Texas -  Something has amazed me for quite sometime, usually I am amazed after losing another lawsuit to the Community Association Institute Dream Team—Marc Markel and Clayton Hearn.  Perhaps the readers of this article can help me clear up this amazement.  I have been trying to figure out why when the homeowner goes into court with their second court case against their association, their case is lost to res judicata; but on the other hand, when the association files case, after case, after case against the same  homeowner for the same issue (foreclosure), the only thing changing is the amount, they win. ##M:{full story}##

I am sure there is someone out there who could justify the practice but is it legal to put a homeowner in such constraints when he or she is seeking due process?  Why is the rule book pulled out and dusted off when a homeowner is attempting to explain their cause of action and when the association is hauling a homeowner into court, the judge becomes co-counsel and ignores res judicata or collateral estoppel. 

For those who are wondering what the heck is res judicata and collateral estoppel, let me explain because I want you to get the true feeling of what I am saying here.  Res judicata bars relitigation of the same cause of action between the same parties where there is a prior judgment (the operative word being same) that ruled on the ultimate fact; whereas in collateral estoppel there is a bar to relitigation between same parties on a different cause of action, for example, blue car issue last year, red car issue this year.  When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be litigated again between the same parties in future litigation. 

So I am back to my original concern, how in heaven’s name can a homeowner defend his or herself against their association if the association has fraudulently concealed a material fact (like they did not have enough votes to annex you or change the amendment) and you did not find it out until after your trial was over?  Do you appeal the first judgment from the first case?  Or do you go thru door no. 2 and file a new complaint with the new cause of action against your association and this time you bring quite a few of your neighbors with you?

In retrospect, litigating your case is like going down a winding maze with many dead ends.  You go into court with your black and white issues and when you leave, you are dazed with a box full of gray issues.  So what do you do about it?  Do you laugh it off?  Pray it off?  Rant and Rave about it?  Do a blog?  Write this article?  What?  I decided to write this article and expose this practice. 

There is something seriously wrong with justice in Texas’s court system.  Homeowner’s are losing their legitimate cases by the truckload.  There is a well-oiled litigation machine out there, folks, and homeowners are not benefiting from it. 

The idea is to make sure the homeowner has to appeal their case because most homeowners have no money to fight for justice.  Our money is on the other side of the table with the homeowner association’s foreclosure rights and our maintenance fees.
Unfortunate for homeowners, we have about four (4) attorneys in Harris and Ft. Bend county who are willing to litigate for us and who know enough to be able to do so; while the homeowner association has a whole army of well-trained soldiers to litigate for them.  

Here is another problem we have with our attorneys, some times they are not fully trained to fight the beast in the courtroom.  Our attorneys are generally unsuspecting nice people who have no idea what they are about to encounter in the courtroom.  They are about to get a first-hand look into the belly of hell itself.  As a warning to all potential lawyers who may be thinking about representing homeowners, you need to know something.  You need to know your case, you know a few facts would help.  You need to be on time to the courtroom and you need to remember to turn your phone off in the courtroom.  If you do not know how to do that, you are going to upset the judge and possibly jeopardize your client’s case.  Oh, shucks!  I better be quiet because then you are going to know what happened to my neighbors and I in our case.

If the homeowner’s attorney does not at least match up with the homeowner association’s attorney, you are not going to get past go and while you may not go to jail, you are not going to win. 

The association’s attorney or attorneys, on the other hand, know their case because you have to know your case in order to lie about the facts.  It helps if you are nice because then the judge will think you are an ok person and help you lie, that is when he or she becomes the co-counsel.   The association’s attorney is always on time, in fact way ahead of time; and if he is late, it is usually a no show because then he or she get to say they notified everyone and your fax machine must have been broken that day. 

The bottom line is homeowners need more qualified attorneys to represent them and then they need judges who will respect the homeowner’s side of the story and then they need to heavily sanction the homeowner association and any homeowner association attorney who would fraudulently conceal discovery, lie in open court and intentionally submit the wrong documents to win a case. 

I dedicate this article to Judge Thomas Culver, III, Atty. Clayton Hearn, Atty. Marc Markel, Atty. Helen Mayfield, Cause No. 06-CV-148537, District Court 240, Ft. Bend County.    harvellajones@yahoo.com