Dear Ms.Gonzalez,
Attached is an 8-22-14 check issued by my wife for $67.77
for the Special Assessment. On the back there appears " For
Deposit Only 130117949821" and " Credited to
130117949847 Return Account130117949847 "
On the front of the check in the memo portion is" Bldg 14
Apt 401". In view of the fact that the check was deposited it
appears that my wife did not place a" restrictive
endorsement" on the back of the check and the memo
portion is and was not a restrictive endorsement or even if it
was it did not preclude the depositing, cashing, and clearing of
the check. Compare this to the three(3) attached checks
issued and received with a similar notation( and nothing on
the back of the checks when issued) in April 2015 and
returned by Tamar Shendell's letter April 17,2015 on no
other grounds other than there was a restrictive endorsement
on the check.
The August 22,2014 check is not reflected as a credit in
the October 3,2014,January 7,2015, March 4,2015, March
19,2015 (amending the January 7,2015 letter),the April 17
(return check) and the April 21,2015 ( notice of foreclosure) of
theShendell lawyer letters.
In addition to the bogus excuse of a restrictive endorsement
check issue there is also a serious issue of why the August
22,2014 check issued by my wife was deposited purportedly
in one account and then credited to another and "then not
heard of since" ?
Rose Cilone ...... was disqualified from being on the Director
Election Ballot for the recent election because of an August
assessment check she tried to hand deliver for $130.09 that
was never processed. The ground given was "restrictive
endorsement". She was never notified this was an issue until
the day of the election when she was disqualified. Tom
Anthony was also disqualified from being on the most recent
election ballot for a stale and non existent delinquency of an
unpaid balance of $2.59.
The law is clear the so-called "restrictive endorsement "
excuse is pre-textual nonsense. Williston On Contracts,
Data Base Updated may 2014,WestLaw WILLSTN-CN,
Section 60-31 (4th Ed.) defines "restrictive endorsement" as
follows:
" A restrictive endorsement can be either special or
blank...and is an endorsement that limits the right to payment.
The endorsement limits the right to payment to a particular
person,...restricting further transfer or negotiation of the
instrument, or by conditioning the right of payment. Other
forms of restrictive endorsements are an endorsement that
limits payment to a bank or particular account ..or limiting
payment to an agent or fiduciary...An example of an
endorsement restricting payment to a particular person is 'Pay
John Doe only,{Signature}.' An example of an endorsement
restricting or prohibiting further transfer or negotiation is 'Pay
John Doe on condition that he does not further transfer or
negotiate this instrument,{signature}.'An example of an
endorsement conditioning right to payment is 'Pay John Doe
only after he delivers shipment parts {signature}'An example of
endorsement limiting payment to a bank or particular account
is 'For deposit to First National Bank Account
Number.....{signature}".
None of these endorsements appeared on the back of three
(3) checks that Tamar Shendell returned on behalf of her
client, Palm Aire Condo Association II; nor does it appear on
the back of the August 22,2014 check ,other than what was
placed by the payee or some unknown third party who may
have routed the check to a different account.
I would respectfully request on behalf of my wife (and
client) a full scale and in depth expeditious investigation by
the Florida Department of Business and Professional
Regulation (DBPR) as by letter April 21,2015,lawyer Tamar
Shendell on behalf of the condo association with the apparent
approval of the Board and six(6 ) of its directors {albeit, not
shown to or approved by opposition directors Peter Kretz or
Joseph ONeil} ) gave notice her law firm would be
commencing foreclosure proceedings i.e." The Association
intends to foreclose the lien and collect the unpaid amount
within 30 days of this letter... { April 21,2015} being
provided to you" This despite prior communications and
correspondence showing all assessment charges (
quarterly and special) were paid, tendered, and/or refused;
elimination of an $1,000 attorney fee charge because of the
admitted confusion in the recording and reporting of these
type of payments caused by the prior management company,
and an auditor 's disclaimer of opinion October 15,2014 ,in
specific part because of a failure of the condo association's
accounting system to timely report and record assessments.
In recent publications the Condo Association and its six(6)
majority directors claimed that they were having to pay
thousands of dollars of attorney fees and other costs as a
result of the current controversy with the two (2) minority
directors and the group of concerned condo owners.
However, if you take Tamar Shendell's stated balance in the
April 21,2015 notice of foreclosure letter and subtract the
$67.77 paid by August 22,2014 check (never properly
credited) and the $1512.14 in my escrow account waiting to
be paid, you have an amount of $659.03 as the balance
purportedly owed and the damage basis for the threatened
foreclosure proceedings. Leaving aside the foregoing amount
is in dispute ,it also does not seem, to be sound condo
association policy to pursue a foreclosure proceeding of this
minimal amount in this context where serious questions have
been raised regarding the Association 's accounting.
Please confirm receipt of this email communication and the
attachments. I look forward to DBPR's prompt attention to this
matter. My wife and other condo owners are prepared to
cooperate fully as well as Directors Peter Kretz and Joe
O'Neil as I understand. Copies of this email will be sent to the
Shendells, the Board , the M&M Management Company (
James Martin and Brenda Moscowitz) and the concerned
condo and interested condo owners as I believe everything
should be out in the open. Thank you for your anticipated
courtesy and cooperation.
Respectfully,
S/
Norman
B. Arnoff
917-
912-1165