Memorandum
Date: February 7, 2025
To: PLAINTIFFS
From: K. David Andersson, Attorney
Matthew Davis, Attorney
CC: CLASS MEMBERS
Based on this memo and these supporting documents, unless and until MJ Management can produce a valid written assignment of Declarant rights from 18 Paradise, or a clear authorization that 18 Paradise appoints MJ Management as its agent to collect maintenance fees, MJ Management has no legal authority to collect maintenance fees for any time period from Homestead Homeowners.
On September 11, 2024 the Court entered an Order (the 9/11 0rder) adopting wholly the Findings of Fact, Conclusions of Law drafted by MJ Management’s attorney – Jeffrey Possinger.
At section 4 of that 9/11 Order, the Court clearly ordered:
4.5 MJ Management’s declaratory counterclaims are dismissed.
So what were the dismissed MJ Management’s Counterclaims?
On the 3rd day of trial, over the objection of Plaintiff’s counsel, the Court permitted MJ’s counsel to file the following amended declaratory counterclaims:
VIII. COUNTERCLAIM FOR DECLARATORY RELIEF
122. Defendant MJ Management, LLC, by and through undersigned counsel, submit its Counterclaims for Declaratory Relief against Plaintiffs Scott Hillius; Tom Staehr; Daniel and Sonja Lyons; Randy Drubek; Ronald Saran Douglas and Angelique Scarlett; Mark Miedema; Steven and Lisa Zehm and Plaintiff’s Class as a whole. [DISMISSED]
124. 18 Paradise, the current Declarant entered into a Management and Lease agreement with MJ Management, wherein it assigned to MJ Management certain Declarant rights and delegated certain responsibilities. [DISMISSED]
125. One of the rights 18 Paradise assigned MJ Management was the right to collect the Joint Maintenance Fee from Plaintiffs Scott Hillius; Tom Staehr; Daniel and Sonja Lyons; Randy Drubek; Ronald Saran Douglas and Angelique Scarlett; Mark Miedema; Steven and Lisa Zehm and Plaintiff’s Class Plaintiffs Scott Hillius; Tom Staehr; Daniel and Sonja Lyons; Randy Drubek; Ronald Saran Douglas and Angelique Scarlett; Mark Miedema; Steven and Lisa Zehm and Plaintiff’s Class, as a whole. [DISMISSED]
126. 18 Paradise also assigned MJ Management the right to amend the Homestead Master Declaration. [DISMISSED]
130. MJ Management exercised its assigned Declarant power and utilized the Master Declaration’s Section 8.2.1 and entered the Sixth Amendment to the CC&Rs which amended Section 3.5 to allow the Declarant to impose any and all Parcel Owners a special assessment for maintaining the Common Open Space. [DISMISSED]
131. MJ Management exercised its assigned Declarant power and utilized the Master Declaration Section 8.2.1 and entered the Seventh Amendment to the CC&Rs which made the non-waiver clause in Section 8.3 explicitly applicable to Section 3.5. Using the historical calculation, MJ Management increased the maintenance fee to the rate of $93 per month.[DISMISSED]
132. Under paragraph 3.6 of the Master Declaration, non-paying parcel owners owe the past due joint maintenance fees, interest, reasonable attorney’s fees, and the costs of collection. Plaintiffs and Plaintiff’s Class have not paid their full share of maintenance fees. [DISMISSED]
133. The Lease Agreement was terminated effective May 31, 2023, and certain parcel owners, which include the Plaintiffs and Plaintiffs class had not and still have not paid their joint maintenance fees during the time the Lease Agreement was in effect. [DISMISSED]
134. Through this above captioned litigation, MJ Management seeks a Declaratory Judgement from the Court, Ordering that MJ Management has the right to collect any unpaid special assessments and Joint Maintenance Fees from Plaintiffs and Plaintiff Class which became due to MJ Management during the term of the Management and Lease Agreement and the right to exercise each and every enforcement mechanism the CC&Rs grant to the Declarant to collect those unpaid special assessments and joint maintenance fees including interest, attorneys fees, cost of collection and the right to lien property.[DISMISSED]
135. Through the above captioned litigation, MJ Management seeks a Declaratory Judgment, ruling that the rate of the maintenance fees was properly at the rate of $93.00 per month throughout the termination of the Lease Agreement. [DISMISSED]
136. In the alternative, if the Court enters an Order finding that the seventh amendment complaint is invalid, MJ Management seeks a Declaratory Judgment class members will have been required to pay at least $36.00 per month in Joint Maintenance Fees to MJ Management between January 2020 and the termination of the Lease Agreement. [DISMISSED]
IX. RELIEF REQUESTED
137. The MJ Management Defendants respectfully requests that this Court:
138. Enter Judgment for Declaratory Relief defining the rights of MJ Management and the obligations of the Plaintiffs and Class Members related to paying and collecting the Joint Maintenance Fee and any applicable interest; by establishing a formula through which the Homestead Homeowners i.e. Named Plaintiffs and Plaintiff Class are to pay Joint Maintenance Fees at a level defined by the Court, and allocating attorney’s fees, costs, and collection (as requested below); [DISMISSED]
139. Enter Judgment for Defendant, MJ Management, with respect to its Counterclaims; [DISMISSED]
140. Award Defendant, MJ Management its reasonable attorneys’ fees, costs, and costs of collection, and [DISMISSED here and once again on MJ’s post-trial motion for fees]
In conclusion, unless and until MJ Management can produce a valid written assignment of Declarant rights from 18 Paradise, or a clear authorization that it appoints MJ Management as its agent to collect maintenance fees, MJ Management has no legal authority to collect maintenance fees from Homestead Homeowners.
Supporting Documentation