Article Courtesy of The Real
Deal
By Lidia Dinkova
Published October 21, 2023
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The Hammocks is settling for $300,000 its suit against two law firms that
allegedly failed residents while representing the homeowners association during
the reign of criminally charged ex-board members.
The settlement marks the latest chapter in an ongoing saga at the Hammocks, a
complex with over 18,000 residents in West Kendall that’s the biggest HOA in
South Florida. In November of last year, police arrested former board president
Marglli Gallego, three other former board members and Gallego’s husband over
allegations they ran a roughly $2 million fraud scheme that siphoned association
funds, according to court filings. All five pleaded not guilty.
Since then, Hammocks court-appointed receiver David Gersten has been working to
claw back funds for the embattled association and fix other issues, such as
neglected landscaping and maintenance at the 3,800-acre property. His efforts
include finding out if others, aside from those arrested, allowed for the fraud,
turned a blind eye to it or, in the very least, didn’t do their due diligence to
notice and stop the scheme.
In May, Gersten, on behalf of the Hammocks, sued law firms Elbert Radames Alfaro
Berta; Alfaro & Fernandez; and attorney Yudany Fernandez, alleging they failed
residents on several fronts. The law firms and Fernandez, all of whom list the
same Miami Lakes office, represented the Hammocks association from 2018 to late
2022.
Last week, Gersten filed a motion to settle the lawsuit after the law firms and
Fernandez agreed to tender their full legal malpractice insurance policies,
according to court records. Their insurers include Oviedo-based Florida Lawyers
Mutual Insurance Company.
While the $300,000 would help replenish Hammocks coffers, the amount still is
just 10 percent of the $3 million in damages originally outlined in the lawsuit.
Gersten and his team of attorneys working on the case didn’t immediately return
a request for comment. But in court filings, they wrote that in light of
“evaluation of other collection issues and the risk attendant to litigation, the
settlement is in the best interest of the receivership estate.”
The settlement is signed by both sides, and is awaiting Miami-Dade Circuit Court
Judge Beatrice Butchko’s approval.
In the suit, Gersten alleged that attorney Fernandez penned a misleading legal
opinion in 2018, saying that the association can reimburse the personal legal
expenses of board members. But Fernandez failed to point out this is only the
case if the board member “acted in good faith” and in a way that is “reasonably
believed to be in or not opposed to the best interest” of the association,
according to Gersten’s lawsuit. Fernandez’s letter also failed to say that for
the association to cover a board member’s criminal defense expenses, it needs to
not have a reasonable cause to believe the board member’s conduct was illegal.
Based on this advice, the association shelled out funds to cover criminal
defense expenses for Gallego. The former board president, who is largely
described as the fraud’s ringleader in court filings, was first charged in 2021
with grand theft.
Gersten and his team of forensic accountants discovered the association
paid $825,000 for Gallego’s criminal defense, according to a February
presentation Gersten gave to the court.
In other allegations, Gersten claimed that the law firms and the attorney played
a role in the ex-board members’ attempts to hold onto their power. During an
election in January of last year, the attorneys helped close polls early and
then later that year struck down 1,900 recall ballots “under the guise they were
‘facially invalid,’” Gersten claimed in his suit.
The election polls closed early when a bomb threat was reported, though
investigators later found no credible evidence of such a threat, according to
court records.
As the Miami-Dade State Attorney’s office was working on its criminal
investigation, the former board of directors also pushed back on subpoenas and
records requests under the advice of the law firms, according to Gersten’s
lawsuit.
Elbert Radames, Alfaro & Fernandez and Fernandez, as well as their attorneys,
didn’t immediately respond to a request for comment.
In an August motion to dismiss, they partly argued that the suit commingled
allegations, meaning the suit made claims against the law firms and Fernandez
without delineating specifically who was responsible for what alleged action.
The pending settlement follows Gersten settling for $2 million a lawsuit he had
filed against former board members who were not criminally charged but allowed
for the alleged fraud to take place. The proceeds were proffered by the
associations’ directors and officers policy, which insures HOA leaders from
liability.
Gersten has sued several other law firms and attorneys, alleging they also
failed residents and adhered to ex-board members’ wishes.
Aside from Gallego, the former board members arrested were Myriam Rodgers,
Yoleidis Lopez Garcia and Monica Isabel Ghilardi, as well as Gallego’s husband,
Jose Gonzalez. Their scheme entailed hiring bogus contractors, with Gonzalez
leading some of the purported vendors, to supposedly work on maintenance and
repairs at the Hammocks, according to a state attorney’s office arrest
affidavit. When the association approved the contractors’ invoices, paid by
association residents’ dues, much of the money was diverted to the pockets of
Gallego and Gonzalez, investigators claim.
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