OFFICE OF ADMINISTRATIVE HEARINGS ARIZONA DEPARTMENT OF REAL ESTATE

Transcription

1 Annette Cohen PO Box 1 Sun City West, AZ Telephone:..00 Pro-Se for Petitioner OFFICE OF ADMINISTRATIVE HEARINGS ARIZONA DEPARTMENT OF REAL ESTATE IN AND FOR THE STATE OF ARIZONA Annette Cohen, Petitioner vs CBS- Homeowner s Association Respondent Case No.: HO - /0 Docket No: F-H0-REL PETITIONER S RESPONSE TO: RESPONDENT S REPLY IN SUPPORT OF MOTION TO DISMISS PETITION FOR HEARING AND TO VACATE HEARING SET FOR // Your Honorable Judge Eigenheer: Petitioner, Annette Cohen, replies to Respondent s Reply dated May,. Ms. Cohen presented a Pro-Se Statement previously, that she still requests the OAH to consider since she is not a lawyer and can only understand what she knows from tutorial information given on the OAH website. This OAH/ADRE venue is to allow access to the law in a low cost manner for both homeowners and HOA s. This complaint is a perfect example of an issue that PETITION FOR HEARING AND TO VACATE HEARING SET FOR // - 1

2 legislators designed this venue for when there is an alleged abuse of HOA power/treatment that needs a timely remedy. Ms. Cohen has not had any attorney or legal assistance in creating her documents for the OAH as Mr. Ditsch alleges. Ms Cohen just purchased Microsoft Word since using notepad was getting too difficult with all these current documents to answer. Any allegations/assumptions made by Mr. Ditsch regarding Ms. Cohen s silence is categorically denied and she does not concede nor does she indicate anything he stated she has so done in the Respondent s reply dated May,. Per A.R.S. - the authority in this matter before OAH is vested in the ALJ determination process, and perhaps that is all that needed to be said. Ms. Cohen outlined previously in her response dated May,, the reasons supporting the chain of authority in the statutes that clearly provides the OAH/ADRE as the venue for jurisdiction for homeowner disputes with their condominium associations regarding Arizona Condominium Statues, By-laws and CC&R s. (That will not be restated here, since the other document is available to review). Ms. Cohen paid the fee for a contested case that was referred to OAH for a hearing. If the HOA was to have a problem with a homeowner not obeying governing documents they could use this venue themselves for that cost effectively. Ms. Cohen responded to the unconstitutionality argument instead of dropping the matter out of frustration at receiving the long motions and letter to the legislators because the HOA deliberately violating statutes and governing documents and laws in their treatment of her must end. Every injustice that CBS- has been able to get away with has created a situation of worsening of the punitive actions she alleges she receives. An order by Your Honor was given on // after a review of both Mr. Ditsch s motion and PETITION FOR HEARING AND TO VACATE HEARING SET FOR // -

3 Ms. Cohen s response. There is nothing in the Respondent s new motion dated // that changes Mr. Ditsch s argument for CBS-. Mr. Ditsch still states there are two issues: that A.R.S. - is unconstitutional for OAH or Your Honor to make determinations and that A.R.S. -.0 is unconstitutional for violation of due process for any fine amount. Now he also ads without supporting case law that if OAH cannot determine constitutionality issues it cannot determine all the other issues it currently constitutionally determines for HOA dispute matters. It must be remembered CBS- still has presented no arguments to justify or present merits for the deliberate non-compliance with A.R.S. - and CC&R s Article XVI, Section in any motions ever submitted. There is a correct process for everything. After an ALJ determination Mr. Ditsch can appeal and Mr. Ditsch is certainly entitled to address the issue of constitutionality in the superior court after a determination by Your Honor is made at the hearing. Mr. Ditsch s additional motion dated // purposely created to make more for the Petitioner to respond to; furthermore, multiple filings for the same issues has cost the HOA unnecessary additional costs to be drained from the reserves and lined his pockets rather than just attending the hearing. This is the same kind of attitude that Ms. Cohen faces with this Board for most everything nothing can be made simple, ignore her, delay her, and initially deny or unreasonably condition disability modifications that legally must be permitted. (FHA issues are currently being addressed by the AZ Attorney General s office). Ms. Cohen alleges Mr. Ditsch is arguing about a fine that has not even been ordered because they know they have violated the statute, and there may be consequences for that if Your Honor so determines. The amended petition includes the violation of Article XVI, section of the CC&R s because the governing documents requires CBS- to be compliant with Arizona Statutes, since it is the PETITION FOR HEARING AND TO VACATE HEARING SET FOR // -

4 state law. In deliberately violating A.R.S. - Ms. Cohen alleges CBS- is also violating their governing documents. One action of the Board can be a violation of more than one statute, as it can be a violation of a statute and the CC&R s. Your honor will determine how many violations there are in CBS- s failing to comply with record review within the required business days, and whether or not the CC&R s are also violated. Just as Mr. Ditsch states that the pending motion to Dismiss has nothing to do with the sufficiency of her pleading. Ms. Cohen asserts that her right to a hearing on an HOA dispute matter with the OAH should not be subjected to multiple arguments of unconstitutionality (on the same two issues) because CBS- HOA has no defense for their deliberate lack of compliance with A.R.S. -. CONCLUSION Ms. Cohen restates that OAH lacks jurisdiction to make a determination of constitutionality, (as has Your Honor also stated in the // Order). The OAH has in its jurisdiction the authority to determine a violation of the condominium statute and CC&R presented in the complaint per A.R.S. - and to issue a fine per A.R.S...0. CBS- is entitled to appeal any ruling by the Administrative Law Judge, and thereafter, can bring the constitutionality matter before the superior courts provided CBS- wants to invest their reserves in what may be interpreted as a frivolous lawsuit. Mr. Ditsch should have an obligation to advise his client they could be responsible for Ms. Cohen s attorney fees if the matter is brought to superior court. CBS- will still have to prove they did not violate the statute whether in this cost-effective venue or a more expensive superior court. CBS- cannot deny they are in violation of the statute, nor have they denied that fact. Both Ms. Cohen and CBS- have the right to this HOA dispute process through OAH/ADRE. Both parties should both be grateful for this venue. PETITION FOR HEARING AND TO VACATE HEARING SET FOR // -

5 Mr. Ditsch is still trying to undermine the OAH with his repeated argument of unconstitutionality. A.R.S. -.0A and other statutes are entitled to a presumption of constitutionality (Per Ruiz v. Hull, 1, Ariz. 1, P.d. (), that fact Mr. Ditsch has not denied. As most HOA s already understand, Arizona HOA law has long provided that disputes between HOA s and homeowners- whether brought by the HOA or the homeowner could be resolved through an administrative HOA Dispute Process in the Arizona Department of Real Estate (ADRE) where disputes are resolved by the decision of an ALJ. The newest version of ARS - signed into law retains the standard that the trial court should affirm the Administrative Law Judge s decision unless it was contrary to law, not supported by substantial evidence, arbitrary and capricious, or an abuse of discretion. This is a very high standard. ALJ Administrative Decisions will continue to be treated with deference by the Courts because of that high standard and presumption of constitutionality. Ms. Cohen is requesting a denial of the Respondent s motion to dismiss petition for hearing and to vacate hearing set for //. Ms. Cohen is requesting the hearing to be granted and to remain as scheduled on June th, at :00AM. Dated this th day of May,. Annette Cohen Pro-Se for plaintiff Original sent this th day of May VIA electronic submission Office of Administrative Hearings PETITION FOR HEARING AND TO VACATE HEARING SET FOR // -

6 Copy ed and by US mail to the following: CBS- HOA c/o PRM Management PO Box, Peoria, AZ - PRM@prmaz.net Brian Ditsch/Sacks Tierney P.A. 0 N. Drinkwater Blvd, th Floor, Scottsdale, AZ 1- Brian.Ditsch@sacstierney.com Dan Gardner/HOA Coordinator c/o Arizona Dept of Real Estate N. th St, Ste 0, Phoenix, AZ 0 dangardner@azre.gov PETITION FOR HEARING AND TO VACATE HEARING SET FOR // -