere in the record. Ultimately she named the parties and those that made up the parties without regard to any rule of law.

Cobb County Superior Court

In summary, Judge Adele Grubbs found:

1. LMHA, Inc. a dissolved GA Corporation could sue us, and administer our property via our deed with NO restrictions or covenants.

2. She allowed LMHA, Inc. (a non profit dissolved corporation) to prevail, using the covenants of LMTA, Inc. (a profit corporation).

3. The ruling stated we had paid dues to LMHA, Inc. quoting false testimony by Cannon, which no such documents were in the record, as it did NOT happen. However the dues notices and threat of liens in the record, were clearly from LMTA, Inc.

4. She ruled that the 2 corporations were merged by a vote of the homeowners, which did not happen, and could not under corporate law in GA.

5. Moreover, she allowed the Plaintiffs their attorney's fees citing 'stubbornly litigious' under a statute that does not allow the award of fees for that issue in an equity case. In addition, she pointed to our notifying neighbors in a letter, we were being sued, after the suit was filed, as the evidence of being 'stubbornly litigious'. This statute can only be used, when your purposeful actions force another to sue you, and must occur prior to the filing....obviously NOT here!

6. As to the 2nd Plaintiff added without consent, the ACC of LMTHA, there was also a problem. You see, LMTHA in any form did not exist at the time, it became the 2nd interest in this lawsuit. So, my husband and I created it, to potentially use as a homeowners service based business, but without question, were the sole owners. So the judge decreed, who the new owners of LMTHA were, not us as you might imagine, and threatened us with contempt, if we attempted to use our own corporate name! Keep in mind, we are the only registered owners of that name and have continuously paid the only corporate registration since 2000, while the renewal of this lawsuit was June 2002.

7. The Plaintiffs also request a bond to be required and immediately payable. Richard Calhoun uses a document allegedly sent to another neighbor forcing them to comply with the Plaintiff's direction, stating we are interfering with the business of the association. According to that neighbor, no such document was every issued or received. At the time of ruling, we did not know this fact, nor had we been given a prior copy before the hearing, as required by law. This letter was the basis of the judge's contempt threat against us as owners of LMTHA, but the correspondence was sent to the neighbor, under an ACC of LMTA identifier.

GA Court of Appeals

Needless to say, we thought we were a shoe in for the GA Court of Appeals. There we met the Clerk, William Martin. On Appeal, Calhoun changed the Plaintiff, in violation of the Appellate Court Rules. We went to the Clerk's Office and asked how such could occur. We were instructed to file a 'Motion to Disqualify and Strike', with sanctions. Instead of the normal 10 day turnaround period we had continuously witnessed, upon which motions were ruled, instead in this instance our pleadings languished. Mr. Martin by phone explained, his office had incorrectly 'coded' our Motion. After 4 months, our ruling and Motion were rendered adversely at the same time.

While the Court of Appeals supposedly upheld the lower court decision, they picked new winners! How does that happen on Appeal? For the sake of clarity, I will juxtapose and summarize.

Superior Court Cases GA Court of Appeals

LMHA, Inc. (Original Suit) LMHA, Inc. & ACC of LMTHA (Appellee)
LMHA, Inc. & the ACC of LMTHA (Amended Complaint) LMHA Phase I & LMTA Phase II & III (Appellee filing a Reply Brief)
LMHA, Inc. & the ACC of LMTHA (Winner via Grubbs) LMHA, Inc. & the ACC of LMHA
(Winner via Appellate Court)

Did you get that? The Appellate Court upheld Grubbs decision in favor of a dissolved non profit corporation and a company interest we (the Rices) created, but she renamed who the individual interests in LMTHA were. However in 'upholding' her decision, the Appellate Court named a brand new prevailing party not previously identified in either court as a party, 'the ACC of LMHA'. No wonder Senator Clay, claims on his website to possess the ability, 'to facilitate changes to law for clients and industry'.

We have submitted a request or Writ of Certiorari to the GA Supreme Court. While this case and it's findings, rewrite ALL state property and contract law applicable to this case, while creating NEW case precedence, for every property owner in GA, what are the chances we will find justice? Our prayers will be answered by God's will, and we will keep you posted.

The most important things to remember from this case:

A deed with NO covenants or restrictions, can now have such imposed after the sale, without the agreement or acknowledgement of the property owner.

A dissolved corporate interest, or a Plaintiff with no legal standing can claim jurisdiction over your property and prevail, assess, or alter your legal rights.

One point of clarification, when we conveyed to our neighbors what was done in Superior Court without their knowledge or approval on December 17,, 2003, specifically pointing out LMHA, Inc. had been dissolved prior to the filing of this renewal action (2002), the next day the 18th, Calhoun renewed the corporate status of LMHA, Inc., and the Secretary of State allowed it. In Appellate Court documents, Calhoun claims the 2 corporations were merged in 1996, but yet maintained corporate registration until 1998, then filed a corporate reinstatement in 2003, all under the previously dissolved name LMHA, Inc. The Secretary of State, Cathy Cox, who would not make an appointment with us, but is now running TV ads warning seniors of investment fraud, displaying them as physical targets!

And in closing, another lawyer has been hired, who supposedly represents LMTA, Inc. Remember Cannon swore in testimony and affidavits to Grubbs, he had only been a member or officer of LMHA, Inc., despite the quit claim deed, he signed as 'President of LMTA, Inc.'? Despite Grubbs ruling and the conclusion of the Appellate Court, we are now being billed under a different corporate name for dues, via threat of lien. Michael Rome, the counsel along with Calhoun for LMTA, Inc., refuses to answer who his client is, but is threatening a lien, if we do not pay him dues money, in violation of both the Superior and Appellate Court rulings!

Clearly the notion of homeowners associations and their related covenants are a fantastic financial opportunity, the sharks feed many fish from. Contemplate the position a lawyer in today's society now holds. They close the sale of property, represent associations, armed with covenants and restrictions, as their weapon of choice. They make appeals to other lawyers, and choose what can be heard or seen by their fellow member of the bar.

Not only do lawyers control the interests of an entire association, and receive retained funds from the collective organization, but any challenge can increase their meter, to rival only a cab driver's dream, when cornering an 'out-of-towner'! Demands of rights or constitutional protections, enable the greasing of the machine, the further erosion of property rights, and the lack of sovereignty of a nation, while providing an overwhelming cha ching!

And do you wonder why so many lawyers are seeking elected office? Imminent domain, zoning matters, pay increases, and a reduction of individual rights are little more than an investment for some. Being able to garner the property and constitutional rights of a neighbor or neighborhood, can yield quite a return on investment, with no repercussions required!

It's time to wake up the country. Property owners should not be moving targets of well connected politicians or lawyers. And we offer our thanks to the AHRC for taking on the challenge and being the light in a very long tunnel.

Additionally, we would like to thank you for your patience and interest. We will provide more disclosures and revelations to follow! For additional documents and detail, (if you can stand it!), visit www.ricegang.com.