Barbudo Letter

The Administrator of the Condominium Regime Ariana Sanchez distributed a letter from a dubious person who calls himself “Praxis Lawyer”. He did not provide the name of the law firm he claims to work for or used any kind of official stationery. Any address, phone number or email are also missing. A request to the Bar Association of Baja California Sur confirmed Jorge Luis Barbudo Calvillo is not a member.

Mr Barbudo had contacted several property owners before and when asked to provide his credentials showing that he can speak for the HOA and its management, he did not do so. His admissions in his letter are in part awkwardly embarassing for an aspiring lawyer raising questions about his sincerity.

We will go through the letter section by section to demonstrate the errors, omissions, and falsehoods stated by Jorge Barbudo. This way property owners have a place to get the correct information. Blue font indicates direct quotes from Mr. Babudo’s letter.

 PREVIOUS INVESTIGATION FOR THE CRIME OF THREATS.

LPZ/476/2023/NUC.

ARIANA GISELA SANCHEZ TOYES

JANE PETERS, RAINER RUDOLF PETERS, JAMES FRANCIS MAGUIRE AND GERHARD WATERKAMP.

This process is in the investigation stage of the Public Ministry and the Ministerial Police, to investigate the facts of the threats and psychological studies of the complainant, the administrator ARIANA GISELA SÁNCHEZ TOYES. On January 25, 2023, a restraining order was issued for JANE PETERS, RAINER RUDOLF PETERS, JAMES FRANCIS MAGUIRE AND GERHARD WATERKAMP, so that they do not engage in intimidating or harassing behaviors against ARIANA to safeguard and guarantee her physical integrity, for considering these people an imminent risk.

It is very important to point out that these people individually presented the amparo lawsuit against the restriction that the Public Ministry ordered so that they did not approach the administrator Ariana Sánchez, and in the same amparo they stated lies, since they alleged that due to that restriction They could not enter the condominium assembly, which is totally false and for this reason they lost these amparo lawsuits.

This is a complete falsehood. The Amparo was filed to obtain the statements Ariana Sanchez has made to Prosecutors. With these statements it was possible to prove that those were false and file criminal complaints for the crime of “Falsity before specific Authority” against Ariana Sanchez, which is now in the investigative stages. This is the fastest way to remedy the damages Ariana Sanchez has caused with her lies.

Ariana Sanchez had made false statements and thereby obtained a short-term protective order against 4 property owners that had asked her questions about finances of the HOA leading up to the AGM. The protective order specified that if Ariana Sanchez felt annoyed, she could request the incarceration of the 4 property owners. The AGM was moved on short notice to an alternate location and 2 police cars were stationed outside. This way the 4 property owners were de-facto denied participating in the meeting, as they could not attend it without risking their liberty and health due to criminal actions by Ariana Sanchez.

In face of the facts the claims Jorge Barbuda makes in this regard are just very cynical lies.

As a result, the case LPZ/476/2023/NUC. Has now turned into an investigation of the crimes of Ariana Sanchez and the Amparo is no longer pursued as we expect a faster resolution by the criminal court system.

VOLUNTARY JURISDICTION.

FILE 81/2022.

SECOND CIVIL COURT.

PROMOTER: JAMES FRANCIS MAGUIRE.

In this judicial proceeding, Mr. Maguire, deposited in court what according to him is the fair amount to pay for the maintenance fees, totally failing to comply with the agreements that all the condominium owners decide each year in the ordinary assembly, in adherence to the deed of the HPV Condominium Property Regime and its Regulations. For this situation we opposed this deposit.

VOLUNTARY JURISDICTION.

FILE 82/2022.

SECOND CIVIL COURT.

PROMOTER: RAINER RUDOLF PETERS.

In this judicial proceeding, Mr. Peters also deposited in court what he thinks is fair to pay for the maintenance fees, totally failing to comply with the agreements that all the owners decide year after year in ordinary assembly, in adherence to the deed of the HPV Condominium Property Regime and its Regulations. Due to this situation, we also opposed this deposit.

Messrs.. Maguire and Peters paid the full amount due to HPV to the court when the Administrator and Juan Carlos refused to provide requested documentation supporting the declared status of the Regime of Haciendas Palo Verde, and its’ Homeowners Association. There was no argument on the billing, and it was deposited in full as was billed to all HPV homeowners, and the receipt of such provided to the Administrator. The statement “deposited in court what according to him is the fair amount to pay for maintenance fees, totally failing to comply with the agreements that all the condominium owners decide….”. This is a blatantly false accusation. The Administrator appealed the deposit, and the lower court could not hear the case as the Administrator escalated it into a civil conflict. The case was moved to the Superior Court and awaits further hearing. Mr. Peters case was dismissed as he paid his fees separately in addition, in good faith, and the court declared that it was no longer involved. The claim that our deposit was “done illegally” is again blatantly false. We will get a final disposition when the case comes to the court docket.

VOLUNTARY JURISDICTION.

FILE 18/2023.

SECOND CIVIL COURT.

PROMOTER: GERHARD WATERKAMP.

In this judicial process, Mr. Waterkamp requests that the HOA administrator exhibit a series of documents in Court, which will serve to sue the association, because according to him, the current administration should not exist.

Due to the fact that the notification to the HPV Property and Condominium Regime was not notified in accordance with the Law, the HOA association, which is the administrator and representative of the HPV Condominium Property Regime, filed an amparo lawsuit for these omissions in the notification, amparo 277/2023, which was resolved in a judgment dated May 8, 2023.

This amparo judgment in question, in the relevant part, indicates that the amparo is appropriate until the court that hears the voluntary jurisdiction process issues a resolution. We consider that this is not the case, so we are working on an appeal that this amparo ruling admits.

It is important to emphasize that this amparo ruling 277/2023 is not final, nor does it decide any matter for Mr. Waterkamp, it is an amparo filed by the HOA through its legal representative. Nor does it rule on the fact that the special fees should not be paid by the condominium owners, or that their collection is illegal, much less order that the HOA to return the money from the special fees to the condominium owners who paid them.

THESE OBSERVATIONS BY MR. WATERKAMP ARE INCORRECT AND OUT OF THE LEGAL CONTEXT, BECAUSE HIS POINT OF VIEW IS WRONG, SINCE AMPARO JUDGMENT 277/2023 DID NOT RESOLVE THESE ISSUES, THEREFORE HE IS MISREPRESENTING INFORMATION.

The court order to produce documents was obtained because Ariana Sanchez did not provide these documents as required by law on multiple requests and by multiple Property owners. The Administrator of the Condominium Regime is responsible for producing them. Any eventual mismanagement of the Administrator is the responsibility of the Administrator not the HOA.

2 Courts upheld that the papers were filed in accordance withy the law and refuted false claims made by Ariana Sanchez.

The Amparo court dismissed the case filed by Ariana Sanchez. 

The Amparo court and the Municipal court both decided that the motion promoted by Gerhard Waterkamp is directed at the natural person of Ariana Sanchez (and not the HOA or property owners).

The Board and administrator had claimed to have the right to issues an emergency assessment because “the HOA and every single property owner were sued”. This is proven as a false pretense by both courts. Therefore, the special assessment lacks proper foundation and is invalid. In other words, there is no emergency and no expense required from the HOA that would justify a special assessment.

In general terms, criminal fraud refers to a deceptive or deceitful act with the intention of obtaining an unlawful economic benefit or causing harm to another person. It involves the use of false representations, lies, or fraudulent schemes to induce someone to act in a manner that results in financial loss or damage. Criminal fraud can take various forms, such as:

1. False representation: Knowingly providing false information, concealing facts, or misrepresenting facts to deceive another person.
2. Fraudulent schemes: Engaging in a systematic plan or scheme designed to deceive others for personal gain or to cause harm. This may involve complex operations, manipulation of financial records, or the creation of fictitious entities.
3. Embezzlement: Illegally appropriating or misusing funds or property entrusted to one’s care or management.

We believe the claims and acts of the Board and Administrator regarding the special assessment meet and exceed the required standards for criminal fraud. The board and the Administrator are misrepresenting the facts, demanding money from Property Owners and misappropriating it for the private expenses of Ariana Sanchez.

As a result, a criminal investigation for “fraudulent Administration” is underway against the Administrator Ariana Sanchez and accomplices under File LPZ/2477/2023/NUC.

The motion to produce documents is with additional fines for the Administrator under way and will be followed up as needed until those documents are delivered to the court.

VOLUNTARY JURISDICTION.

FILE 26/2023.

FIRST CIVIL COURT.

PROMOTER: RAINER RUDOLF PETERS.

In this judicial process, Mr. Peters also demands that some documents be exhibited in Court, to file a lawsuit against the Administration and the HOA itself.

In this process, a hearing date was set for administrator Ariana to appear to render a judicial statement on April 26, 2023, to which we presented a medical certificate because Ariana could not appear on that date.

The court considered that Ariana had no power, with the documents that we showed her to accredit her with the condominium assembly, which is incorrect and for this reason we filed an appeal against this Court.

Ariana Sanchez did not appear at a long scheduled Court hearing. She called in saying she had medical issues. She did not provide any medical attest or documentation, just a claim. The Judge did not buy it and ruled that she, because of her failure to appear by default answered all statements with true. This includes a long list of mismanagement she has confessed to. We have not seen any appeal filed. Again, such an appeal would need to be filed by the natural person Ariana Sanchez and funded by her own personal funds, not the HOA. If she had appeared as ordered by the court, there would have been no need for an appeal. In any case this is not something property owners have to pay for.

• The purpose of these preparatory means: 18/2023 Waterkamp, and 26/2023 Peters, are for the administrator to show documents, some of which they do not have the right to request, because they have been owners of their homes only since June 18, 2019 for Mr. Waterkamp,according to his fideicomiso and January 22, 2020 for Mr.Peters according to his fideicomiso and most of the information required in these demands dates from 2008, the date on which the HPV Property and Condominium Regime was deeded, and that according to the Law they have no right. They can only request information from the date they are substitute fideicomisarios according to the dates of their deeds that I have already indicated. They want to use these documents to file a civil lawsuit against the HOA administrator, because according to them, the entire administration since the creation of the Condominium Property Regime is wrong, to which they have no reason or right to sue, but These issues, if they sue, will be resolved by the Court.

This is an absurd statement designed to create a smokescreen and confuse people. If Mr. Barbudo is indeed a lawyer, it can be said he made this statement in bad faith.

Off course every property owner has a right to consult all documents of an HOA back to the founding documents. These documents contain rules and facts that apply to the present time and constitute the HOA Regime.

Twice his law firm has filed complaints against producing the HOA documents (they lost both) and in none of them have they used this argument. That shows the lack of sincerity of Mr. Barbudo’s statements.

• We are also preparing a claim for damages against Messrs. Maguire and Peters, for the expenses within the preparatory means 81/2022 and 82/2022, and we are waiting for certified copies of these files to be delivered to us to finish the claims. and present them.

• As you can see, we are attending to the cases one by one, presenting legal means that the law provides to defend ourselves against these people who assert that the administrator is carrying out her work in the wrong way and that the vigilance committee allows it.

There are no legal grounds for damages against Mr. Peters and Mr. Maguire. If the Administrator indeed files claims the most probable outcome will be that the plaintiff will have to cover the legal expenses of the defendant.

• Remember that the HOA Association is the company that administers the HPV Condominium Property Regime, and year after year, you through the assembly of the HOA Association, elect a new administrator or confirm the same, which in this case, in January 2023 you elected Ariana Sánchez, a person who was elected in a vote of all the condominium owners. She accepted the position of administrator because you elected her and when the assembly decides, you can choose another person or continue with the same person in that position of administrator.
•  For this reason, it is important to tell you that any legal action against Ariana Sánchez in her position as administrator is not executed against her person, but against the position of administrator, a position that she currently holds by the will of the association’s assembly.

In this view the fact that someone is elected transfers any responsibility for wrongdoings from the elected to the electors. That is of course profoundly wrong.

Any management, elected or not, is personally responsible for their own wrongdoing.

It is an insult to the intelligence of property owners that Jorge Barbudo presents this nonsense as an argument to the community.

• The legal actions that some people are carrying out (Maguire, Peters Waterkamp), are generating additional costs for the HVP Condominium Property Regime that modify the budget approved by the condominium assembly, which motivates the administration, in agreement with the members of Surveillance Committee, in accordance with articles 11.6 and 11.7 of the Regulations of the HPV Condominium Regime, have immediately decided to impose an extraordinary or special fee, to cover the expenses that these judicial processes represent to the HPV Condominium Property Regime. Special fees for all condominium owners that are legal in accordance with these articles indicated in the HPV Condominium Regime Regulations.

The informed reader should notice by now, this statement is a complete falsehood. But here are the Articles 11.6 and 11.7 in full. These articles clearly do not provide justifications for legal expenses as the Board and Administrator falsely claim.

11.6. In case the Administrator for any reason determines that the annual budget for any fiscal year is inadequate to cover the expenses of Condominium Haciendas Palo Verde during said year, he will expeditiously determine the amount necessary to adjust the budget and will draft a supplementary budget that will include the additional expenses for Condominium Haciendas Palo Verde as well as the amount of Ordinary Contributions to be paid by Property Owners. As soon as the Property Owners Assembly approves the supplementary budget, Property Owners will be obligated to cover the Ordinary Contributions derived from the annual and supplementary budgets on the date or dates that the Administrator indicates.

 It is a fact: The Assembly has not approved any legal costs.

11.7. Independently of any requirement included in the present Bylaws, the Administrator will have the right to impose an Extraordinary Contribution or may increase any other contribution as necessary to cover costs and expenses related to emergency situations:

(a) Any unanticipated expense required by judicial order.

(b) Any emergency expense higher than the reserve fund for repair or maintenance of Condominium Haciendas Palo Verde, or related assets under the responsibility of the Administrator, upon finding out that the security of persons or private property is in danger. Prior to the collection of an Extraordinary Contribution, the Administrator will deliver a notification describing the need to carry out said extraordinary expense and the reasons for which it was not determined in the process of drafting the corresponding annual budget.

To clarify “unanticipated expenses required by judicial order.” This means a court order for the HOA to make payments. For example a vendor takes the HOA to court and the court rules the HOA owes this vendor money and orders the HOA to pay it. That is what constitutes an “expense required by judicial order”.

There is neither an expense by judicial order or any other emergency expense for repair and maintenance that is required for the “security of persons or private property in danger.”

The quoted articles of our bylaws therefore cannot be used by any means to justify the special assessment. Pretending otherwise, demanding, and collecting funds and distributing them for the private expenses of the Administrator constitutes in our opinion criminal fraud.

• The owners who do not pay the extraordinary or special fees, would be breaching and violating the HPV Condominium Regime Regulations, for which a fine of $500.00 five hundred pesos may be applied, which could increase up to $2,000.00 two thousand pesos, if they continue in the position of refusing to pay, until reaching the point that the owners who do not pay do not have a voice and vote in the next condominium assembly, and they must also pay default interest on the balance of the fines at a rate of 10% per month until the total payment is covered, all this in accordance with the Sanctions contained in article 7 of the HPV Condominium Regime Regulations

As we have shown, the Administrator and Board are breaching and violating HOA Regulations and the law. Any Property owner is in his complete right to refuse fraudulent demands of any kind. 

The threats to property owners made by the Administrator through Mr. Barbudo are inappropriate and create criminal liability by their fraudulent nature. But Property owners need to defend themselves otherwise they will be at risk getting defrauded and suffer financial damages. This is an extortion scheme that only benefits the lawyers of the Administrator.