-- Monday, May 18, 2009 --
HEADLINE -
DID YOU KNOW... WHY THE CURRENT AND PAST BOARDS/OFFICERS ARE ILLEGALLY
ELECTED???
The Fountain Court Bylaws state in part:
ARTICLE III, BOARD OF DIRECTORS.
Section 1. NUMBER AND QUALIFICATION.
"The Board Of Directors shall be composed of three (3) persons, all of whom shall be Unit Owners or spouses of Unit Owners, Mortgagees (or designees of Mortgagees)..."
Section 2. POWERS AND DUTIES.
"The Board Of Directors shall have all of the powers and duties necessary for the administration of the affairs of the Unit Owners Association and may do all such acts and things as are NOT by the Condominium Act, the Declaration or by these Bylaws REQUIRED to be exercised and done by the Unit Owners Association..."
Section 3. ELECTION AND TERM OF OFFICE, states in part:
"(a) At the first annual meeting of the Unit Owners Association, the term of office of one (1) member of the Board Of Directors shall be fixed at three (3) years, the term of office of one (1) member of the Board of Directors shall be fixed at two (2) years, and the term of office of one (1) member of the Board of Directors shall be fixed at one (1) year. At the expiration of the initial term of office of each member of the initial Board of Directors, a successor shall be elected to serve for a term of three (3) years...."
Section 15. LIABILITY OF THE BOARD OF DIRECTORS, OFFICERS, UNIT OWNERS AND UNIT OWNERS ASSOCIATION, states in part:
"(a) The officers and members of the Board of Directors shall not be liable to the Unit Owners Association for any mistake of judgment, negligence or otherwise EXCEPT FOR THEIR OWN INDIVIDUAL WILLFUL MISCONDUCT OR BAD FAITH.
ARTICLE IV, OFFICERS (in part)
Section 1. DESIGNATION. The principal officers of the Unit Owners Association shall be the President, the Vice President, the Secretary and the Treasurer, all of whom shall be elected by the Board of Directors. The Board of Directors may appoint an assistant treasurer, an assistant secretary and such other officers as in its judgment may be necessary. The President and Vice President shall be members of the Board of Directors.
Section 2. ELECTION OF OFFICERS. The officers of the Unit Owners Association shall be elected annually by the Board of Directors at the organization meeting of each new Board of Directors and shall hold office at the pleasure of the Board of Directors.
Section 6. SECRETARY. The Secretary shall keep the minutes of ALL meetings of the Unit Owners Association and of the Board of Directors; have charge of such books and papers as the Board of Directors may direct; maintain a register setting forth the place to which all notices to Unit Owners and Mortgagees hereunder shall be delivered; and in general, perform all the
duties incident to the office of secretary of a non-profit corporation organized under the Louisiana Not-For-Profit Corporation Act.
Section 7. TREASURER. The Treasurer shall have the responsibility for Unit Owners Association funds and securities and shall be responsible for keeping full and accurate financial records and books of account showing all receipts and disbursements, and for the preparation of all required financial data; and be responsible for the deposit of all monies and other valuable effects in the name of the Board of Directors, the Unit Owners Association or the Managing Agent, in such depositories as may from time to time be designated by the Board of Directors; and, in general, perform all the duties incident to the office of treasurer of a non-profit corporation organized under the Louisiana Not-For-Profit Corporation Act...."
As you see in Article IV, Section 2, the Officers (President, Vice President, Treasurer and Secretary) SHALL be elected by the Board of Directors, NOT the Unit Owners... meaning that NONE OF THE PAST SIX YEARS ANNUAL OWNER'S MEETINGS ELECTIONS WERE HELD PROPERLY. Since the Board and Officers were not legally elected, then anything and everything they've done are also NOT LEGAL.
Here's the proof...
(a copy of all of the below referenced documents are available for download if you visit http://thefountainofinformation.blogspot.com/ and click the FileFront link near the top of the page)
In the monthly "Management Report" for the "Month of November, 2003" , it states in part, "... There was a vote for Vice President for a 3 year term with only one nominee, Fred Rapp, Unit #68. Prior to the vote the President asked if there were any nominations from the floor. There were none. The vote for Fred Rapp was unanimous. It should be noted that there was not a quorum for this Annual meeting and as a result the VP vote did not have a quorum. President Mirza explained that the Condo Document and the By Laws did not address such a situation, and therefore made the decision to validate the vote for VP. President Mirza advised that Management will consult with an attorney for a legal opinion...".
Now, lets examine what the above paragraph is saying. First, the Unit Owners ARE NOT ALLOWED to vote for Officers... only for Board Members. See Article III, BOARD OF DIRECTORS, Section 3., ELECTION AND TERM OF OFFICE for how the Unit Owners shall elect the Board of Directors; and then see Article IV, Section 2., ELECTION OF OFFICERS, for how the Board of Directors shall elect/appoint the Officers. Board Members are elected by the Owners for three year terms. Officers are elected/appointed by the Board of Directors, for one year terms. NEITHER OF THESE TWO VERY SIMPLE SECTIONS OF THE BYLAWS HAVE BEEN FOLLOWED FOR AT LEAST THE PAST SIX YEARS, MEANING THAT NONE OF THE BOARDS OR OFFICERS HAVE BEEN LEGALLY ELECTED FOR AT LEAST THE PAST SIX YEARS... meaning NOTHING that has been done for the past six years is legal... meaning the changes to the Rules aren't legal (which we already know wasn't legal since they didn't let the owners vote), meaning the hiring of Alcor isn't legal, meaning the illegal fines, threats and lawsuits aren't legal, etc., etc., etc.
After the above illegal election, the so-called Board Of Directors, was comprised of a so-called elected President Sultan Mirza, a so-called elected Vice President Fred Rapp and a so-called elected Secretary/Treasurer Ronald Breath. These three, while probably trying to do a good job for Fountain Court, continued to follow bad "professional management by Chet Hingle" advice and/or bad legal advice and continued to do things ILLEGALLY.
In the "Management Report" for the "Month of January, 2005", it ends with a notice, IN ALL CAPS, saying, "PLEASE REMEMBER THE OWNER'S MEETING ON WEDNESDAY, FEBRUARY 16, 2005, 7:00 P.M. IN THE FRONT BUILDING RECREATION ROOM. THE AGENDA IS TO CHANGE THE VOTE REQUIREMENT TO 50% FROM 80%, SAME AS LAST MEETING. IF YOU CAN'T MAKE THE MEETING, PLEASE SEND IN YOUR PROXY WHICH WAS LEFT WITH YOU. IF YOU CAN'T LOCATE YOUR PROXY SLIP, CALL THE OFFICE AND ONE WILL BE DELIVERED TO YOU.
There are TWO MAJOR problems with this proposal. First, NONE of the previous illegally elected Boards/Officers have ever properly notified any of the mortgagees of any of the annual owner's meetings or special owner's meetings, as required by the Condo Documents. Second, as previously reported in a recent "Did You Know?" column, mortgagees would have to give 100% approval, in writing to any "material change" to the Condo Documents and since they were never notified, mortgagees were subsequently never asked to give their 100% approval for the change from 80% to only 50% substantially lower voting standards. There is a reason that the Louisiana Condo Act calls for at least a 77% vote of ALL OWNERS, saying YES, before the Condo Documents can be changed and there is a reason that there is an even higher standard of 80% in the Fountain Court Condo Documents... this is to protect ALL OF THE OWNERS from a runaway, illegally elected/appointed Board and/or Officers from trying to infringe on the rights that are given to each owner. There is also a reason that 100% of mortgagees have to give their written consent to materially or substantially change the Condo Documents.
In the "Management Report" for the "Month of February, 2005", it states, in part, "... Congratulation again on having a quorum and passing the resolution at hand at the meeting, February 16, 2005. As mentioned, many condominium complexes have been striving for many years unsuccessfully to amend their Condo Documents as Fountain Court has...."
The MAJOR PROBLEM, once again, is that the so-called elected Officers calling themselves the Board did not legally and properly notify ALL of the mortgagees and get their 100% written approval for this "material change" to the Condo Documents... so it simply is NOT LEGALLY DONE... not just because the legal notice was not sent to the mortgagees but because the
Officers/Board were not even legally elected pursuant to the Condo Documents.
In the "Management Report" for the "Month of February, 2006", it states, in part, "... The deferred Annual Owner's Meeting will be held Wednesday, April 26, 2006 at 7:00 P.M.... There will be a vote for the position of Board of Director/President. ANY UNIT OWNER MAY SUBMIT TO THE SECRETARY, DON GAUTHREAUX, UNIT #39 BEFORE MARCH 26, 2006, A NOMINATING PETITION... FOR THE VACANCY OF BOARD OF DIRECTOR/PRESIDENT... Our insurance agents and attorney will be invited."
Once again, they are asking the owners to vote for an Officer/Board Member at the same time, in violation of the above clearly written instructions on how the Board shall be elected by the owners, for three year terms, and then the Officers shall be appointed for one year terms by a duly elected Board. Unfortunately, Fountain Court has not had a duly elected Board in many years and even the illegal Boards have not followed the Condo Documents where they pertain to the Board electing/appointing Officers for their one year terms.
I have the actual NOTICES that have gone out for nearly every Owner's Meeting for the past six years and the NOTICES parrot the same illegal language. Even the last two NOTICES that Alcor has sent out for the 2008 Annual Owner's Meeting and the May 14, 2009, Special Owner's Meeting, he also references illegally electing a new Officer/Board member, so even though you all are paying him twice as much as previous managers, he is giving you all the same crappy so-called professional advice. His crappy so-called professional advice has led to many illegal rules, fines, threats, lawsuits, etc., costing the owners tens of thousands of dollars... money that should be used to repair the crumbling walls, leaking roofs, breaking water lines and failing sewer lines.
DID YOU ALSO KNOW??? that when Alcor took over, FCCA had $175,000.00+ in the Edward Jones account and still had that amount of money as of September, 2008? In the hand-out given at the May 14, 2009 Special Owner's Meeting, the Edward Jones Account is now down to $36,798.00... MEANING AROUND $140,000.00 IS GONE FROM THAT ACCOUNT. UNDER ALCOR AND YOUR CURRENT ILLEGALLY ELECTED BOARD, FCCA IS SPENDING MONEY LIKE A BUNCH OF DRUNKEN SAILORS... (no offense to drunken sailors intended)... AND AT THE CURRENT RATE, THE EDWARD JONES ACCOUNT WILL BE DEPLETED PRIOR TO THE ANNUAL OWNER'S MEETING IN NOVEMBER, 2009, AND AT THAT POINT, THEY WILL ASK YOU FOR ANOTHER INCREASE IN YOUR CONDO DUES TO COVER THEIR SPENDING SPREE. IN THE BALANCE SHEET HAND-OUT, THEY EVEN SHOW THE "NET INCOME" AS BEING A NEGATIVE $56,689.23, SO FAR THIS YEAR [indicated by "Net Income (Loss) - (56,689.23)] AND THIS FIGURE IS ONLY A Y-T-D (Year To Date) FIGURE. AT THEIR CURRENT RATE OF DRUNKEN IRRESPONSIBLE SPENDING, FOUNTAIN COURT CONDOS WILL BE BANKRUPT BY THE END OF THE YEAR.
In conclusion, I hope and pray that enough of the owners will start to get involved... including becoming co-plaintiffs in our lawsuit against the FCCA to force FCCA to start following it's own Condo Documents and start doing things legally around here. There are many owners who are active right now, but unfortunately, many of them are blindly following the illegal activities of the current illegally elected Officers/Board so those owners are not of much help to the owners who want things to start being done legally and proper around FCCA.
Until next time, let "The Fountain Of Information" flow!
Lenny Vasbinder, Editor
TheFountainOfInformation@gmail.com
http://www.thefountainofinformation.blogspot.com/
Cell-504-621-1870 eFax-413-318-0742
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Lenny Vasbinder NHSNOLA@gmail.com
Cell-504-621-1870 Fax-413-318-0742
http://www.neighborhoodhomeservices.com/
P.O.Box 74031, Metairie, LA 70033-4031
Handyman Services, Lawn & Garden Care, Residential Contractor, General Cleaning & Trash Hauling, Etc.
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