IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD
CAMERON BAY HOMEOWNER’S
ASSOCIATION
Plaintiff
vs.
APRIL D. GALLOP
Defendant
Case No. [ENTER CASE NUMBER]
MOTION TO VACATE DEFAULT JUDGMENT
COMES NOW the Defendant, pro se, and for its Motion to Vacate and the Brief in
support of the Motion Vacate, and states as follows:
INTRODUCTION
Defendant hereby demurs to the Warrant in Debt and Bill of Particulars of the Plaintiff,
Cameron Bay Homeowner’s Association (“CBHA”). The main grounds for this demurrer are
that Counsel for CBHA has consistently failed to produce documentation establishing CBHA as
a legitimate party of interest in this matter (i.e. possessing the requisite locus standi); that CBHA
has failed to state a cause of action upon which relief can be granted; and that CBHA has
committed a fraud upon the Court. Accordingly, the Court had no power to grant relief.
Therefore, the court should set aside and vacate the default, judgement, and order in cases
mention due to it being void on its face. The Court has inherent power to set aside a void
judgement whether or not it is void on its face or void in fact. “Courts are constituted by
authority and they cannot act beyond the power delegated to them, if they act beyond that
authority…..not voidable, but simply void, and this even prior to reversal. See Elliott v. Lessee of
Piersol, 26 U.S. 1 Pet. 328 328 (1828) Pet. 328.
FACTUAL BACKGROUND
It appears that ACS West Inc via corporate usurpation of the name CBHA has purported
the following in its Bill of Particulars, namely that it is: a homeowner’s association with a
principle office located in Richmond Virginia; regulated by the Property Owners’ Association
Act, Sections 508 through to 516.02 of Title 55 of the Code of Virginia 1 ; and authorized to
mandate the payment of an assessment ( as established by alleged Board of Directors) on every
lot owner in Cameron Bay guised as membership dues, pursuant to the amended and redacted
Bylaws dated (2017) that it asserts it is governed by.
The amendment to add Defendant’s lot to Declaration of covenants and restrictions isn’t
effective, and does not bind Defendant in any way whatsoever. Notably, “a restrictive covenant
running with the land that is imposed on a landowner solely by virtue of an agreement entered
into by other landowners who are outside the chain of privity [is void].” See Tvardek v Powhatan
Village Homeowners Assn.; 150456 (Va. 2016); see also Bally v. Wells (1769) 95 Eng. Rep. 913,
915; 3 Wils. 26, 29 (There must always be a privity between the Plaintiff and Defendant to make
the Defendant liable to an action of covenant).
On or around 2008, Defendant submitted first letter waiving themselves from the
Cameron bay homeowner’s association as allowed in covenant 19 of the CBHA Declarations and
again in 2011. The defendant then submitted another letter in 2012 waiving themselves from the
association as successor. By May 30, 2012, Defendant became record owner of the lot in
Cameron Bay, of address 6042 Walking Path Lane, Midlothian, VA 23112, whereupon an
annual assessment was purportedly made payable at $125.00 per annum by fiscal year 2015.
1 The said Section was amended to § 55.1-1800.
Defendant did not pay the said assessment (the reasons for which follow below), resulting in a
purported balance of unpaid association dues amounting to $150.00, plus $56.00 in Court costs.
The alleged Association falsely misrepresents my lot as a unit, although the County records
reflect it is in fact a lot. (Exhibit A) This isn’t a common interest community, condo, or
apartment complex. The general de facto partners of lot owners of the Cameron Bay
neighborhood are not governed by the Condominium Act.
The issues at bar herein are whether CBHA is a legitimate party of interest in this matter
(by reference to the Property Owners’ Association Act, and the Code of Virginia generally); and
whether CBHA can, by extension, impose the assessment to which the Court judgment it sought
relates, on all record owners of lots in Cameron Bay.
ARGUMENTS
CBHA IS A VOLUNTARY ASSOCIATION AND IS NOT A LEGITIMATE
PARTY OF INTEREST IN THIS MATTER, AND AS SUCH CANNOT IMPOSE
MANDATORY ASSESSMENTS ON DEFENDANT OR OTHER RECORD OWNERS OF
LOTS IN CAMERON BAY (without consent)
CBHA Sought to Recover Damages by Reference to a Covenant which Defendant
was not privy to.
Declarations are a matter of contract law.
Though CBHA has submitted its purported Declarations, which is the ruling document
and takes precedence over Articles of Incorporation and Bylaws, no covenant exists or properly
establishes that it can impose mandatory assessments on Defendant or other record owners of
lots in Cameron Bay; or in the alternative, that it generally has the power to fix, levy or charge
for assessments guised as dues or for any reason. CBHA has also not furnished Defendant or this
Honorable Court with the law(s) which would empower it to make assessments in the first place.
Per David Anderson, et al. v. Lake arrowhead civic association, inc. (No. 961284.), “[i]t is clear
that in order to qualify under the Property Owner’s Association Act, an association must possess
both the power to collect a fixed assessment or to make variable assessments and a
corresponding duty to maintain the common areas.” However the Declarations state: [ENTER
DETAILS].
Defendant avers that Cameron Bay HOA doesn’t qualify under the Property Owners
Association. According to the Court in Dogwood Valley Citizens Association Inc v Shifflet Jr.,
Record No. 031053, a property owners’ association within the meaning of the Property Owners’
Association Act must have a document, recorded among the land records of the jurisdiction
where some property of the association is located, that expressly requires the association to
maintain the property. Further, this duty must be expressly stated in the recorded documents and
may not be inferred or implied.
While the CBHOA Articles of Incorporation states that they can charge pursuant to the
Declarations (Exhibit), the amended Bylaws are inconsistent with Declarations of covenant and
restrictions, and thus can’t stand. See Virginia Code § 13.1-884, et seq.
Any Damages Sought by CBHA Must Relate to Common Areas, which it Never
Designated for Cameron Bay’s Declarations
As far as Defendant is aware (based on review of Declarations) CBHA has never
designated any area of Cameron Bay as a “common area,” and it has not provided any evidence
of such designation to it or this Court. This is critical, because Code of Virginia § 55.1-1805
states that,
Except as expressly authorized in this chapter, in the declaration, or otherwise
provided by law, no association shall (i) make an assessment or impose a
charge against a lot or a lot owner unless the charge is a fee for services
provided or related to use of the common area or (ii) charge a fee related to the
provisions set out in § 55.1-1810 or 55.1-1811 that is not expressly authorized
in those sections.
The area intended for the Cameron Bay Homeowner’s Association was rendered ‘R9” lot
meaning single family residence. Therefore it can’t be used as common area for commercial use
or to obtain or utilize payment. (Exhibit B)
CBHA Did Not Follow Proper Quorum Procedure
The Property Owner’s Association Act (the “Act”) applies to “developments
subject to a declaration, as defined herein, initially recorded after January 1, 1959, associations
incorporated or otherwise organized after such date, and all subdivisions created under the
former Subdivided Land Sales Act (55-336 et seq.)” See Virginia Code § 55-508. The said Act
defines a “property owner’s association” as “an incorporated or unincorporated entity upon
which responsibilities are imposed and to which authority is granted in the declaration” Virginia
Code § 55-509. CBHA’s purported Declarations and other governing documents plainly and
simply do not possess provable quorum certification to verify that any meeting was ever held
wherein proper voting procedures were followed with respect to the imposition of assessments
on Cameron Bay’s lot owners. Defendant avers that the meeting to vote on Board of Directors
failed to meet quorum. Therefore no individual lot owner has the legal authority to operate. See
Virginia Code § 13.1-849, et seq.
CBHA Was Terminated
Following the termination of CBHA on December 1, 2003 and November 30, 2013
(Exhibits A and B), the related Notice of Termination of Corporate Existence stated, inter alia,
that CBHA “was automatically terminated as of those dates and no longer authorized to transact
business.” No proof of quorum certificate presently exists to show that a successor, interim
Board to it was assigned that could impose such assessments in its stead; or that documents
aimed at reinstating CBHA (backed by proof of quorum certificate) were ever filed.
CBHA HAS FAILED TO STATE A CAUSE OF ACTION UPON WHICH RELIEF
CAN BE GRANTED.
Defendant’s position is that CBHA has no legitimate interest in this matter, and therefore
cannot state a claim upon which relief can be granted as an illegitimate party herein. In fact,
CBHA’s failure in this regard is such that it is in violation of the Fair Debt Collection Practices
Act, 15 U.S. Code § 1692e, which states,”[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt. Without
limiting the general application of the foregoing, the following conduct is a violation of this
section,” and then states at (2) (A), “[t]he false representation of the character, amount, or legal
status of any debt…” CBHA further violated the Fair Debt Collections Act by not validating the
alleged debt cooperatively with the Defendant. 15 U.S. Code § 1692g (a) states in that regard
that, “[w]ithin five days after the initial communication with a consumer in connection with the
collection of any debt, a debt collector shall, unless the following information is contained in the
initial communication or the consumer has paid the debt, send the consumer a written notice
containing…” and then states at (1) to (5) the required contents of the written notice. 15 U.S.
Code § 1692g (b) further outlines the procedure for disputed debts (the likes of which CBHA did
not follow herein). Notwithstanding the foregoing, Defendant’s position is that since CBHA is,
inter alia, an illegitimate party in this matter, it is unable to truthfully claim that Defendant is
indebted to it, whether in the amount of $150.00 or at all.
CBHA doesn’t qualify under the Property owner’s Association and without the authority
to make any assessment and is liable for any amounts collected under the guise of such authority.
They are in violation of the Fair Debt Collection (“FDCPA”) by obtaining a default judgement.
The Court in Brennan v. Spears observed that the FDCPA is a broad statute that was designed to
protect consumers from a host of unfair, harassing, and deceptive debt collection practices
without imposing unnecessary restrictions on ethical debt collectors. See also Blakemore v.
Pekay, 895 F.Supp. 972, 977-78 (N.D.Ill.1995) (also observing that Act was designed to reach
“very broad spectrum of abuses”).
It is a well-established principle that restrictive covenants are not favored and must be
strictly construed. See Anderson v. Lake Arrowhead Civic Association, Inc., 253 Va. 264, 483
S.E.2d 209 (1997). The Courts resolve matters of doubt and ambiguity in favor of the free use of
property. Id. See also Friedberg v. Riverpoint Bldg. Com. 239 S.E.2d 106 (1977) (observing that
valid covenants restricting the free use of land, although widely used, are not favored and must
be strictly construed and the burden is on the party seeking to enforce them to demonstrate that
they are applicable to the acts of which he complains).
Further, the Court in Mid State Equip Co v Bell 217 Va. 133 (1976) observed that where
the Court observed that the intent of the parties, especially that of the common grantor,
determines the existence of a restrictive covenant. The Court further observed that in ascertaining
the parties’ intention, the Courts examine the words used in the restriction, the plats, the deeds,
such surrounding circumstances as the parties are presumed to have considered when their minds
met, the purpose to be achieved by the covenant, and the use of the property, keeping in mind
that such a restriction is not merely for the grantor’s benefit but that it assures purchasers that
property will be devoted in a specified manner to the intended purpose.
Under common Law of easements, Cameron Bay HOA is a voluntary association that
doesn’t qualify under the POAA. Even if it believes it can make assessments against the property
owners as owners of the dominant estates with a duty to maintain the easements over the servient
estate owned by Cameron Bay HOA, it can’t. The open space/Common area was already
designated as R9 (residence). The owner of the dominant estate may fulfill this obligation by
conducting the maintenance (him or herself) or by voluntarily contributing to the maintenance
cost of the owner of the servient estate. See Anderson v. Lake Arrowhead Civic Association, Inc.,
253 Va. 264, 483 S.E.2d 209 (1997).
Defendant is not a member of the Association and is therefore not subject to the
Amendment to add his lot. Defendant avers that the amendment is not effective, and is null and
void. Further, as successor Defendant didn’t amend the Declaration to add the lot. Further, a
letter to waive lot has been submitted as outlined in covenant 19. And no right to refuse exists.
Accordingly, Defendant avers that this Honorable Court lacks subject matter jurisdiction to hear
Plaintiff’s case.
CBHA HAS COMMITTED FRAUD UPON THE COURT BY PROVIDING
COUNTERFEIT, FALSE AND MISLEADING DOCUMENTATION AND EVIDENCE
TO PROSECUTE A CLAIM THAT IS FRAUDULENT ON ITS FACE.
CBHA (via ACS West Inc who usurped named and individual lot owners) has violated
the “clean hands” equitable principle and consequently has acted in bad faith, by proffering
documents which the Defendant submits are counterfeit, false and misleading in their substance.
It is on this basis that the Defendant demurs to the granting of res judicata to CBHA by the
Court. Though claims are ordinarily barred by res judicata in circumstances where a prior claim
or action raises identical factual/legal issues, and involves the same parties, the Defendant will
rely on collateral estoppel to have the judgment reversed or vacated. Instances of fraud are a
noted exception to res judicata being applicable, as enunciated by the Supreme Court in Riehle
v. Margolies, 279 U.S. 218, 225, wherein it stated that, “for at least ninety years that only in the
absence of fraud or collusion does a judgment from a court with jurisdiction operate as res
judicata.” Accordingly, the Defendant, in pursuit of their legal rights, has challenged the Court’s
judgment in a new/original proceeding in accordance with the definition of “collateral attack” as
was established in Morrill v. Morrill, 20 Ore. 96 (1890), where the Court defined it as “…any
proceeding which is not instituted for the express purpose of annulling, correcting or modifying
such decree.”
THE COURT HAS IGNORED OR OTHERWISE FAILED TO CONSIDER THE
RELEVANT FEDERAL AND STATE LAWS THAT SUPPORT THE DEFENDANT’S
POSITIONS IN THIS MATTER, TO THE EXTENT THAT THE DEFENDANT IS OF
THE VIEW THAT THE JUDGE ON RECORD OUGHT TO RECUSE THEMSELVES
IN THE INTERESTS OF JUSTICE.
Defendant intends to establish on a balance of probabilities that the presiding Judge is
exercising bias and/or prejudice against them. The said Judge appears to have ignored the
provisions of, among other sources of law, all statute and case law referred to herein, which,
when combined with the facts of this case, plainly and simply point to the Defendant being in the
right. Accordingly, Defendant will assert that, from an objective standpoint, “the probability of
actual bias on the part of the judge or decisión-maker is too high to be constitutionally
tolerable…” See Rippo v. Baker, 580 U. S. __ (2017). Additionally, it is worth noting that
Berger v. United States (1921) 255 U.S. 22 has made it clear that the standard for recusal is not
based on the judge’s personal perspective of their own impartiality (or lack thereof), nor does
there need to be an actual bias at play—the test is whether an individual would be reasonably
doubtful of a judge’s impartiality, having been appraised of all the facts of the case over which
that Judge is presiding. Defendant’s position is that, in the circumstances, reasonable doubt can
be inferred as to the Judge’s conduct of this case.
CONCLUSION
Given the foregoing, Defendant requests that this Honorable Court grant their Motion to
Vacate the Default judgment; reverse and remand the order granting res judicata and
additionally, that it recuses Hon. Judge Steven C. McCallum in this proceeding and assign a new
Judge herein.
Dated: _____
Respectfully submitted,
APRIL D. GALLOP
CERTFICIATE OF SERVICE
I APRIL D. GALLOP certify that on this date [ENTER DATE], I mailed, via United
States Mail, postage prepaid, email this document to the following counsel on record:
[ENTER ADDRESS]
Respectfully submitted,
APRIL D. GALLOP
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