"SUBSTANTIVELY UNCONSCIONABLE" EQUALS "HIGHWAY ROBBERY"

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published November 23, 2009

I called it HIGHWAY ROBBERY; a judge called it: SUBSTANTIVELY UNCONSCIONABLE!

In a case pending in THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR POLK COUNTY, FLORIDA Circuit Court Judge Dick Prince ruled on motions brought in front of his court regarding provisions in the governing documents that allow the party in charge to collect attorney's fees and cost without being the prevailing party. He called these provisions SUBSTANTIVELY UNCONSCIONABLE. Please read here the important paragraphs of his important ruling:

b. Defendant proved by a preponderance of the evidence that certain portions of the Declaration of Covenants are substantively unconscionable or may be subject to interpretation in a substantively unconscionable way. The provisions which the Court finds substantively unconscionable and the remedies therefore are set forth below.
5. Paragraph 6 of the Declaration of Covenants enables the Manager to prosecute violations of the Declaration of Covenants. The second sentence of such paragraph reads as follows:
"Costs of such proceedings, including reasonable attorney's fees, shall be paid by the Lot Owner."
This sentence is unconscionable because it does not require the Manager to be the prevailing party in such a proceeding before it is entitled to collect fees and costs. Therefore, the Court exercises its power to interpret this provision to avoid an unconscionable result and will require that Manager be the prevailing party in any such proceeding before it is entitled to collect the fees and costs
indicated.

CLICK HERE FOR COMPLETE RULING!

This ruling by a Florida judge just confirms what we said all along: Demanding cost and attorney's fees without being the prevailing party is nothing else than HIGHWAY ROBBERY!

In my article published on February 17, 2009, headlined SOME CALL IT ENFORCING DEED RESTRICTIONS -- OTHERS CALL IT HIGHWAY ROBBERY! I made it very clear that the tactics used by some law firms are unconscionable -- or even worse.

Judge Dick Prince now confirmed that I was absolutely correct making this statement.

This was a demand made in a letter sent to an owner by an attorney of the law firm of Larsen & Associates, P.A. in Orlando:

PLEASE NOTE THAT THE FEES AND COSTS REFERENCED IN THIS DEMAND LETTER ARE THOSE INCURRED TO DATE. YOU ARE RESPONSIBLE FOR ALL FEES AND COSTS THE ASSOCIATION INCURS TO COMPEL YOUR COMPLIANCE WITH THE DECLARATION. YOU MUST FIRST CORRECT THE VIOLATION(S) AS DETAILED HEREIN, AND THEN REIMBURSE THE ASSOCIATION FOR ALL FEES AND COSTS INCURRED. IF YOU DISPUTE THE VIOLATION(S), YOU DO SO AT YOUR OWN RISK. IF YOU CHOOSE TO CORRECT THE VIOLATION(S) AND PAY ALL FEES AND COSTS INCURRED, CORRECT THE VIOLATION(S) FIRST, CONTACT US IN WRITING TO INDICATE YOU HAVE FULLY CORRECTED THE VIOLATION(S), AND WE WILL THEN CONFIRM THAT THE VIOLATION(S) HAS BEEN CORRECTED AND PROVIDE YOU WITH THE TOTAL AMOUNT OF FEES AND COSTS WHICH MUST BE REIMBURSED.

This is exactly what the judge calls "SUBSTANTIVELY UNCONSCIONABLE" -- but it scared enough owners into paying the demanded fees and attorney's cost. Maybe somebody should file a class action suit against this law firm in the name of all owners who paid these fees and cost -- giving in to this perceived threat!

These attorneys even went so far as to threaten with foreclosure if the demanded fees were not paid: "The lien for an Individual Assessment may be foreclosed in the same manner as any other Assessment."

As you see, a judge called these kinds of provisions in governing documents "SUBSTANTIVELY UNCONSCIONABLE" -- I still call it HIGHWAY ROBBERY!