What is the name of your state? NC
Our closing attorney assured us upon closing that we did not have to belong to the Property Owners Association [POA] when we closed on the property 7 years ago. We were badgered and threatened since 2001 from our POA saying that we are members by accepting the Deed which did have the R&R's on it. We were sued and the POA lost, the magistrate stating it was barred by the 3 year Statute of Limitations. They appealed and they won in part but going back only 3 years due to the Statute of Limitations and we were told by the judge that we are now members from that point forward. We settled and paid this small portion of the total to keep it from going futher, get more expensive and potentialy losing if they got a smarter attorney [see * below].
We would never had bought the property if we weren't assured that we did not have to join a POA, that it was a voluntary membership. Our attorney, after speaking with the POA pres at closing and being told it was voluntary membership, marked the closing paperwork by crossing out the R&R's on some closing doc's and the Deed copy which we and the attorney then initialed. The original Deed, as mailed to us about 2 months after closing, shows the R&R's on there but they were X'd out as well as the state [mistake on the state since we moved from out of state]. The Deed was filed apparently before being X'd out as the one on file shows the R&R's clearly.
Our closing attorney initialy helped us by appearing as a witness on our behalf in the original small claims suite brought against us by the POA and testified that the call was made to the POA president and he was told it was voluntary. We have the original copy of the scribbled out R&R's with our intials. Our closing attny also said that if it goes to District court then he would offer to pay the amount IF we agreed. He promised us that he would be there for the appeal, again as a witness, but he never showed. Based on his word I did not have him served to appear, just made notification of the date/time/location 3 weeks in advance to which he assured us he'd be there. All I can guess is that he either figured %$@#-!# or felt he may get himself in trouble. Who knows, he won't return my calls??
My question is, since the Deed is a sealed document [*under seal extends the SOL to 10 years ~ their attorney never even considered that and we rolled the dice
] , can I sue our closing attorney for fraud or ? We DON'T want to belong to a POA and were told we did not have to. It would likely be impossible to change the Deed now so I figure I'd sue him for the costs involved, costs of the POA dues for the years ahead and and potential special assessments that could and likely will occur [3 HIGH assessents in 7 years]. This should total less than the $5k limit of small claims.
Should I just file a suite or give him the opportunity to pay up/settle prior to IF he will talk to me. He knows what he did and offered at one time to pay the POA off IF it went to disrict court. This has been an ordeal for sure.
How do I proceed?
Our closing attorney assured us upon closing that we did not have to belong to the Property Owners Association [POA] when we closed on the property 7 years ago. We were badgered and threatened since 2001 from our POA saying that we are members by accepting the Deed which did have the R&R's on it. We were sued and the POA lost, the magistrate stating it was barred by the 3 year Statute of Limitations. They appealed and they won in part but going back only 3 years due to the Statute of Limitations and we were told by the judge that we are now members from that point forward. We settled and paid this small portion of the total to keep it from going futher, get more expensive and potentialy losing if they got a smarter attorney [see * below].
We would never had bought the property if we weren't assured that we did not have to join a POA, that it was a voluntary membership. Our attorney, after speaking with the POA pres at closing and being told it was voluntary membership, marked the closing paperwork by crossing out the R&R's on some closing doc's and the Deed copy which we and the attorney then initialed. The original Deed, as mailed to us about 2 months after closing, shows the R&R's on there but they were X'd out as well as the state [mistake on the state since we moved from out of state]. The Deed was filed apparently before being X'd out as the one on file shows the R&R's clearly.
Our closing attorney initialy helped us by appearing as a witness on our behalf in the original small claims suite brought against us by the POA and testified that the call was made to the POA president and he was told it was voluntary. We have the original copy of the scribbled out R&R's with our intials. Our closing attny also said that if it goes to District court then he would offer to pay the amount IF we agreed. He promised us that he would be there for the appeal, again as a witness, but he never showed. Based on his word I did not have him served to appear, just made notification of the date/time/location 3 weeks in advance to which he assured us he'd be there. All I can guess is that he either figured %$@#-!# or felt he may get himself in trouble. Who knows, he won't return my calls??
My question is, since the Deed is a sealed document [*under seal extends the SOL to 10 years ~ their attorney never even considered that and we rolled the dice
] , can I sue our closing attorney for fraud or ? We DON'T want to belong to a POA and were told we did not have to. It would likely be impossible to change the Deed now so I figure I'd sue him for the costs involved, costs of the POA dues for the years ahead and and potential special assessments that could and likely will occur [3 HIGH assessents in 7 years]. This should total less than the $5k limit of small claims. Should I just file a suite or give him the opportunity to pay up/settle prior to IF he will talk to me. He knows what he did and offered at one time to pay the POA off IF it went to disrict court. This has been an ordeal for sure.
How do I proceed?