Legal Thriller: HOA Wire, a Courtroom Drama (Brent Marks Legal Thrillers Book 3), page 3
“This is supported by the legislative intent behind the statute. The legislative history of the sections is set forth in the Legislative Counsel’s Digest, which are cited in my brief. According to that legislative history of the bill and the plain meaning of the statute itself, personal service of notice of the decision to foreclose upon the owner/occupier is required as a condition of the right to foreclose. Without that personal service, the foreclosure right does not arise, no matter what.”
“Ms. Green, do you wish to be heard?”
“Yes, Your Honor. The statute is clearly ambiguous. It is obviously not the best written statute. It specifies that service by made pursuant to Article 3, and substituted service is one of the methods to effect personal service under Article 3. The Association is in complete compliance.”
“Thank you, Ms. Green.”
“Your Honor, may I be heard please on this point?”
“Of course, Mr. Marks.”
“Personal service is not effected by substituted service. They are two separate kinds of service specified in Article 3, and the statute clearly requires personal service. If you look at the legislative history, you will see that these protections were put into the Davis-Stirling Act to prohibit a homeowners’ association from taking a resident’s property for a relatively small assessment bill. The legislature clearly intended foreclosure to be a method to force the collection of delinquent assessments, not to dispossess residents of their property.
“The reason for the personal service to be in accordance with Article 3, Section 415.10 is to give notice of a legal process in order to comply with the principles of due process. The Fourteenth Amendment to the United States Constitution provides that ‘no state shall deprive any person of life, liberty or property without due process of law.’ The legislative history of the amendment creating Section 1367.4, plainly requires the HOA board to provide personal service to an owner/occupant of its decision to foreclose as a condition of foreclosure, which is a taking of property authorized by the state. Notice is a concept of due process, and since it required that notice to be given by personal service, as opposed to the other methods of service specified in the Code of Civil Procedure, the Legislature plainly prescribed the highest form of notice.
“The purpose of such service statutes is to assure that the highest form of due process is satisfied. Clearly, since the statute specifies personal service of the board’s decision is a precondition of foreclosure, the notice must be personally served before the commencement of any foreclosure proceedings, to allow the homeowner notice and the opportunity to defend against them.”
“Thank you both. The matter being submitted, I am ready to rule. I think the statute clearly says that the decision to foreclose has to be made 30 days before any public sale, and this was done.”
Brent was immediately deflated. He had lost, and Nancy would have to take her chances with the Bankruptcy Court.
“But,” continued Judge Jones, “I think that the statute clearly requires personal service of the notice of the board’s decision – not substituted service – so I am going to grant the motion for a preliminary injunction against foreclosure pending the trial on this matter.”
“Thank you, Your Honor,” said Brent, relieved.
“Thank you, Your Honor,” said the defeated Lydia Green.
Brent headed out of the courtroom, activating his cell phone to call Nancy and tell her the good news.
CHAPTER TEN
While Brent was celebrating his victory with Nancy, Detective Roland Tomassi was making the rounds, questioning each of Barbara Densmore’s neighbors. None of them had any kind words for Barbara. As he thumbed through his notes, an old VW van with a surfboard on top of it pulled into the driveway next door to Barbara’s townhome. As Tomassi approached the driver, a long haired blond man wearing flower patterned baggies and no shirt exited the car and began untying his surfboard from the roof rack.
“Hello!” called out Tomassi, as he approached.
“Sup dude?” Keith Michel greeted him.
“I’m a police detective. Name’s Detective Tomassi. Do you mind if I ask you a few questions about your neighbor, Barbara Densmore?”
“It’s a free country,” responded Keith Michel. “Did she croak?”
“Why do you ask?”
“Dude, she didn’t look like she was in too good ‘a shape when they took her out in the ambulance.”
“You saw them take her out?”
“Yeah.”
“You don’t seem to be too concerned about her.”
“Dude, she’s a pain in my ass. She’s a pain in everyone’s ass. Well, if you live here, that is…”
“I’m investigating her death.”
“Oh, so she did croak? Righteous!”
“You’re happy that she’s dead?”
“Dude, I didn’t kill her or anything, but I’m not gonna cry either. She was always so aggro, you know?”
“Aggro?”
“Yeah, you know, not cool, always messin’ with my vibe. Whenever I was all stoked and amped to go out, she’d come over and write me a ticket or some shit. She was a downer, man.”
“I see. Can you tell me how long you had been at home before you saw the ambulance come for her?”
“I dunno. Man, I don’t have a time clock or anything.”
“Rough estimate.”
“Man, I guess two, three hours?”
“Did you notice anything unusual over at her place during those two or three hours?”
“Dude, I don’t snoop on her or nothin’. I was just lookin’ out the window and saw the ambulance, is all. Oh, and I saw Frances Templeton, the other HOA Nazi, over there banging on Barbara’s door.”
“Was that the only time that day you saw Frances over there?”
“Yeah.”
“And when was that?”
“Dude!”
“Were you having any problems with Ms. Densmore?”
“Just the usual stuff. She didn’t like my curtains. You know, shit like that.”
“Yeah. Do you mind if I come in and take a look around?”
“Dude, you got a warrant? Knock yourself out.”
“How about if I take a look in your car instead? I’ll bet I could find some marijuana in there.”
“Dude, I’ve got a scrip for that, uh, for my medical condition.”
“I’ll bet you do. What’s your name?”
“Keith Michel.”
“Alright, Mr. Michel, here’s my card. In case you think of anything else, just give me a call.”
“Thanks, dude,” said Michel, taking the card. “I’ll be sure to file this in the appropriate place,” he added, smiling an ear to ear mouthful of yellow teeth.
As Tomassi turned away, Michel added, “Might want to check out the couple at 4440 Orange. They hated Barbara’s guts.”
“Thanks, I will.”
* * *
At 4440 Orange, Jean Goldstein looked through the peep hole on her front door.
“Can I help you?” she asked through the door.
“My name is Roland Tomassi, Detective with the Santa Barbara County Sheriff.”
Jean opened the door. “How can I help you, Detective?”
“I’d like to ask a few questions about Barbara Densmore.”
“What’s she done this time?”
“She died.”
Goldstein frowned.
“Died?”
“Yes, ma’am. I’m investigating her death.”
“I hope you don’t think we had anything to do with it?”
“Just talking to the neighbors, ma’am. May I come in?”
“Of course.”
Jean led Detective Tomassi into her living room.
“Can I offer you a drink, Detective?”
“No, thank you.”
Detective Tomassi sat down on the couch in the hodge-podge of a living room, filled with family photographs of different sizes and shapes, and pulled out his notebook. Jean was in her late 40’s, with greying chestnut hair and amber eyes. Tomassi could see that, in her day, she must have been quite attractive, but, to him, she mostly looked sad.
“I understand you’re currently in litigation with the Homeowners’ Association?”
“Yes. Over the most ridiculous thing. A tree.”
“A tree?”
“My husband and I planted a Big Tooth Maple in the front yard to honor the life of our son, Thomas.”
“Thomas is deceased?”
Jean’s lip quivered. “At sixteen. We lost him in a tragic accident.” Her eyes welled up with tears.
“That him?” Tomassi asked, pointing to a picture of a young boy in a silver frame on the coffee table. Jean nodded, and wiped the tears from her eyes with her fingers.
“I’m sorry for your loss, ma’am.”
“Thank you, Detective. I don’t think it’s something that anyone can get used to, no matter how much time passes.”
“I suppose not, ma’am. I can’t imagine losing a child.”
“We never thought…Anyway, Barbara gave us a ticket to take down the tree because we didn’t go through the landscape committee for pre-approval.”
“And you didn’t want to remove the tree.”
“Of course not. But Barbara wouldn’t let it go. Her rules are so – were – so important to her.”
“Ma’am, do you mind if I take a look around?”
“Am I under arrest?”
“No, nothing like that. Just asking your permission for a voluntary search.”
“Sure, go ahead. I have nothing to hide.”
“Thank you, ma’am.”
CHAPTER ELEVEN
Tomassi was exhausted. After every interview, he turned up a new possible suspect. It seemed that Barbara Densmore was more hated in Orange Grove than Osama bin Laden. Tomassi couldn’t arrest every resident in Orange Grove. He had to retrace his steps. Gathering his field deputy’s notes, he decided to pay a visit to Frances Templeton. Templeton had called the station, not to complain, but to report that she had a lead.
“Detective. Did you come to apologize?”
“No ma’am. Just to go over a few details on your lead, if you have the time.”
“Well alright, come in then.”
Frances must have been the type of person for whom everything had to be in order. Her house was so neat, it appeared that nobody lived there. Typical control freak, thought Tomassi.
“How can I help you, Detective?”
“You told Deputy Williams that Barbara had words with one of the residents. A Nancy…”
“Haskins.”
“Yes, Nancy Haskins. What exactly did you see, Ms. Templeton?”
“Well, Barbara was making her usual rounds.”
“Rounds?”
“Yes, enforcement rounds. We both do them; you know, looking for violators.”
“You’re talking about a neighborhood watch program?”
“Goodness no, we have that too, but I’m talking about Code violations.”
“Code violations, ma’am?”
“You know. Violations of the regulations of the Homeowners’ Association. We have to protect our property values, you know?”
“I see. So Barbara was making her rounds, and?”
“She was aggressed by Haskins. Barbara tried to give her a citation for an overgrown lawn and Haskins ran into her house, yelling ‘shove your ticket up your…’ well, you know…and she gave her the finger!”
“That’s hardly a motive for murder, ma’am. In fact, as I understand it, Ms. Densmore was not a very loved personality in the neighborhood.”
“You just go talk to her. You’ll see.”
“I will ma’am, thank you.”
* * *
When Tomassi arrived at the home of Nancy Haskins, he knocked on the door and was about to give up, when he heard a voice from inside, along with the sounds of a little dog yapping.
“Who is it?”
“Detective Roland Tomassi, Santa Barbara County Sheriff.”
“Show me your badge, please.”
Tomassi pulled out his wallet and held the badge in front of the peep hole. The door opened, and there stood a woman who looked to be in her 70’s who could have passed for Tomassi’s mother, with a little Chihuahua jumping and scratching at her pants.
“Ms. Haskins?”
“Mrs. Haskins. You can call me Nancy. Would you care to come in?” she asked, with a pleasant smile, and stood aside.
“Thank you.”
Once inside, Tomassi scanned the townhome. It seemed comfortable and homey. He expected Nancy to offer him some home-baked cookies.
“Would you like to sit down, Officer?”
“It’s Detective, actually. Thank you,” he said, taking a seat in one of the two old fashioned cushy arm chairs. Nancy took a seat on the couch across from him. “I’m investigating the death of one of your neighbors, Barbara Densmore.”
“I heard about that.”
Nancy did not appear to show any remorse at all, but maybe that had been her initial reaction when she had heard the news. Then again, Tomassi had not been met with heartfelt sympathy from any of the neighbors he had interviewed.
“Can I get you something? Maybe some tea or coffee?”
Here come the cookies. “No thanks, ma’am. I won’t be long.”
“I understand the Homeowners’ Association is foreclosing on your house.”
“Yes, but they actually suffered a major setback two days ago, when we won against them in court.”
“I see. One of your neighbors, Frances Templeton, said you had words with Barbara not too long ago. Can you tell me about that?”
“Frances, huh? She could be Barbara’s twin. Am I a suspect or something?”
“No ma’am, this is just a routine interview.”
“I see. Okay. I don’t know what you call it, but I was constantly hiding from Barbara’s process servers, so when she called to me as I was going inside my house, I ran inside quickly because I thought it may be a trick.”
“I see. And do you remember what you said to her?”
“Not really. She was trying to give me another one of her tickets. She writes them to everyone, and I wasn’t interested in it. I have a whole collection of them.”
Tomassi talked with Nancy for a while, and felt relatively comfortable in scratching her off the suspect list. Still, he took a shot at a routine search, like he had done with the others.
“Do you mind if I look around, ma’am?”
“I thought I wasn’t a suspect. Am I being arrested?”
“You’re definitely not, ma’am. I just need to cover all the bases with every interview.”
“I don’t need a lawyer, do I?”
“Ma’am, it’s your right to call your lawyer, but, just between you and me, I don’t think you need to.”
“And the others agreed?”
“Some did, some didn’t. It’s completely voluntary.”
“Well, I suppose, but you’re not going to find anything.”
“Thank you, ma’am.”
* * *
Tomassi actually felt guilty looking through the lady’s house, so he made it a quick, cursory search.
“Just have to look in the garage, and then I’ll be done,” he said to Nancy, as he opened the door to the garage.
“It’s just a garage.”
Tomassi entered the garage and turned on the light. He looked around quickly, and started to leave, but out of the corner of his eye, he noticed the light glinting off some crumpled glossy plastic which was sticking out of one of the trash cans. He pulled out his handkerchief and examined it, and noticed it was covered with a grayish white powder. He also noticed a gold package of flower food that had been ripped open. He carefully put all of it in an evidence bag, and left the garage.
“What’s that?” asked Nancy.
“I found it in your garage, in the garbage. Do you have any fresh flowers in the house?”
“No. And I’ve never seen that plastic wrap before. It was in my garbage?”
“Yes ma’am. Do you always leave your garage side door unlocked, ma’am?”
“I’ve been forgetting to lock it lately since I won the case. I guess I let my guard down. Do I need a lawyer?”
“That’s up to you, ma’am. As I said, I’m not arresting you, but I still have to get this analyzed.”
“Oh, my!”
Nancy frowned, and put her hand on her forehead. Tomassi felt bad, but he was a detective first, and this was his only lead. He would have the lab analyze it right away and it should clear the matter up.
CHAPTER TWELVE
Brent was still high from the court victory when he got the call from Nancy.
“Slow down Nancy…what?”
“They think I murdered Barbara Densmore.”
“Where are you?”
“I’m home. The Detective just left. He searched my house…”
“Did he ask permission?”
“Yes.”
“And you agreed?” asked Brent, raising his voice.
“Of course, Brent. I had nothing to do with Barbara’s death.”
“Unfortunately Nancy, it doesn’t ever really matter what the truth is. Only what they think it is. Now take a deep breath and let’s go over this step by step.”
Brent knew that anyone could be convicted of anything. It didn’t really matter if you were guilty or not. If they decided to pin it on you – you were guilty – period. After Nancy unloaded her story, she felt better, and agreed not to talk to anyone unless she talked to Brent first.
