Judge’s Final Order – Sept. 2024 & Lawsuit Summary

It’s been nearly 5 months since our trial in May and we’re still stuck in litigation. Wondering why?  Let’s start with a brief synopsis:

2019: – An assessment for $83 per home/unit was applied, following a severe storm that resulted in damaged trees.

Dec. 2019: Our maintenance fees were raised from $36 to $93, a difference of $57, to go into effect Jan. 1, 2020. Each of these – the assessment and fee increase – were allowed by a 6th and 7th amendment that had been added to our Master Declaration by MJ Management. A community meeting resulted in agreeing to have representatives from each neighborhood in Homestead, research our options and share with the community.

Jan. 2020: Canadian immigration attorney David Andersson was invited to meet with our neighborhood representatives to review legal options. On Jan. 30, Mr. Andersson incorporated our HOA, elected himself our Board of Directors, and advised us to send the new fee amount of $93, to him, as if he was our Declarant.

May 2020: A Consumer Protection Act lawsuit was filed against our city, our management, and our owner.

Nov. 2020: Judge Olson certified our 2nd lawsuit, a Class Action, triggered by the 6th and 7th amendments. Our neighborhood representatives hired David Andersson as the attorney for our community, but without a vote or input from the community.

May 2024: Following 4+ years of divisive hearings and a 2-week trial, it was decided: 

The 6th and 7th amendments were dismissed 

The maintenance fee was returned to $36

So the lawsuit is over, right? Our class action lawyers did what they set out to do, right? The trial finalized what’s allowed and what’s not, right?  Nope. Our lawyers had other plans for Homestead’s future.

Let’s have a look at the Judge’s Final Order, which was finalized Sept. 12, 2024, based on arguments, expert testimony, and evidence presented at trial, beginning with Homestead’s history:

LAWSUIT HISTORY:

May 2020: Plaintiffs filed Consumer Protection Act against City of Lynden, MJ Management, 18 Paradise and its owner companies, one of which was Morris Chen.

June 2020: Plaintiffs dismiss Morris Chen as a party because Morris Chen was not the legal owner of Homestead. They also dismissed their RICO claim.

Comment: Why then did lawyers Andersson and Davis continue to tell us that Mr. Chen was refusing to negotiate, it was Mr. Chen who was diverting our money, and that our lawsuit was to force Mr. Chen to transfer the common open space to our HOA (which ironically was in the hands of attorney David Andersson!). If our lawyers knew Mr. Chen was not the legal owner, why go to such lengths in their emails, demand letters, website posts including a cartoon depicting him as a greedy “bad guy” when they knew he was not?

Nov. 2020: The Class Action lawsuit (result of fee increase and 6th and 7th amendments) was certified by Judge Olson. The class was defined as, “Every person or entity who is a record owner of a fee or undivided fee interest in any Lot or Condo that is subject to the Master Declaration of CCRs for Homestead.”

Sept. 2021: MJ Management and 18 Paradise could collect $36 fees but not take action against Homeowners who did not pay the $57 increase. Homeowners who sold their property would deposit the $57 difference into a court registry until a jury decided the fee amount.  Judge Freeman replaced Judge Olson to preside over our case.

Feb. 2022: City of Lynden dismissed from lawsuits.

July 2022: Mick O’Bryan and Josh Williams dismissed from lawsuit (within plaintiffs’ 3rd Amended Complaint, not as a separate motion).

Jan. 2023: Plaintiff lawyers Andersson and Davis filed their 5th Amended Complaint and reinstated Mick O’Bryan and Josh Williams as defendants in the lawsuit. (By this time, Mick and Josh were no longer legal partners/MJ Management)

Feb. 2023: A group of homeowners filed an intervention to decertify the plaintiffs’ class action lawsuit, and compel 18 Paradise and MJ Management to “maintain necessary repair work” for Homestead. The plaintiffs argued against the intervention (which included keeping Homestead maintained) and it was denied (but not dismissed) by Judge Freeman.

April 2023: Judge dismissed the plaintiffs’ claims to deprive 18 Paradise of ownership of the Common Open Space. (It was deemed a “quiet title” which meant a property owner could not be coerced or compelled to give their land to another party).

April 2024: The court dismissed the plaintiffs’ first lawsuit, the Consumer Protection Act, and dismissed Mick O’Bryan and Josh Williams as defendants.

April 30 – May 13, 2024 – Trial began, the jury was dismissed the first day by Matt Davis, and the Intervenors were allowed to represent homeowners. Claims presented at trial:

1. The validity of the 6th and 7th Amendments
2. Determine if joint maintenance fees were exclusively for Common Open Space
3. Plaintiffs’ claim that Homestead’s Declaration violated Lynden’s municipal Code Sections 19.29.020 and 090.  
4. Intervenors’ claim to decertify the class and allow homeowners a choice in their HOA

MASTER DECLARATION

Judge Freeman noted the following highlights from our Master Declaration:

1. All parcel owners are granted a perpetual license to use the Common Open Space subject to their payment of joint maintenance fees
2. As long as the Declarant (owner) owns the Common Open Space, he/she has the right to assess monthly maintenance fee
3. Declarant can raise the Joint Maintenance Fee up to 5% per year, from the prior year
4. Declarant has unconditional right to alter, modify, change, revoke, rescind or cancel any and all restrictive covenants in this Declaration or any subsequent Declaration.
5. Violation for the breach of any condition, covenant, or restriction gives the Declarant the right to proceed at law to compel compliance of the terms of the conditions. If a parcel owner is in violation of covenants, the expenses of litigation shall include attorney fees be paid to the prevailing party.
6. Our HOA will remain an “advisory committee” until there is property for the HOA to manage.
7. The Intervenors’ contention the HOA incorporated by lawyer David Andersson, and currently governed by plaintiff Tom Staehr, is “invalid and defunct.”

CONCLUSIONS OF LAW

18 Paradise is the Declarant (owner), with all Declarant rights, and owns Common Open Space and the golf course.

MJ Management had the right to increase maintenance fee if pre-approval was granted from Declarant. The court found MJ Management did not seek 18 Paradise’s permission before recording 6th and 7th amendments, therefore, they were found void.

Based on James Wynstra’s testimony at trial, as well as the Declaration’s language and intent, the Master Declaration is to be interpreted liberally. The maintenance fee is to be collected from parcel owners by the Declarant but the fee is not tied to the Declarant’s obligation to maintain the Common Open Space.

Nowhere in the CCRs is it stated the maintenance fees must be used exclusively to maintain the Common Open Space. The Declarant is charged with maintaining other common benefits like the stormwater system which benefits all Homestead.

Section 3.5 in CCRs defines the scope of the Joint Maintenance Fee but contains no reference to the Common Open Space or any other limitation. The only limitations on the fee are the initial $25 amount and a cap of 5% on any increases.

Section 3.5 (f) states the Declarant can raise the maintenance fee each year and specifically, by 5% or the percentage increase in the cost of living in Seattle/Tacoma area, whichever is greater.

The city of Lynden Ordinance does require an HOA be established for its PRD, however, the required HOA in this case would need to be “some manner of an advisory association” since it does not own Common Open Space “or other property.”

ORDER

The 6th and 7th Amendments are void “ab initio” (from the beginning)

Use of Joint Maintenance fee is not restricted to maintenance of the Common Open Space or in any other manner.

The correct amount of the maintenance fee from Jan. 1, 2019 through the entry of this Order is $36 per month.

The representation of Plaintiffs’ Counsel, Matthew Davis and K. David Andersson, terminates with respect to the class members, except as such representation limited to post-trial motions and appeal. For the purposes of communication, class members may be contacted by counsel for 18 Paradise and/or MJ Management.

Comment: The above ruling means the class action lawsuit is basically over unless Andersson and Davis are granted the right to appeal, and then we will once again be pulled in as their class. Attorneys Andersson and Davis have said they’re going to appeal, and since appeals can last 6 – 18 months, we believe they have NO intention of ending our lawsuit anytime soon.

Sept. 20, 2024: Plaintiffs’ lawyers Andersson and Davis filed a Motion for Reconsideration, asking the judge to reconsider several of his final rulings. Here are a few with our comments:

1. Regarding the lawyers incorporating Homestead’s HOA as being ruled “invalid and defunct” by Judge Freeman, Mr. Davis argues, “It was incorporated as a corporate placeholder…” He added, “…no testimony was presented (at trial) that it ever purported to be a homeowners association.” Mr. Davis called the invalid HOA a, “nonprofit corporation formed by Mr. Andersson.” 

Comment: To make sure we’re understanding their argument, Mr. Andersson’s filing Articles of Incorporation for our HOA, paying annual fees, receiving verification from the Secretary of State’s office that our HOA is now legally recorded in Mr. Andersson’s name, in no way means it’s a real HOA, but a pretend HOA??

2. Regarding the judge’s decision to terminate Andersson and Davis’ representation of the class (all of us), Mr. Davis claimed: “Class counsel (Andersson and Davis) still represents the Class, and much work remains to be completed.”  

Comment:  Mr. Davis is admitting they still have “much work” to do as our lawyers, keeping us hostage in their mandatory class action that most of us would never have joined voluntarily.

3. On the last day of trial (May 13, 2024), the Plaintiffs had the final rebuttal after each party gave their closing remarks. In response to an opposing lawyer’s comment that Mr. Davis had only called one homeowner as a witness, Mr. Davis responded, “We didn’t question homeowners because homeowners aren’t relevant.” If you take anything away from our divisive four-year lawsuit, it is this telling admission by Mr. Davis, “…homeowners aren’t relevant.”

WHAT EACH OF US CAN DO

Write letters to the Lynden Tribune Editor, Bill Helm, and let Lynden know how you feel about the lawsuit’s affect on our community, why it’s still not over after nearly 5 months post-trial, and what needs to happen.

Let your neighbors know on social media to please pray for us, and write letters to the Tribune Editor.   All of Lynden will feel the loss of Homestead if this doesn’t end soon.

Email or snail-mail (if you don’t want your email address known) our representatives to end this lawsuit. They had 4 years to prove their case, now it’s time to respect the judge’s decisions so we can all move forward. Here are addresses from google search; 7 live in Homestead, 4 do not:                            

Plaintiffs Steve & Lisa Zehm requested their contact information not be posted.

Plaintiffs Daniel & Sonja Lyons requested their contact information not be posted.                                                        

Plaintiffs Angelique & Doug Scarlett: 815 Bentgrass Way, Lynden or E: scarlettdm6@gmail.com

Plaintiff Randy Drubek: 212 W. Maberry Dr., #304, Lynden

Plaintiff Tom Staehr: 3088 Bluffs Dr., Richland WA 99354

Plaintiff Ron Saran: 720 Northern Ave., Sedro Woolley WA 98284

Lead Plaintiff Scott Hillius: 5290 Graveline Rd., Bellingham 98226  

*Plaintiff Mark Miedema moved to CA in 2020, did not find current address for him

We need every voice for this final push to accept the judge’s decision. The plaintiffs and our lawyers, Andersson and Davis, achieved what they wanted; dismissal of 6th & 7th amendments and lower fees. Why don’t they take the win and let us begin the process of restoring our community, and welcoming a new owner? Instead, they filed 11 more pages on Sept. 20, telling the judge he should change his final rulings, and they’re going to appeal.

18 Paradise offered to settle 7 times, the Intervenors arranged a settlement with confirmed attendance by Mr. Chen (plaintiffs’ requirement), and MJ’s lawyers lost count how many offers they extended – ALL were declined by plaintiffs’ lawyers. This is not a representation of our best interests, but theirs!