Costa del Mar (HOA) Should they have done what they did?
The Guaymas judicial system has a reputation for corruption, it can not be denied. It won’t go away. The reputation is well deserved. What I find refreshing about corruption in Guaymas is that the corrupt system in itself does not discriminate in regards to nationality. It would appear that the system does not care if you are Mexican or if you are American, nationality does not seem to play into the system . The corrupt judicial system in Guaymas cares about one thing and one thing only. Dinero, cold hard cash, pesos or dollars. What ever justice you can afford you can actually purchase. Remember the 70’s t.v. series Barreta, the theme song for the series went something like this. “Don’t do the crime if you can’t do the time.” Well guess what, in Guaymas if you got the money honey well then you really can do the crime without doing the time. Even if you are an American and you assault a Mexican. Even if there is a video. All that is needed is to have a good lawyer take a serious chunk of change down to the Ministerio Publico (District Attorney) really fast and all those pesky assault charges, well you can just make them go away. As much as I dislike the system it is simply the way things work here. I have known it for a long time. I have seen it with my own eyes.
On the 29th of February of 2012 around 2:30 p.m. it appears that Ron Babington attempted to assault Francisco Velez Villa. The altercation took place at the Costa del Mar (CDM) development out on Algodones Beach where both reside. There is a video of the event which you can see at the top of this page. The video starts out with Ron, from outside the property, hurling a large rock in the vicinity of Francisco. The rock first hits a car parked in Francisco’s drive way, then careens off the car and hits a column of the car port. The car alarm goes off and Francisco clearly states to Ron, “Get out of here mother fucker.” Ron walks across the street and reloads with two rather large boulders one in each hand. Ron then calmly walks through Francisco’s gate. Francisco clearly tells Ron if he comes back onto his property he is going to hit him. The car alarm automatically shuts off. Ron enters Francisco’s property, large boulders in hand. Francisco states to Ron “hit me once and I am going to hit you.” Ron says “I am gonna hit you, you fucker, you think you are big shit don’t you.” Francisco now is trying to hide behind the column of his car port and states clearly “get out of here, get out of here”. Ron yells at Francisco “Are you a chicken? Are you a chicken?” Francisco says “get out of here”, Ron cocks back his right hand and looks like he is gonna take a shot at Francisco with the enormous boulder, Francisco moves behind the column again.
I am gonna stop the description right there. Before the video starts Ron had already taken a grappling hook-style anchor made of rebar and embedded it in the bow of Francisco’s boat. Luckily for Francisco he had the anchor locked to the bow so Ron could only get the anchor a few feet away from the bow of the boat, apparently after realizing this Ron slammed the anchor into the bow and there it stayed. There is no excuse for what Ron did. He clearly lost it and readily admitted that to me when I spoke with him. When you watch the video it is also clear that he could have really done serious injury to Francisco with those great big rocks in his hands. Francisco came out of it with a slightly injured foot from one of the boulders. Ron was eventually pushed down and fell backwards against the inside fence of Francisco’s yard. Ron could have been seriously injured as well. Francisco, 25 or 30 years younger than Ron, could have easily pummeled him if he had wanted to.
Francisco did call the police. He dialed the number for the Comisario in San Carlos. If he would have dialed 066, the Mexican equivalent of 911, his call would have been recorded.
Two police cars were called to the scene with 8 police in all showing up and unbelievably they were denied access to the property. It appears that Karleen Leonard, Ron’s girlfriend and vice president of the Costa del Mar Home Owners Association (HOA) and/or the paid security guard informed the police that they could not come on to the property since it was private. Francisco had also called his roommate Joe out to the property. When Joe arrived he went into the property by foot leaving the police scratching their heads at the gate. After a few minutes one of the cops decided he would have to go have a look and followed Joe into the property. When the officer saw the huge boulders in the driveway and the anchor embedded into the bow of the boat he radioed the other officers at the gate and instructed them to enter and if the security guard refused to open the gate they should knock it down with their vehicle.
What prompted Ron to go to Francisco’s house and apparently attack him? There’s been a long feud over HOA monthly fees that have not been paid by Francisco. Francisco purchased his home around 2006 and states that he used to pay his monthly HOA fees. After the 2009 Hurricane Jimena disaster Francisco quit paying. He claims he should not have been assessed another fee other than the monthly fee he already was paying and he also claims that an ex-president of the HOA at the time used HOA money inappropriately after Hurricane Jimena. Juan Carlos Gonzalez, another HOA monthly dues hold-out claims that the HOA has overspent on projects that could have been completed for less or that were not necessary to begin with. Juan Carlos also claims that the HOA monthly dues are not a mandatory expense. The wording on Juan Carlos’s contract with the HOA states that the monthly fee is a “cooperation;” in other words, it is not mandatory.
Regardless of all that, it seems that the HOA of Costa del Mar doesn’t like residents who do not pay HOA dues and over the years the association tried to enact rules to limit access to the property by residents who have not paid. There is the problem. It would seem a very far legal stretch, especially here in Mexico, to try to deny someone access to their property if they have not paid their HOA fees but that is exactly what the Costa del Mar HOA did.
On October 20th of 2012 the Costa del Mar HOA meeting minutes pretty much tell the whole story. At the previous meeting, October of 2011, it was noted that a motion to not allow vehicles into the subdivision if the owners owed more than 10,000 pesos in dues was passed with 97.7% voting in favor of the lock out. It is stated that this will affect only one resident, that resident being Francisco Velez Villa. Was this legal? According to Ken Unrein, a former HOA president who tried to enact a similar HOA rule several years earlier, it certainly was not legal. Unrein claims to have advised the HOA against trying to enact a rule to deny residents access to their property. His advice was not heeded. Click here for full meeting notes.
The lock out started the middle of January. Most of the time Francisco was able to get his car in and out of Costa del Mar using someone else’s pass or by having a friend come out and open the gate. During the lockout there were at least two or three occasions when Francisco would simply leave his car blocking the entrance gate. Francisco was told by the Ministerio Publico, District Attorney, in Guaymas that he had the right to do this. If Francisco’s car was there blocking the entrance gate then residents would enter and exit the development via the exit gate that the security guard would open up for them. This went on until the altercation of the 29th of February. Apparently on this day Ron had to enter Costa del Mar via the exit gate and that seems to have sent him into the rampage that followed. I asked Ron flat out why he went over to Francisco’s house. He told me he wanted to inform Francisco of the rules. This made little sense to me. Francisco was already well aware of the rules; it had been well over a month now since the lock out started. I think it is safe to say that Ron wanted to give Francisco a piece of his mind. The video clearly shows that not only did he wish to give Francisco a piece of his mind he was willing to throw in a couple of rocks to boot.
It is stated in the October 2012 HOA minutes that in the middle of January the lock out began and that at one time police were called to CDM because of the incident and that a law suit was initiated but nothing came of it. Then the minutes go on to describe another event. This is the event that Ron instigated with Francisco and because of this there is a “criminal claim against five persons and they are the Board Members, Diane Cimetta, Karleen Leonard, Myriam de la Torre, Dave Merrill and Ronald Glenn Babington and one guard and whoever else is responsible.” Those names are mentioned in the preliminary investigation. But when you read over all the paper work from the preliminary investigation right up to the law suit itself there is only one man’s name on any of it of any real importance. That would be Ron Babington. Nowhere else in any paper work that I have seen, and I think I have seen just about all of it, is anyone else other than Ron accused of assault. I spoke to Ron and Karleen’s lawyer and not unsurprisingly he insists that board members were accused of a crime. I went down to speak with the Ministerio Publico and the Secretary of the Judge who both confirmed to me that the only person of interest in this case and the only person accused of assault was Ron Babington. I also spoke with Miriam de la Torre, the administrator for the HOA. She told me she was never called to down to the Ministerio Publico to give any kind of statement. She told me that she certainly was not accused of assault.
Now here is a big issue. The HOA paid almost all of the cost for Ron’s defense. I am not exactly sure how much Ron paid out of his pocket. The figure of $3,500 dollars was mentioned. The story goes something like this. The very day of the assault it appears Karleen Leonard hired Pedro Garcia Palazuelos. A very good attorney, (see our South of the Border
Land of Disorder series). It would seem that Diane Cimetta, the president of the HOA, may have lent Karleen, the Vice President of the HOA, some of the money that was paid to Pedro the lawyer. HOA accounting records show that Karleen was reimbursed with three different checks from the HOA for a grand total of $98,527.27 pesos. Diane Cimetta was reimbursed from the HOA for $127,550 pesos. The payments were listed under unexpected expenses. How important is it to hire a good lawyer? Part of the money that was for Ron’s defense, $12,083 pesos to be exact, also went to an expert witness from Hermosillo who testified that the video had been manipulated and/or edited. It would seem the video was not admissible in court. I asked local video expert Abraham Castro to do me a favor and to go over the video. Abraham owns a successful video production studio called Onix in Empalme. Abraham has produced some of the finest videos you will ever see of San Carlos. He is also an expert in special effects and computer animation. He went through the video frame by frame. He was not paid for his consultation. His expert conclusion was that the video is in fact raw footage that has not been edited or re cut in any way.
Ron was found not guilty of assault and the Costa del Mar HOA paid a grand total of $226,077.72 pesos in lawyer and expert witness fees. Check numbers 3376, 3381, 3383, and 3384 apparently were signed by the treasurer at the time, Dave Merrill, to reimburse Diane and Karleen. Dave Merrill for some reason resigned as treasurer of the board in March, just weeks after the incident.
Are HOA board members allowed to use HOA money if they are involved in a law suit stemming from HOA matters? Karleen showed me a motion made by Dave Merrill from a 2009 board meeting that states the CDM Home Owners Association, its Board (past or present), Special Committees (past or present), or Administrator, is equally liable for all of the CDM owners. The motion was approved with a 73.4% yes vote. Karleen said this vote was notarized and thus protects HOA board members. Ken Unrein an ex-HOA president is of a different opinion and believes this does not change any of the bylaws and that HOA money should not have been used for Ron’s defense.
The most telling aspect of this whole case is the simple fact that the HOA by an overwhelming majority of 97.7% decided to try to lock out a Mexican national from driving his car onto his own property. Was this legal? That depends on the lawyer you ask. Was it moral? You have to ask yourself that. Was it a good idea? The answer to that I think in retrospect is a resounding no. The policy of locking an owner out for lack of payment of HOA dues ended on the 29th of February, the day of the incident. Was it fair that the HOA pay for the majority of Ron’s defense? I personally think that it was fair for the 97.7% who voted for the lockout. As for the 2.3% that voted against locking Francisco out, at least they can now have the satisfaction of saying “I told you so.”
Even though the judge in Guaymas found Ron not guilty of assault the Ministerio Publico has appealed the case in Hermosillo. Francisco Velez Villa has also appealed. Francisco has spent a fair amount of time in Hermosillo over the last month. In an interesting turn of events what seems to be happening is that the courts in Hermosillo are rejecting both appeals. That does not mean that this is over; actually it may be far from over. The appeals have been rejected because the case was so poorly investigated that the higher court in Hermosillo is going to return the whole sordid mess back to the Ministerio Publico here in Guaymas and the case will be reopened. The video will then be submitted again and will be reviewed by video experts from the courts in Hermosillo. This is what Francisco has been led to believe by the upper court in Hermosillo.
I wonder if the HOA is going to continue to pay for round two of Ron’s defense if all this truly comes back to Guaymas and the local Ministerio Publico. Francisco has told me he simply wants to be reimbursed now for the tremendous amount of money he has spent on legal fees and an apology from Ron. It might be a better idea for the two sides to get together this time and talk this thing out with a professional arbitrator rather than a lawyer. If they had done that in the first place the $226,077.72 pesos might have been better spent on arbitration and compensation. If that had been the route chosen then this whole sordid mess might now truly be a piece of ancient history and behind them all.