Lawsuits are an unfortunate, expensive fact of life these days—chances are if you live long enough, you'll be involved in one to at least some degree. In the context of an HOA, a legal issue can arise between a resident and the board, between two or more residents, or between a group of residents and the board/management, just to name a few of the more common permutations. People can talk about suing or being sued, but what exactly does that mean?
Receiving a summons and complaint via certified mail or the deputy sheriff can be a terrifying moment, especially if it is unexpected. Although individual board members are not usually held personally responsible for answering lawsuits brought against the association, being served a summons can cause great consternation for any HOA. It means that a process has been set in motion, and it requires action, says Fran McGovern, of McGovern Legal Services, LLC in New Brunswick. "Doing nothing is the worst possible thing that could happen," she says, "because if service has been made and no action has been taken by the defense, the plaintiff can enter default judgment."
The process of going through a lawsuit has a few phases that should be expected, if the case actually gets to trial. According to attorney Stu Weliever of Indianapolis-based law firm Henthorn Harris & Weliever PC, once service is made, an extension will often be filed while an answer is composed. The answer is then filed along with any counter claims. Next, the discovery phase ensues. After the discovery phase is complete, the parties are usually asked to submit to mediation, which may then lead to a trial, if the mediation/arbitration doesn't solve the problem at hand. Litigation can take the form of a "bench" trial before a judge, or a jury trial.
"Discovery is the process by which each side explores in great detail the allegations made in the complaint, as well as the defenses asserted by the defendant," says Thomas Giaimo, an attorney based in Rumson who specializes in condominium and homeowner association law throughout New Jersey. "Discovery includes answering written questions under oath, (referred to as interrogatories); the production and review of documents served pursuant to a formal demand (a subpoena); as well as sworn testimony under oath (depositions)."
"There is always conflicting testimony," says McGovern. The merit of the case—the truth of the facts—is ultimately decided by the jury, or by the judge in a bench trial.