The Countersuit

Below is a summary of the countersuit.

Your ANSWER (to SLohA allegations)

Your answer first asserts that the restrictions on your parcel ceased to exist on March 2, 2012.

The answer further asserts that the original Covenants had no amendment provision and Florida law prohibits any changes to the Covenants except by 100% approval by the Members.

The answer goes on to say that since the Covenants expired and the Amendments were equally extinguished in 2012,  the Notice of Preservation recorded on your parcel is a cloud on your title and a legal nullity.

Your answer says that even though you were not bound to do so, you did seek "written approval" of your home on Jan 7th and were granted written approval on Jan 27 and your home was inspected and delivered on Feb 18th.

Your COUNTERCLAIM (against SLohA)
The Counterclaim is based on the following premises, which are applicable to all counts.  You can think of the following as the "legal" history of the property, starting with:

The Unit 3 Covenants in 1976 which incorporates the subdivision plat, recorded in Polk County. 

Next follows the owner history from the original purchaser each of the subsequent purchasers up to 1986. 

Next, an Amendment was recorded by SLohA in 1986 which purported to amend the covenants with an UNRECORDED consent of "not less than 3/4 owners of all three units"--noting that there was no provision to amend the Covenants. 

Then, in 1989, a second revised Amendment is made which fails to state how many owners agreed to the amendment and fails to refer to any provision in the original Covenant by which an amendment could be adopted.

Four more owners conveyed title after the second amendment; the final title holder is YOU.

The Counterclaim states that in none of the conveyances was reference specifically made to the OR Book and Page where the original Covenants nor either Amendment were recorded.

Your root of title is March 2, 1982; therefore, the Covenants (and therefore all purported amendments) were extinguished on March 2, 2012.

On April 5, 2013, SLohA attempted to preserve the Amendments (but not the Covenants).

Count I  Quiet Title

By operation of MRTA, your title was free and clear of SLohA Covenants and any amendments as of March 2, 2012 and the court is asked to remove the cloud on your title from Covenants and Amendments and to award you fees and costs and any other relief the court chooses.

Count II -Declaratory Relief-Invalidity of Notice of Preservation

This asks the court to render a legal opinion and final determination about the status of  your lot--to render the Covenants and Amendments extinguished and the Notice of Preservation a legal nullity and to award costs, fees and other relief to you.

Count III- Slander of Title

This says that SLohA attempts to assert its power over your lot by virtue of the Covenants, Amendments and Notice of Preservation and, in doing so, slanders the title to your property by asserting the validity of these documents.  In particular, the recording of the Notice of Preservation is untrue and disparages your title and recording it was unjustified.

As a result of such published falsehoods about the true condition of your lot, you have incurred actual and special damages in the form of impairment of marketability of title.

Finally, the court is asked to award you fees in excess of $15,000 plus other fees, costs and relief as the court decides appropriate.
 
Your counterclaim requests a Jury Trial.

It is just bizarre what these people are doing to you!  Trust that this sorry scheme is so obviously evil of these MANBOD punks that the jury will be in shock and probably award you a generous amount for your suffering. 

Having a Jury is Good--the general perception of HOA abuse and overreach is dreadful in Florida and you are a sympathetic figure who has been victimized by a greedy and out-of-control group of HOA thugs.

The people of S-bag are not unlike a jury--there are very few people that I know of who think that spending tens of thousands of dollars in legal fees because your porch is on the front is a good idea.  The jury will be dumbfounded at the lunacy of this Board and waste of Owner money! 

And this has only begun.  And, for BOTH our lawsuits, there has only been the initial volley of Complaint/Answers. 

Here is SLohA's Answer to the CounterSuit filed by the Persecuted Owners.

This is the full document filed Oct 6, 2014>>>SLOAAnswer_Responseto TomaykoCounter.pdf (164.47 KB)

Here is a "compiled" Countersuit with SLohA Answers.  It is easier to follow along each statement/answer.  The SLohA Answer is in RED>>TomaykoCountersuitSLOAAnswer.docx (58.83 KB)

Here are SLohA's AFFIRMATIVE DEFENSES TO COUNTER-CLAIM

1. Defendants/Counter-Plaintiffs have either did not incur any damages or losses as a result of any allegations levied in this Counter-claim, failed to mitigate their damages, and therefore, are not entitled to any relief in this action.

2. Counter-Plaintiffs failed to comply with the conditions precedent to filing an action for declaratory relief and/or for filing an action pursuant to Chapters 65 or 712, Florida Statutes, and therefore, cannot maintain this Counter-claim.

3. Counter-Plaintiffs' action is barred by the applicable statute(s) of limitations, which may include but are not limited to Florida Statute ss. 95.12, 95.231 and 95.11.

4. Counter-Plaintiffs' action is barred by the doctrine of laches.

5. Counter-Plaintiffs waived any entitlement to bring the causes of action raised in their Counter-Complaint when they purchased the subject property with the known, and publicly recorded, interest of S-bag HOA upon that property. The title records disclosed same. Counter-Plaintiffs had actual and/or constructive knowledge of the S-bag HOA's interest in the subject property and correlating applicable by-laws.

6. Even assuming, arguendo, that the Notice of Preservation filed by S-bag HOA in 2013 is ruled invalid for any reason, the 1986 "Amended Declaration" is still valid and enforceable as to Defendants'/Counter-Plaintiffs' lot.

7. Counter-Defendant S-bag HOA's Board of Directors was fulfilling its legal obligations and fiduciary duty to the Association by preserving the Declarations by which it is governed.

(Editor Note:  I got a kick out of Defense #6 that--i.e. for argument's sake-even if the Notice is ruled "invalid"--the 1986 Amendment is valid.  This is the Hail Mary!   I can't wait to hear the particulars of that argument!  Also, note the absurdity of Defense #7 i.e.  SLohA was fullfilling its fiduciary obligation to preserve the Declarations.  In fact, SLohA never preserved the Declarations at all!  The only documents preserved were the amendments, which documents were done without authority of the Declarations.)

Lra wrote:

This news lightens the load on my heart when I think about S-bag and your comfort of being at home and feeling safe here.  You have obviously been good friends to many people to gather such an abundance of support and love.

Lra wrote:

As I understand it, your lawyer is seeking to partition the several complaints and is requesting immediate judicial action on the Declaratory Judgement.  If granted, the legal uncertainty of the expiration of the covenants will be adjudicated.  If you prevail, and the judge says to SLohA "covenants are expired", won't that ruling effectively gut the remaining complaints?  The foundation for the rules violations argument would be non-existent.  Seems like taking this to a jury in that event would be disastrous for SLohA.