IN THE GENERAL DISTRICT COURT OF CHESTERFIELD
CAMERON BAY HOMEOWNERS
ASSOCIATION
Plaintiff
v.
APRIL D. GALLOP
Defendant
Case No. GV21014663-00
NOTICE OF MOTIONS, MOTION TO REINSTATE CASES ON DOCKET, MOTION TO SET
ASIDE/ VACATE JUDGMENTS
Comes now the Defendant, by Pro-Se, April D. Gallop (hereinafter referred to as the
“Defendant” or “movant”) and files this Notice of Motion to the alleged Plaintiff, Cameron Bay
Homeowner’s Association, to respectfully request that this Honorable Court, pursuant to Virginia
Code 8.01-428 A (i), (ii), and (D), order that the default judgment entered in Case No.
GV21014663-00 be found null, void and of no effect. Additionally, the Defendant, by Pro-Se,
respectfully requests for such other and further relief as this Honorable Court deems just and proper
under the FDCPA and any other applicable laws. In support of this Motion and pursuant to Virginia
Code 8.01-428, the Defendant, by Pro-Se, offers states the following:
- THE ORDER IS VOID AT ITS FACE AS A MATTER OF LAW
i. The Chesterifeld General District Court Lacked And Lacks Subject
Matter Jurisdiction.
Under Virginia Code § 16.1-77, each general district court shall have, within the limits of
the territory it serves, civil jurisdiction as follows: “Exclusive original jurisdiction of (i) any claim
to specific personal property or to any debt, fine or other money, or to damages for breach of
contract.” (Emphasis added). Subject-matter jurisdiction is the authority granted to a court
through constitution or statute to adjudicate a class of cases or controversies. Ear ley v. Landsidle,
257 VA 365, 371, 514 S.E.2d 153, 156 (1999). The law of restrictive covenants is governed by
contract law. “The contractual relationship established between the corporation and its members
may not be impaired by the exercise of corporate powers in derogation of the covenants.” 286
S.E.2d 192 (Va. 1982), 791213;, see also Bauer v. HarnBauer v. Harn 286 S.E.2d 192. 286
S.E.2d 192 (1982).
In the motion to dismiss filed by the Defendant, the defendant averred that she had not
entered any contract (or agreement) with the alleged Plaintiff regarding the payment of any
mandatory membership dues (guised as assessments or any assessment for common areas not
designated in the Declarations. The Declarations submitted failed to designate common areas, and
specifically and expressly grant the Board the power to fix, levy or impose for assessments. Further
it fails to impose and an affirmative duty (or requirement) to maintain common areas. Therefore,
the Cameron Bay Homeowners Association Declaration of Covenant and Restrictions (the
contract) is invalid due to lack of “consideration. ThereforeAccordingly, the General District Court
lacked subject matter jurisdiction over the Defendant in that regard. (EXHIBIT A). 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.
- FRAUD ON THE COURT
3.
ii. Insufficient Pleadings do not Satisfy the Requirement for the Court’s Jurisdiction
The warrant in debt is a noticed based pleading. When pleadings fail to sufficiently state
causes of action, the Courts hold them insufficient to establish the Court’s jurisdiction. See
Williams Crane & Rigging, Inc. B & L Systems, Ltd., 466 F. Supp. 956, 957 (E.D. Va. 1979).
In the instant action, Defendant avers that Plaintiff’s Writ of Debt (and any possible
additional pleading that may be filed on record) is insufficient at face value, to assert any claim
for relief against Defendant. The alleged Plaintiff, Cameron Bay Homeowners Association is a
Non-Stock Corporation that is voluntary. It does not have capital stock. Unlike a shareholder in a
stock corporation, a member may withdraw, resign, or abandon membership. The alleged
Plaintiff can’t provide adequate proof of admissible evidence that it was converted to
mandatory with 100% unanimous consent of its general de facto partnership with quorum
certification (which can’t be backdated). A mere repetitive use of “shall be” fail to be sufficient to
impose a mandatory duty. (e.g., Id: Winklelman, 267 VA at 13; Shifflet, 275 VA at 204) (George
Evans, et al v Seven Springs Farm HOA) See Dogwood Valley Citizens Association, Inc., et al. v.
William A. Winkelman 590 S.E.2d 358. Notably, the defendant has never entered a contract via
covenant to pay any mandatory membership dues (guised as assessments) or any assessments with
the alleged Cameron Bay Homeowners Association. Further, the Declarations of Covenant and
Restrictions (a matter of contract law) of the Cameron Bay Homeowners Association does not
specifically or expressly state that the alleged Plaintiff can fix, levy or bill for any assessments or
Membership dues guised as assessments in any exact dollar amount. (Exhibit A)
According to VA Code 55.1-1805,
“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 alleged Plaintiff, Cameron Bay Homeowner’s Association hasn’t designated any
areas as common areas in the Declaration per Virginia Code 55.1-1800. The property meant
for designationed was zoned as a R9 residence on or around the year 2008. (Exhibit B). It can’t
be designated in the Declarations. There is no complete Declarations (agreement) that meets the
standard of strict construction. As stated by the Honorable Judge Herbert Gill, Jr in Romito vs.
The Bexley Association 3:2009cv00094, “[u]nder Virginia law, the Plaintiff cannot be held to pay
for land he has no right to. Since he was not entitled to the use and enjoyment of the properties
owned by the Defendant, he is not financially obligated to incur fees.’’ The same applies to the
Defendant in the instant case. It follows; Defendant should not be held liable to pay for land that
Defendant had no right to since Defendant wasn’t entitled to the use and enjoyment of the
property owned by the alleged Plaintiff. The alleged Plaintiff, through amended and redacted By-
laws in 2017, which were improperly enacted, and procedurally flawed, is attempting to utilize
this document to allow them to collect assessments the Declarations doesn’t specifically or
expressly allow. This is unlawful and cannot stand.
The alleged Defendant Plaintiff utilized the name of Cameron Bay LLC, a company that
was terminated and purged. As clarified by the State Corporate Commission, “Purged, then its
existence or registration has been canceled, revoked, terminated or withdrawn for a period of
more than 5 years and under Virginia law, the entity is not eligible for reinstatement or
restoration.” Therefore, the allege Plaintiff, wasn’t allowed to use Cameron Bay LLC to amend
Bylaws in 2017. As clarified in Virginia Code 13.1-812, “It is unlawful to transact business as a
corporation unless authorized.” (Exhibit C) It is a well establishedwell-established principle that
restrictive covenants on land are not favored and must be strictly construed. Anderson v. Lake
Arrowhead Civic Association 253 VA 264,269, 483 S.E. 2d 209, 212. “Substantial doubt or
ambiguity is to be resolved against the restrictions and in favor of the free use of property.” Id at
269-70,483 S.E. 2d at 212.
Article XIII of the original Bylaws state,” These Bylaws may be amended, at a regular or
special meeting of the members by a vote of a majority of a quorum of the Members present in
person or by proxy.” Yet, the 2017 Bylaws were amended by the alleged Board. Therefore, the
amended and redacted Bylaws of 2017 being utilized to obtain monies can’t legally stand. VA
Code 13.1-823 bars the alleged association from having bylaws that contain any provision that is
not inconsistent with the law or articles of incorporation. Defendant alleges that the bylaws are
inconsistent. Section 2. Of Article XIII of the original Bylaws state, “In the case of any conflict
between the Articles of Incorporation and these Bylaws, the Articles shall control; and in case of
any conflict between the Declaration and these Bylaws, the Declaration shall control.” (Exhibit
D).
The 2017 amended and Redacted Bylaws allows the Board powers to fix assessments.
This is inconsistent with the articles of incorporation. The articles of incorporation state: “the
association shall fix, levy, and enforce payment by any lawful means, all charges, or assessments
pursuant to the terms of the Declarations.” (Exhibit E). The declarations contain no provisions
that expressly state that the alleged Plaintiff can bill for any assessments or membership dues
(guised as assessments) in any exact dollar amount. The alleged Cameron Bay Homeowners
Association is trying to by amending the bylaws grant powers to collect and impose fee and
assessments that aren’t specifically expressed in the declaration which is beyond their authority.
In Dogwood Valley Citizens v. Raymond Shifflett 654 S.E.2d 894 (Va. 2008), the VA Supreme
Court held that the Articles of incorporation and Bylaws are not a declaration and that the
responsibility for maintenance of common areas and roads must be “imposed” on the
association; voluntary assumption of this duty is insufficient. See also Anderson v. Lake
Arrowhead Civic Association, 253 Va. at 272, 483 S.E.2d at 213-14. A duty “imposed” on an
organization for purposes of qualifying as a property owners’ association under the Property
Owner’s Association Act is one that cannot be altered or eliminated simply by amending the
associations’ bylaws.
For the foregoing reasons, it is evident that this Court lacks jurisdiction over Plaintiff’s
case due to the insufficiency of claims in Plaintiff’s Writ of Debt.
- THE DEFENDANT IS NOT A MEMBER OF THE CAMERON BAY
HOMEOWNER’S ASSOCIATION.
Cameron Bay Neighborhood consists of Lots A-F. The amendment to add Defendant’s lot
is invalid. The declarant (Cameron Bay LLC) sought amendment on November 12, 2004. The
Cameron Bay Homeowner’s Association was terminated in 2003, which meant they could no
longer conduct business. It is notable that no record exists to show that the general de facto partners
of lot owners properly met in a meeting of quorum to obtain the vote of the proper voting group to
authorize reinstatement with proof of quorum certification (which can’t be backdated). As clarified
in VA Code 13.1-812 “It is unlawful to transact business as a corporation, unless authorized.” The
business records (along with Election Records) are to be maintained permanently. Also, Cameron
Bay LLC did not obtain the deed to 6042 Walking path lane until December 20, 2004. Only
Emerald Homes (not Kennedy Homes) properly amended to (add) enjoin their lots. (Exhibit F) The
declarant therefore had no right to transact business with a lot he did not have a proper title to.
Notably, under 15 U.S. Code § 1703: it is unlawful for a “developer or agent” of a covered
subdivision to use “Any means or instruments of transportation or communication in interstate
commerce, or of the mails . . . to sell or lease any lot unless a statement of record with respect to
such lot is in effect . . . [and] a printed property report…” This essentially means that the developer
of a covered lot shall not act in regard to the lot without some sort of title or statement of record.
In Tvardek v. Powhatan Village Homeowners Ass’n Record No. 150456 (2016), the court
noted that 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 would have
been unheard of under English common law, and that Virginia Courts have always held this
principle. This means that under common law restrictive covenants or declarations cannot be
imposed on a landowner by other landowners who have no title to the other landowner’s property.
Further under the Code of Virginia, § 55.1-1806, the HOA shall not for instance, have the
authority to evict a tenant of any lot owner or to require any lot owner to execute a power of
attorney authorizing the association to evict such a tenant. In Bauer v. Harn 286 S.E.2d 192
(1982), the Court held that the Board of Directors of a non-stock corporation operating a private,
residential community exceeded its authority by granting to persons having no legal or equitable
title to real estate in the community the right to enter and use the recreational facilities and
amenities upon payment of annual fees.
Besides, the Virginia Code 55. 1-1829, outlines a condition consistent with the method of
altering restrictive covenants applicable to real property. See Henning v. Maynard, 227 Va. 113,
117, 313, S.E. 2d 379, 382 (1984). The amendments that sought to add Defendant’s lot thus failed
to become effective or have the proper quorum certification. “The fact a defective certification
might be viewed by a title examiner as effective doesn’t make it so.” See Tvardek vs Powhatan
Village HOA, 291 Va. 269, 274- 275 (2016) (Emphasis added). The Property Owner’s Association
Act only applies to Associations that impose a mandatory duty to maintain. The alleged Plaintiff,
the Cameron Bay Homeowner’s Association isn’t in compliance with Property Owner’s
Association. It is an assignee, who assumes its duties voluntary. See Anderson, et. al v. Lake
Arrowhead Association Inc., 253 Va. at 272, 483 S.E.2d at 213-14. Department of Professional and
Occupation Regulation already clarified, if the Cameron Bay Homeowner’s Association was
properly established (which it isn’t) it is voluntary. Further, DPOR created “Best Practices for POA
Declarations” which was adopted December 10, 2015, which could have been reviewed prior to
filing any legal action. (Exhibit G).
Furthermore, the Defendant (the successor of the lot) created a letter pursuant to covenant
19 of the Cameron Bay HOA Declarations exempting themselves from the Association. Covent
19 of the Declarations state as follows:
“The Declarant, or its successors or assigns, shall have the right to waive any
one of more of these covenants as to any one or more of the lots. Each such
waiver shall (a) be in writing and binding upon the owners of all of the lots and,
(b) not have an precedential effect with respect to the lots that are not subject to
such waiver.”
Therefore, the Defendant is not a member and cannot be held to pay any fees or
membership dues guised as assessments regarding the Cameron Bay Homeowner’s association
utilizing procedurally flawed amended and redacted Bylaws that force payment in conflict and
inconsistent with the Declarations, law and Articles of Inc. The Alleged Association does not
maintain the right to refuse such letter. Nor does any lot owner have to wait for the alleged Board’s
approval. It appears ACS West Inc, via corporate usurpation with the help of Julian P. Porter and
other individual lot owners, sought to amend the bylaws of the corporation in 2017 to add every lot
owner to the association, to bill and make mandatory assessments. The meetings of the members
have consistently failed to meet quorum. Thus, those individual lot owners don’t maintain the legal
authority to operate on behalf of the Association. Therefore, there is real question as to the alleged
Plaintiff listed as the real party pursing this action. Mr. Porter, individual lot owner signed ACS
West Inc contract. While Mr. Porter and other individual lot owners have been nominated, none
received the adequate number of votes for any position in a meeting of the members (general de
facto partners of lot owners) that maintained quorum with proof of quorum certification (which
can’t be backdated). Therefore, ACS West Inc contract is signed by an individual lot owner with no
legal authority to operate on behalf of the Cameron Bay Homeowners Association. See Va Code
13.1-852. (Exhibit H).
Accordingly, Defendant is not liable to the amounts claimed by the Plaintiff because
Defendant was not a member of the Association. Nor does any maintenance assessments, special
assessments, membership dues (guised as assessment) or no offset covenant specifically or
expressly exist in the Declarations. Again, no common areas were designated in the Declarations.
- THE ALLEGED PLAINTIFF IS NOT IN COMPLIANCE WITH THE VIRGINIA
PROPERTY OWNER’S ASSOCIATION ACT UNDER VIRGINIA CODE 55.1-1800 –
55.1-1836
Under VA Code 13.1-851, “an amendment to the articles of incorporation that adds,
changes, or deletes a quorum or voting requirement must meet the quorum requirement and be
adopted by the vote and voting groups required to take action under the quorum and voting
requirements then in effect.”
The Cameron Bay Homeowner’s Association was terminated on 01 December 2003 and
again on 30 November 2013. The Notice of Termination of Corporate Existence clarified that it
“meant the existence was automatically terminated as of those dates and no longer authorized to
transact business.” (Exhibit I) It appears, without authorization or prior notice to the general de
facto partnership of Lot owners, ACS West Inc. took over, by way of corporate usurpation of the
name Cameron Bay Association in October 2015 and proceeded to obtain Reinstatement
paperwork via deceptive methods that fails to comply with numerous Virginia codes. When the
Company, ACS West Inc, contacted a Mr. Jeff Adams for the purpose of completing the
Reinstatement paperwork, a former nominated lot owner, who maintained an exemption on his
home, clearly stated, “I was not a current board member or a member at all and I would not
submit any forms on their behalf.” (Exhibit J). The company, ACS West Inc, obtained an
alleged contract from a Mr. Patrick or Julian Porter, alleged Vice President, on or around 8
October 2015. No adequate proof was provided in the past or present that a meeting was held
with its Lot Owners (qualified voting members), nor was there any proof that it met quorum to
obtain the necessary votes with quorum certification. Therefore, an individual lot owner doesn’t
maintain the right to bind and entire Community. The annual meeting of the members to vote for
officers and directors failed to meet quorum of the members. Therefore, none of the individuals
have the legal authorization to operate on behalf of the Association. Nor do they have the legal
authorization to change quorum to appoint themselves or others.
- THE ALLEGED PLAINTIFF IS SEEKING TO DECLARE THE DEFENDANT A
MEMBER OF AN ORGANIZATION BY JUDICIAL DECLARATION.
Defendant avers that the Plaintiff cannot provide sufficient evidence that they are in
Compliance with the Property Owner’s Association Act 55.1-1800 – 55.1-1836. Further the said
law doesn’t apply to Associations like the Cameron Bay Homeowner’s Association that assumes its
duties voluntarily. The alleged Plaintiff has failed to provide adequate evidence that they
designated any areas as common areas in the Declaration as stated in the Property Owner’s
Association Act. Further the alleged Plaintiff has failed to provide a valid or effective amendment
as outlined in Virginia Code 55-515.1. See Tvardek Jr. Vs Powhatan Village HOA 291 Va. 269,
274-275 (2016); see also Henning v. Maynard 227 VA 113,117, 313, S.E. 2d 379, 382 (1984).
Further, the Plaintiff does not maintain the right to refuse any letters. Nor does any letter created in
compliance with Covenant 19 requires the Board’s approval.
- IT IS DOUBTFUL WHETHER THE PLAINTIFF COMPANY IS
OPERATING UNDER ITS OWN ACCORD
Defendant avers that the Plaintiff Company may not be operating on its own accord. The
Company, ACS West Inc, appears to have taken over the name Cameron Bay Homeowner’s
Association via deceptive means and spent a great deal of time to finding cohorts to fill positions
without following proper voting to fulfill with proof of quorum certification. Therefore, the
Company, ACS West Inc, and the Plaintiff, alleged Cameron Bay Homeowner’s Association
cannot produce adequate documentation as admissible evidence that they obtained the proper
voting, from the general de facto partnership of Lot Owners, to utilize the name, reinstate the
nonstock corporation and operate on its behalf. The 2017 Amended and Redacted Bylaws in
Article X Section 2 provides that the Election of Officers is inconsistent with the law, if the
Articles of Incorporation, and original Bylaws and not properly adopted. The original Bylaws in
Section 2. Article IV clarifies that the members shall elect the directors at the annual meetings.
The law clarifies in VA Code 13.1-852 that Directors are voted by the members entitled to vote at
a meeting which a quorum is present. The meetings failed to meet quorum of the members.
Therefore, no individual lot owner has the legal authority to operate on behalf of the Cameron
Bay Homeowners Association. (Exhibit K)
It is noteworthy that an alleged contract signed by an individual lot owner should not
bind an entire Community where no proof exist that the majority Lot Owners agreed or voted for
the person. ACS West Inc, and other listed cohorts could have secured votes from her friends or
other cohorts who desired to be complicit with her in this heinous act against the Lot Owners in
the Cameron Bay Neighborhood. Hearings are authorized. Yet, not one was scheduled. See
Virginia Code 55.1-1819c. On one such occasion, the office of ACS West Inc was contacted to get
information and attempt scheduling such hearing with then listed President Mr. Kyle Woods on
2016 Annual Report. Yet, an email response from a Ms. Kimberly, ACS West Community
Manager clearly states, “[f]urthermore I have no idea who Mr. Wood is and therefore cannot
produce you with his documents.” See Virginia Code 13.1-811; see also Virginia code 13.1-849;
Virginia Code 13. 1-852; and Virginia Code 13.1-668. (Exhibit L)
The Defendant avers that the acts of a few people should not bind the corporation. The
Plaintiff failed to show proof of adequate Elections Records or any original quorum (with
quorum certification which can’t be backdated) of the qualified voting members (general de facto
partners of lot owners). Thus, the decision to develop annual budget for approvals or any
amounts arrived at by the alleged Plaintiff is invalid, null, and void.
- VIOLATIONS OF THE FAIR DEBT COLLECTIONS PRACTICES ACT
The Fair Debt Collection Practices Act, “was passed to prevent abusive, deceptive, and
unfair collection practices by collection.” The assessments are subject to the FDCPA. The
actions of the alleged Plaintiff, with the aid of their debt collecting law firm Solodar and
Solodar, constitute a false or misleading communication in violation of 15 USC 1692 (e)(2) by
implying that the Defendant has a mandatory obligation to pay. The alleged Plaintiff cannot
possibly provide validation and or proof of claim as outlined in the Fair Debt Collections Practices
Act. The meeting of the members to vote for Directors etc, has consistently failed to meet quorum.
The law clarifies in VA 13.1-851 to change quorum you must meet the quorum requirement.
Therefore, no Community Manager, representative of ACS West Inc, individual lot owner can hire
or appoint the Board.
While the alleged Cameron Bay Homeowners Association is voluntary, individuals aren’t
allowed to volunteer to be the Board, without following the proper voting procedure. Regardless,
they can’t and didn’t attempt to comply with any request for validation. As it pertains to The Fair
Debt Collection Protection Act (15 USCA 1962e), the alleged Plaintiff can’t validate the debt for a
transaction I’m not subject to. Repeated efforts have been made to create a debt for a lot they don’t
have a lawful means to collect. Covenant 17 of the Cameron Bay HOA Declarations only allows the
association to go to court for violations of the covenants in the declarations. The declarations do not
specifically or expressly state that the HOA is allowed to go to court for failure to pay assessments
or membership dues (guised as assessments) for common areas not designated in the Declaration.
Therefore, filing the warrant in debt and failing to cease collection is a violation of Fair Debt
Collection Practices Act. See Spears v. Brennan, 745 N.E.2d 862. Further, as already alleged
above, the Plaintiff’s bylaws were improperly amended and are inconsistent with the articles, law,
and the Declarations. They are therefore of non-effect in that regard.
- RES JUDICATA DOES NOT APPLY IN THE INSTANT CASE
Res Judicata literally means a “matter adjudged,” See Black’s Law Dictionary 1174 (5th
ed. 1979), and it precludes re-litigation of a claim or issue once a final determination on the
merits has been reached by a court of competent jurisdiction. It rests upon the principle that a
person should not be required to relitigate the same matter a second time “with the same person or
another so identified in interest with such person that he represents the same legal right, precisely
the same question, particular controversy, or issue, which has been necessarily tried and fully
determined, upon the merits, by a court of competent jurisdiction . . . .” Patterson v. Saunders,
194 Va. 607, 614, 74 S.E.2d 204, 209, cert. Denied, 354 U.S. 998 (1953). In short, once a matter
or issue has been adjudicated, it may be relied upon as conclusive between the parties, or their
privies, in any subsequent suit.
“The party claiming the defense of Res Judicata, must prove by a preponderance of the
evidence, that a prior judgment bars the claim.” See City of Portsmouth v. City of Chesapeake
205 Va. 259, 270, 136 S. E. 2d *672 817, 826; Feldman v. Rucker, 201 Va. 11, 18, 109 S.E. 2d
379, 384.) Further, the party claiming Res Judicata must show to the court the (1) the specific
cause of action in the prior lawsuit; (2) the specific issue or fact that was addressed and decided
in the prior lawsuit; (3) the identities of the parties to the prior lawsuit; (4) the designation or
position of the parties in the previous lawsuit (which parties were plaintiffs, and which were
defendants); (5) whether the judgment on the previous lawsuit was final; and (6) whether all
parties to the previous lawsuit were given full and fair opportunity to be heard on the issue. See
Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974). This includes truthful facts
presented with adequate evidence. The principle of Res Judicata has its critical roots in the
Seventh Amendment of the United States Constitution, which addresses the finality of the
Judgment rendered in the Civil Jury Trial. Res judicata also seeks to prevent harassment of
parties.” Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974).
In light of the foregoing, a claim is barred by Res Judicata when the prior action
involves identical claims and the same parties or their privies. The U.S. Supreme Court stated in
that regard in Riehle v. Margolies, 279 U.S. 218, 225 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.”
“A cause of action for purposes of Res Judicata, maybe broadly characterized as an
assertion of particular legal rights which have arisen out of a definable, factual transaction.” See
(Bates v. Devers, 214 Va 667, 672 n.8 202 S.E. 2d 917, 921 n.8). Similar language appeared in
more recent opinions. (See e.g., Allstar Towing Inc. v. City of Alexandria, 231 Va 421, 425, 344
S.E. 2d 903, 905-06 (1986); Waterfront marine Constru. Inc. v North End 49ers Sandbridge
Bulkhead Groups, A,B & C 251 Va 417, 434, 468 S.E. 2d 894, 904 (1996).
In the instant action, the Plaintiff wrongfully maintains an Order within the General district
court granting for previous billing cycles which is said to be approved annually. Based on the
records before the Honorable Court, the records are insufficient as a matter of law. There were
errors of law as applied to the case, fraud and misconstruing of arguments presented that lead to
final wrongful judgment.” (Case Numbers: GV18006777- 00 and GV17008905-00).
Fraud is an exception to the Defense of Res Judicata. Again, based upon the record in this
Honorable Court the Plaintiff can’t prevail on the defense of Res Judicata. The alleged Plaintiff has
failed to provide adequate documentation as admissible evidence that they are the real party of
interest. Ballot records are to be maintained for seven years. Further, Voting and Elections Records
with proof of quorum certification (which can’t be backdated) are to be maintained permanently.
No such documentation has been provided for review to obtain authentication. The law of
restrictive covenants is governed by contract law. No such covenant has been provided that I
entered into a contract to pay mandatory dues guised as assessments for common areas that aren’t
designated in the Declaration. The amendment to add my lot to the Declarations failed. There is
therefore no privity. Defendant is not a member as outlined in the Declarations. This was resolved
via letter prior to reinstatement being filed on or around 2015 by ACS West Inc. on behalf of the
alleged Cameron Bay Homeowner’s Association. The Plaintiff can’t adopt new Bylaws, or
override the provisions of the recorded covenant, by amending Bylaws illegally. This is unlawful
and can’t stand.
- PER INCURIAM
Defendant further maintains that although a lower court cannot overrule a higher courts
judgment, it can choose to depart from the precedent while hearing similar cases. The U.S.
Supreme Court in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312, n. 8, and 315-316, 65
S.Ct. 1137, 89 L.Ed. 1628 (1945) observed that per incuriam doctrine has its origins in English
law. The Court observed that in English law, a per incuriam decision is one given in ignorance or
forgetfulness of a statute or of a rule having the force of law.
Specifically, the Court observed that the English Court of Appeal is not bound by its
decisions given per incuriam. Accordingly, a decision/judgment can be per incuriam when a
provision in a statute, rule or regulation, which was not brought to the notice of the court. A
decision/judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a co-equal or larger bench; or if the decision of the Circuit
Court is not in consonance with the views of the Virginia Supreme Court, the lower court can
depart and ignore it.
In light of the foregoing, in 2018, the U.S. Supreme Court in Janus v. American
Federation of State, County, and Municipal Employees overturned its 1977 holding in Abood v.
Detroit Board of Education and determined that laws that require public employees to pay “fair
share” fees to the union designated to represent their bargaining unit, even if the employees are
not members of the union, violated the First Amendment by compelling speech on matters of
public concern. The Supreme Court overruled precedent because it had significant disagreements
with its reasoning in West Virginia State Board of Education v. Barnette. In that case, the Court
held that the First Amendment prohibited a state from enacting a law compelling student to
salute the American flag. In doing so, the Court overruled its three-year-old decision in
Minersville School District v. Gobitis, which had upheld a state’s flag-salute requirement.
In the instant case, the Cameron Bay HOA amended Bylaws to create mandatory
assessment. The VA Supreme Court in Dogwood Valley Citizens Association v. Shifflett, Record
No. 070143 determined, “[b]ecause we conclude that the filing of DVCA’s Articles of
Incorporation and Bylaws did not constitute a declaration imposing on DVCA operational or
maintenance responsibilities for the common areas or roads of the development, we will affirm
the judgment of the circuit court.” The VA Supreme Court via Senior Justice also stated, “[w]e
reject DVCA’s argument that the plain language of the definition of “declaration” includes
instruments such as articles of incorporation and bylaws if such documents are filed in the
appropriate land records and create either certain assessment authority or maintenance duties for
the property owners’ association. Such a literal application of the phrase “any instrument” in the
definition of “declaration” is inconsistent with the concept of “declaration” used in other
provisions of the POAA.” Defendant avers that unlike the case in Dogwood, the Cameron Bay
HOA, bylaws weren’t not properly amended, and they are inconsistent with the Declarations yet
still utilized to force mandatory payments. Therefore, the order of the said judgment suffers from
errors on the surface of the record. The strict rule of stare decisis does not apply in that regard.
CONCLUSION
In light of the foregoing, Defendant avers that this Honorable Court lacks jurisdiction
over Plaintiff’s claims. Notably, Plaintiff’s Writ (Warrant of Debt) fails to sufficiently state a
claim for relief. (Also, due to the insufficiency of the Plaintiff’s pleading not attached to warrant)
this Honorable Court lacks jurisdiction over the said case.
It is worth noting that a judgment issued without jurisdiction is void. A void judgment is
one that has been procured by fraud or entered by a court that lacked either subject matter or
personal jurisdiction.” Key Bank & Tr. v. Myers, 49 Va. Cir. 70 (1999) (citing Rook v. Rook, 233
Va. 92, 95, 353 S.E.2d 756, 758 (1987) (Emphasis added). It is entitled to no respect whatsoever
because it does not affect, impair, or create legal rights. See Ex parte Seidel, 39 S. W. 3d 221,
225 (Tex. Crim. App. 2001).
Therefore, the Defendant hereby demurs to alleged Plaintiff’s Warrant in Debt, since
neither the Plaintiff nor its counsel can produce adequate documentation as admissible evidence
that they are the real party. They also cannot state a cause of action for which relief can be granted.
The Plaintiff is seeking to declare the Defendant a member of an organization by judicial
declaration which is an action this court has no authority over. The construction of such covenants
or declaration are subject to the law as was held in Fein v. Pavandeh 284 Va 599, 605 (2012). In
Scott v. Walker, 274 Va 209, 212-13 (2007) where the court held that the general rule” is that the
restrictive covenants “are not favored, and the burden is on the party who would enforce such
covenants to establish that the activity objected to is within their terms. The court further held that
the Restrictive covenants “are to be construed most strictly against the grantor and persons seeking
to enforce them, and substantial doubt or ambiguity is to be resolved in favor of the free use of
property and against restrictions.” Therefore, in as much as the HOA can exercise control through
declarations and restrictive covenants, consent is still vital as the occupiers need to enjoy their
rights of occupancy or ownership without any restrictions. See Hamm v. Hazelwood, 292 VA 153,
157-58 (2016). The alleged Plaintiff’s Declarations of Covenants and Restrictions doesn’t
expressly allow it to fix, levy or assess, impose fines, adopt rules or regulations to impose fines.
Nor does it expressly state they can bill in the mentioned amount for assessments, any amount to
pursue mentioned amount as it pertains to court fees, attorney fees for mentioned amounts or
membership dues (guised as assessments).
Additionally, the defendant is not a member of the Association and will never voluntarily add
themselves by signing such membership certificate to the Cameron Bay Homeowners Association.
Therefore, it appears all actions taken by the alleged Plaintiff are done with malice, done willfully, and
are done with either the desire to harm, harass or obtain some form of unjust enrichment from the
Defendant and/or with the knowledge that their actions would very likely harm the Defendant and/or
that their actions are taken in violations of the Declarations of Covenants and Restrictions, Fair Debt
Collections Practices Act, and other state laws. The Plaintiff knows or should have known that their
actions were in reckless disregard and in violation of the Declarations of Covenants and Restrictions,
Fair Debt Collection Practices Act, federal and state laws.
RELIEF REQUESTED
In light of the foregoing, tThe Defendant respectfully moves this Honorable Court to Set
aside /vacate the default judgment orders entered in GV21014663-00 and provide other order(s)
or relief as it deems just and proper, together with any other punitive or statutory damages and
other measures which, in the Court’s opinion, would punish and deter similar conduct from this
alleged Plaintiff, its employees, agents, attorney and other representatives. The defendant also asks
that this stay in any possible executions the plaintiff may make. This Defendant respectfully asserts
their right to due process under the Constitution and relevant case law. The Defendant further
respectfully asserts her right to a fair and impartial judge, and a ruling based on the facts as
outlined above and the case law cited.
Respectfully Submitted,
April Gallop
6042 Walking Path Lane
Midlothian Va, 23112
(804) 447-5473 Telephone
(804) 251-1564 (Fax)
aprilgallop@comcast.net
Pro-Se
CERTIFICATION OF MAILING
Defendant affirms that a copy of the above Motion was served upon the Plaintiff to this
action by electronic and/or U.S. mail to their respective addresses as stated below:
[ENTER ADDRESS]
DATED: __
April Gallop
6042 Walking Path Lane
Midlothian Va, 23112
(804) 447-5473 Telephone
(804) 251-1564 (Fax)
aprilgallop@comcast.net
Pro-Se
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