ROBERT T. SPJUTE, ESQ.

(13866)
SHUMWAY VAN
8 East Broadway, Suite 550
Salt Lake City, Utah 84111
Phone: (801) 478-8080
Fax: (801) 478-8088
tee@shumwayvan.com
Attorney for Defendant
and Counterclaim Plaintiffs

IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY,

SALT LAKE DEPARTMENT, STATE OF UTAH

ARLINGTON PLACE HOME-OWNERS

ASSOCIATION, a domestic non-profit COUNTERCLAIM
corporation,

Plaintiff,
Case No.: 209910403
v.
Judge: Linda Jones
JON MAUER, an individual;

Defendant and Counterclaim Tier 3

Plaintiff.

DAVID ROBINSON, an individual;

MATTHEW HINOJOS, an individual;

Counterclaim Plaintiffs.

FUTURE COMMUNITY SERVICES INC., a

Utah Corporation; FCS COMMUNITY
MANAGEMENT dba of FUTURE
COMMUNITY SERVICES INC.; MICHAEL
JOHNSON, an individual; SEB LEGAL, a
Utah Limited Liability Company; VIAL
FOTHERINGHAM, a Utah Limited Liability
Partnership; DEVIN LAWRENCE, an
individual; CHRISTINE KEARL, an
individual; OLIVIA MORETON, an
individual; BEN MAXWELL, an individual;
JON DOES 1–10.

Third Party Defendants.

COMES NOW JON MAUER (“Mr. Mauer”), DAVID ROBINSON, (“Mr. Robinson”),

and MATTHEW HINOJOS (“Mr. Hinojos”) (collectively, “Counterclaim Plaintiffs” or

“Defendants”), and files their Counterclaim against ARLINGTON PLACE HOME-OWNERS

ASSOCIATION (“Arlington” or “Plaintiff”) and does hereby complain as follows:

PARTIES/JURISDICTION/VENUE/TIER

1. The events and circumstances giving rise to this Complaint occurred in Salt Lake County,

Utah.

2. Mr. Mauer, and individual, is a resident of Salt Lake County, who resides in Salt Lake

City, Utah.

3. Mr. Hinojos, and individual, is a resident of Salt Lake County, who resides in Salt Lake

City, Utah.

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 4. Mr. Robinson, and individual, is a resident of Salt Lake County, who resides in Salt Lake

City, Utah.

5. Arlington is an incorporated association of homeowners, organized under the laws of the

State of Utah.

6. This Court has subject jurisdiction pursuant to Utah Code Ann. § 78A-5-102 and venue

based on Utah Code Ann. § 78B-3-304 and 307.

7. This complaint meets the jurisdictional damages amounts required to be classified as a

Tier 3 case under Rule 26(c)(3) of the Utah Rules of Civil Procedure.

GENERAL ALLEGATIONS

8. Mr. Mauer owns Unit #308 located at Arlington Place, 115 South 1100 East Salt Lake

City UT 84102 (the “Property”).

9. The Property is part of Arlington Place Home-Owners Association.

10. In 2014, Arlington began foreclosing on the Property for assessments and fees owed by

Mr. Mauer.

11. In 2014, Mr. Robinson agreed to purchase the Property.

12. Working with Arlington’ attorney, Patsy Young, Mr. Mauer signed a Power of Attorney

(“POA”) in favor of Mr. Robinson regarding the Property.

13. Mr. Mauer delivered electronically said POA to Arlington through Patsy Young.

14. Arlington and Mr. Robinson entered into a mutually agreed settlement agreement

(“Settlement Agreement”) wherein Mr. Robinson agreed to bring current a negotiated and

agreed to amount of Mr. Mauer’s past due HOA fees and costs.

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 15. The Settlement Agreement is between only Mr. Robinson and Arlington.

16. Neither Mr. Mauer nor Mr. Hinojos is a party to the Settlement Agreement.

17. The Settlement Agreement places sole responsibility on Mr. Robinson for monthly

assessments, special assessments, and dues.

18. The Settlement Agreement does not provide for a specific “purchase date.”

19. Mr. Robinson signed and returned the Settlement Agreement to Arlington through Patsy

Young.

20. Mr. Robinson fulfilled the terms of the Settlement Agreement.

21. Mr. Robinson resides at the Property and has been the authorized agent for the Property

since 2014.

22. The Property remains in the name of Mr. Mauer.

23. In 2016, Mr. Robinson became a candidate in one of the largest political races in Utah.

24. In order to prepare for the political race, Mr. Robinson pre-paid several months of

mortgage payments and Arlington assessments for the Property.

25. Sometime in 2016, Arlington violated the Arlington Place House Rules by sending the

Property to collections without contacting Mr. Robinson or Mr. Mauer, or without any other

notice.

26. Because Mr. Robinson and Mr. Mauer were not aware of the alleged arrears, they did not

have an opportunity to attend a hearing on the fees or remedy the alleged delinquencies.

27. Because he was not given notice, Mr. Robinson also did not know the amount that was

allegedly past due.

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 28. A lien was placed on the Property, which led to foreclosure proceedings.

29. When Mr. Robinson learned of the pending foreclosure, he quickly contacted Olivia

Moreton, the President of the Arlington Place HOA Board.

30. Olivia Moreton refused to talk with Mr. Robinson.

31. Mr. Robinson contacted Dan Laing with Future Community Services Inc. (“FCS”), the

management company for Arlington.

32. Dan Laing would not talk with Mr. Robinson and would not answer simple questions as

to the notice.

33. Mr. Robinson was told Arlington and FCS would not accept any further payment of

monthly assessments from Mr. Robinson.

34. When Olivia Moreton, Arlington, Dan Laing, and FCS refused to communicate with Mr.

Robinson regarding the alleged late fees, Mr. Robinson drove to the address listed for bill

paying.

35. Mr. Robinson anticipated that he would find someone who works for FCS who could

help him.

36. However, the address listed for bill paying is merely a FedEx or Postal pick-up and

delivery location.

37. Mr. Robinson asked the postal employees about FCS and was told that FCS maintains a

PO Box there.

38. Mr. Robinson asked about FCS’s pickup schedule and was told that FCS does not have a

set schedule and do not pick up their mail on a consistent basis.

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 39. Mr. Robinson was later informed that FCS considers the date they pick up payment from

the PO Box or even later, not the date the payment was mailed or received at the PO Box, as the

date of arrival.

40. Therefore, even if a payment is timely delivered to FCS’s mailbox, if FCS does not pick

up the mail before the due date of payment, the payment is considered late.

41. Eventually, Mr. Robinson tracked down SEB Legal, the law firm/collection agency who

claimed to represent Plaintiff’s Arlington Place and FCS.

42. Mr. Robinson made an in-person visit to SEB Legal, and Chris Jenkins with SEB Legal

also stated they would not talk with Mr. Robinson.

43. Mr. Robinson relayed to Arlington, FCS, Dan Laing, SEB Legal, Chris Jenkins, that Mr.

Robinson is the authorized agent for the Property and that according to Mr. Robinson’s cancelled

checks, the Property was not in arrears.

44. Arlington, FCS, Dan Laing, SEB Legal, Chris Jenkins ignored Mr. Robinson.

45. Even after SEB Legal confirmed the POA and Settlement Agreement with Ms. Patsy

Young and Jon Mauer, Arlington, FCS, Olivia Moreton, Dan Laing, Chris Jenkins, and SEB

Legal refused to communicate with Defendant Robinson.

46. Not only was Mr. Robinson unaware of the exact alleged amount owing, but also Mr.

Robinson did not know to whom the alleged payments were to be paid to.

47. Finally, SEB Legal instructed Mr. Robinson to request the alleged payoff amount from

then Arlington Board President, Olivia Moreton.

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 48. Olivia Moreton remained silent and ignored Defendant Robinson’s request for the payoff

amount, even though Defendant Robinson was simply following the instructions of the attorney

representing Arlington Place and FCS.

49. Although Arlington, Olivia Moreton, FCS, Dan Laing, and SEB Legal would not

communicate with Mr. Robinson regarding the alleged arrears, in frustration, Mr. Robinson

pointed to a notice on the desk at SEB Legal, asking the legal assistant to please verify the

amount they claimed Mr. Robinson owed.

50. The legal assistant remained quiet but nodded her head yes.

51. Mr. Robinson told the legal assistant he would pay that amount via check to Arlington to

ensure that all parties were aware of the payment.

52. Mr. Robinson then dropped a check in the mail for the exact amount and followed up via

email with Arlington, Olivia Moreton, FCS, Dan Laing, and SEB Legal.

53. Mr. Robinson asked that they notify him if there are any further questions.

54. Mr. Robinson’s check for the alleged arrears was cashed and there were no emails or

correspondence from Plaintiffs that all was not current.

55. Assuming everything was resolved, Mr. Robinson continued paying the monthly

assessments.

56. A few months later, Mr. Robinson was faced with another foreclosure notice, alleging

past due fees.

57. Once again, without prior notice, the Property was slated for foreclosure sale.

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 58. Mr. Robinson returned to SEB Legal and was told that even though Defendant Robinson

continued to pay his monthly HOA assessments, Mr. Robinson had to pay even more money, or

else the property will be sold.

59. Mr. Robinson was told that when he paid the prior sum, FCS charged his account an

additional $25.00 forwarding fee; therefore, Robinson’s account was short $25.00.

60. Therefore, Mr. Robinson was told that the account was never brought current, and

technically never left collections based on the $25.00.

61. Under protest, but facing foreclosure, Mr. Robinson was forced to immediately pay an

additional $1,658.64.

62. Although Mr. Robinson paid the $1,658.64 demanded, Mr. Robinson refused to ignore

Arlington’s clear violations of the Arlington House Rules and the strong-arm tactics they used to

extort money from Mr. Robinson.

63. Mr. Robinson credited the $1,658.64 to his Arlington Place HOA dues account, and once

those monies were consumed, Defendant Robinson began paying Arlington Place HOA fees.

64. In March 2017, Mr. Hinojos became a resident at the Property.

65. In May 2017, Mr. Robinson reached out via phone to the new Arlington Place Board

President, now Christine Kearl.

66. Although Christine Kearl was a previous Arlington Place Board Member, she claimed

she knew nothing of Mr. Robinson’s trouble and the alleged arrears associated with Mr.

Robinson and the Property.

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 67. Christine Kearl stated that Mr. Robinson is not and had not been placed on Arlington’s

non-payment or late list.

68. Christine Kearl also stated that Arlington had not authorized SEB Legal to keep 50% of

Mr. Robinson’s HOA monies.

69. Shortly thereafter, Mr. Robinson met in person with Christine Kearl and then Board

Member Ben Maxwell.

70. Mr. Robinson requested that Christine Kearl and Ben Maxwell contact Patsy Young for

documentation of the POA and Settlement Agreement associated with Mr. Robinson and the

Property.

71. In May 2017, Mr. Robinson reached out to the State of Utah’s Consumer Protection.

72. Mr. Robinson was instructed by Consumer Protection to submit a complaint but was told

there is nothing Consumer Protection can do because the Utah State Legislature has not given

authority to Consumer Protection to protect residents with issues relating to HOA abuse.

73. Mr. Robinson submitted a summary and related documents to Utah’s Consumer

Protection.

74. In late May 2017, Mr. Robinson contacted Ms. Patsy Young in an attempt to obtain a

copy of the POA and Settlement Agreement associated with the Property so Mr. Robinson could

forward copies to the necessary parties.

75. Shortly thereafter, Patsy Young informed Mr. Robinson the subject documents no longer

existed in their system due to computer server issues and that they had no hard copies.

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 76. In November 2017, it appears Arlington and/or FCS sent Mr. Robinson’s account to Vial

Fotheringham for collections.

77. During the years 2016, 2017, and 2018, Mr. Robinson was told his checks would not be

accepted and or cashed by Arlington, FCS, or SEB Legal.

78. Mr. Robinson was denied one location to pay his monthly dues, only to have another

location withheld from him.

79. Even with all the obstacles imposed by Arlington, FCS, SEB Legal, and Vial

Fotheringham, according to Mr. Robinson’s accounting and bank statements, Mr. Robinson

continues to be ahead in his assessment payments.

80. Mr. Robinson continues to hand-deliver a check every month to Vial Fotheringham’s

office.

81. At Vial Fotheringham, there is no secure drop box and Mr. Robinson is often times met

with a locked door and closed office during business hours, requiring a return trip or sliding a

check under the door.

82. In addition, the monthly statements are unclear, and they do not accurately reflect

payments.

83. Late fees are erroneously charged, and the alleged amount owed varies by thousands of

dollars.

84. Also, Vial Fotheringham not only keeps 50% of the monthly assessment but they also

keep 50% of the payments toward a special assessment related to an elevator.

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 85. Although the Arlington Place annual meetings are reserved for Homeowners, Board

Member Olivia Moreton specifically invited Mr. Robinson to attend the 2018 annual

homeowners meeting.

86. Upon arrival to the homeowners meeting, Mr. Robinson was immediately met by an on-

duty security officer and was ushered to the end of the hallway.

87. Current and former Arlington Board Members, FCS employee(s), and security

surrounded Mr. Robinson telling him they were unified in preventing Mr. Robinson from

attending the meeting.

88. This experience was humiliating, embarrassing, and Mr. Robinson felt threatened.

89. As Mr. Robinson attempted to leave, a resident of Arlington Place, who Mr. Robinson

had never met, approached Mr. Robinson, claiming the resident is a Salt Lake City Police

Officer.

90. The Police Officer accused Mr. Robinson of not paying his HOA dues and threatened Mr.

Robinson, telling him he will be physically removed from the building, never to return.

91. In May of 2018, Mr. Hinojos noticed his access code to the community room was not

working.

92. Mr. Hinojos has a disability wherein it is important that he has access to Arlington’s

common areas and exercise equipment.

93. Mr. Robinson notified Christine Kearl that the access code did not work, but Christine

Kearl did not reply.

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 94. Over the next several months, Mr. Robinson made numerous inquiries as to why the

Property’s access to common areas was denied.

95. Well over one year passed and neither Arlington nor Arlington Board Members provided

and explanation or reason why Mr. Robinson and Mr. Hinojos Property was denied access.

96. In an effort to determine the root of conflict with Arlington and FCS, Mr. Robinson,

through his attorney, requested documents from Arlington Place.

97. Pursuant to Utah Code Ann. § 16-6a-1602, Mr. Robinson made several specific

document requests over the course of months and even years.

98. Although the document request should have resulted in the production of late notices,

violations, signed contracts, and potentially hundreds of pages of emails, few items were

produced.

99. No proof or copies of late notices were produced.

100. This is further evidence that Arlington and the Arlington HOA Board did not

follow its own House Rules, Regulations, and Policies.

101. In fact, Mr. Jacob Miller of Vial Fotheringham replied, “…the Association will

not be responding to Mr. Mauer’s request, as it has no obligation to do so…a records request is

made in good faith and for a proper purpose, which Mr. Mauer’s clearly is not…This proposal

shows that the records request is flippant, frivolous, and made in bad faith. Mr. Mauer’s records

request is merely an endeavor to gain negotiation leverage, with no legitimate purpose outside of

harassing and burdening my client. We will not produce…. because you have asked in bad faith

and will use against us.”

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 102. This type of disregard to the law by Vial Fotheringham continued for many months and

even years.

103. On April 8, 2019, Devin Lawrence, a maintenance employee at Arlington Place and

believed to be an employee of FCS, falsely accused Mr. Robinson, who is gay, of having HIV,

STD’s, using drugs, being a drug addict, and more.

104. Devin Lawrence told Mr. Robinson that Devin has nothing to worry about because he,

Devin, is insured through FCS with lots of insurance.

105. Devin Lawrence also approached Mr. Robinson, while taking off his glasses, telling Mr.

Robinson to swing at Devin Lawrence, saying, “come on, hit me, hit me, come on”.

106. Devin Lawrence told Mr. Robinson he would break Mr. Robinson in half.

107. Devin Lawrence then made the gross and obscene gesture of masturbating, then going

through the motions as if Devin Lawrence was throwing his semen on Mr. Robinson.

108. Devin Lawrence did this act several times.

109. Devin Lawrence also kept flipping off Mr. Robinson with his middle finger.

110. Mr. Robinson immediately went back to his condo and began typing a summary of the

incident to Mr. Robinson’s attorney and Arlington’s Board.

111. While typing, the glass doors of the community room, one floor above the Property, were

abruptly opened and Devin Lawrence yelled, “Fuck you David” and/or “Fuck you, David

Robinson.” Devin Lawrence then slammed the doors closed.

112. Mr. Robinson immediately notified via email, his attorney and Arlington Place Board

Members, of the outrageous incident.

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 113. Mr. Robinson contacted the Police and he was told this incident is sexual assault and to

file a Police Report/Cease and Desist.

114. As instructed, Mr. Robinson filed a complaint.

115. No one from Arlington, Arlington Place Board, FCS, or Vial Fotheringham contacted Mr.

Robinson about the incident.

116. Mr. Robinson obtained HIV, STD, and drug tests, to show he was negative on all

accusations.

117. On May 17, 2019, Mr. Robinson was vacuuming the lobby at Arlington.

118. While vacuuming, Mr. Robinson sensed there was someone behind him.

119. Mr. Robinson turned around and Devin Lawrence was standing just two or three feet

away, wearing a raincoat, with the hood pulled over his head.

120. Devin Lawrence was recording Mr. Robinson with his phone.

121. Shortly thereafter, Mr. Robinson sent an email to Arlington Place President Christine

Kearl and the other Board Members, informing them of the incident.

122. Mr. Robinson also requested the video recording from the security cameras that monitor

the lobby, the place of the incident.

123. Mr. Robinson’s notice and repeated video requests were ignored.

124. Mr. Robinson also contacted the Police and was instructed to add the incident to his

recent police report.

125. Arlington and the Arlington Place Board later claimed the requested video footage was

damaged and does not exist.

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 126. On May 21, 2019, Mr. Robinson relayed via email to Christine Kearl, the Arlington

Board, and FCS the facts surrounding Mr. Hinojos disability, and the importance of Mr. Hinojos

accessing the common amenities.

127. Mr. Robinson relayed to them that Mr. Hinojos has Type 1 diabetes, has had since he was

a child, and that Mr. Hinojos has a very disciplined schedule with his food/diet, exercise, and

sleep.

128. Mr. Robinson did not receive a reply from Christine Kearl, the Arlington Board, or FCS.

129. On May 26, 2019, Mr. Robinson forwarded to Christine Kearl and the Arlington Board, a

letter from Laura Burton, Mr. Hinojos’s nurse practitioner.

130. Laura Burton relayed to Christine Kearl the importance of access for Mr. Hinojos.

131. Mr. Robinson also relayed to Christine Kearl the hours for the gym Mr. Hinojos belongs

to have changed, which prevents Mr. Hinojos from exercising on Sundays after Mr. Hinojos

finishes his work day.

132. After numerous attempts and no response from the Arlington or the Arlington Place

Board, Mr. Hinojos took the issue to the Disability Law Center.

133. The Disability Law Center, after reviewing documents and verifying the facts

surrounding Mr. Robinson and Mr. Hinojos, represented Mr. Robinson regarding sexual

harassment and assault and Mr. Hinojos’s “Reasonable Accommodation”.

134. After many attempts, the Disability Law Center was also unable to arrange for a

“Reasonable Accommodation” from Arlington Place for Mr. Hinojos and his disability.

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 135. Vial Fotheringham suggested that Mr. Hinojos do a Google search for a gym he can

attend.

136. Due to Arlington’s unwillingness to produce relevant documents and grant a “Reasonable

Accommodation” to Mr. Hinojos, the Disability Law Center filed a formal complaint with the

Utah Labor Commission.

137. A formal complaint was also filed with the Labor Commission for Mr. Robinson

regarding sexual harassment and assault.

138. An investigation was completed, and the investigator concluded no violation by

Arlington, the Arlington Board, FCS, and Devin Lawrence regarding the allegations by Mr.

Robinson and Mr. Hinojos.

139. Upon review of the findings, Mr. Robinson and Mr. Hinojos noticed several erroneous

and misleading statements by Arlington, the Arlington Board, Devin Lawrence, prior Board

member Ben Maxwell, and attorneys at Vial Fotheringham.

140. Mr. Robinson and Hinojos filed a timely appeal.

141. Due to terminated funding at the Disability Law Center, they withdrew as Counsel.

142. Finally, in March 2020, approximately 10 months after the initial request, Mr. Hinojos

was permitted to use the exercise room at Arlington Place.

143. On numerous occasions, Arlington Place residents have confronted Mr. Robinson, falsely

accusing him of not paying his dues associated with the Property.

144. Arlington, the Arlington Place Board, FCS, and attorneys at Vial Fotheringham have

refused to stop the allegations and abuse.

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 145. Even after Devin Lawrence’s sexual assault of Mr. Robinson, Devin Lawrence continues

his employment at Arlington Place and to harass Mr. Robinson.

146. Devin Lawrence will flip off Mr. Robinson, snicker at Mr. Robinson as Mr. Robinson

leaves or enters the building, video record Mr. Robinson in the lobby, and warn

subcontractors/suppliers to not communicate with Mr. Robinson.

147. Mr. Robinson has notified the Arlington Board, FCS, and SEB Legal numerous times of

Devin Lawrence’s harassment.

148. Devin Lawrence continually harasses Mr. Robinson and the Arlington Board, FCS, and

Vial Fotheringham has not stopped the continued harassment.

COUNTERCLAIMS

Defendants allege the following Counter Claims.

FIRST CLAIM FOR RELIEF

(Breach of Contract)

149. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

150. The Arlington Place House Rules, Regulations and Policies is a contract between

Arlington and Defendants.

151. The Arlington Place House Rules, Regulations and Policies provides rules and

obligations that govern the parties’ actions.

152. A failure to act in accordance with Arlington Place House Rules, Regulations and

Policies is a breach of that contract.

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 153. The Arlington Place House Rules, Regulations and Policies require Arlington to provide

notice of late fees and an opportunity for a hearing to appeal the late fees.

154. Arlington failed to provide Defendants notice of alleged late fees and failed to provide

Defendants with a hearing in order to appeal the late fees.

155. By failing to adhere to the Arlington Place House Rules, Regulations and Policies,

Arlington breached its contract with Defendants.

156. As a result of Arlington’s breach, Defendants have suffered substantial financial and

emotional damages.

SECOND CLAIM FOR RELIEF

(Implied Covenant of Good Faith and Fair Dealing)

157. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

158. Defendants have several contracts with Arlington.

159. These contracts include the Arlington Place House Rules, Regulations and Policies, the

Arlington Place Fair Housing Resolution (2013), the Settlement Agreement, and the Power of

Attorney.

160. These contracts have an implied covenant of good faith and fair dealing that wherein the

parties each impliedly promise not to intentionally or purposely do anything that will destroy or

injure the other party’s right to receive the fruits of the contract.

161. Arlington breached this covenant when it took deliberate steps to avoid its obligations

under the contracts, and by denying what the contracts state and their terms and conditions.

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 162. As a result of Arlington’s breach, Defendants have suffered substantial financial and

emotional damages.

THIRD CLAIM FOR RELIEF

(Breach of Fiduciary Duty – Selective Enforcement

163. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

164. A fiduciary duty exists between Arlington and Defendants.

165. Because of this fiduciary duty, Arlington owes duties and obligations to Defendant.

166. As part of Arlington’s duties to Defendants is the duty to treat members fairly, which

requires consistent application of the rules to all members.

167. Arlington breached this duty owed to Defendants by singling out Mr. Robinson for unfair

debt collection practices, while at the same time not subjecting other members of Arlington Place

to unfair debt collection practices.

168. As a result of Arlington’s breach of fiduciary, Defendants have suffered substantial

financial and emotional damages.

169. Arlington’s breach of its duties is both the actual and proximate cause of Defendants’

damages.

FOURTH CLAIM FOR RELIEF

(Unjust Enrichment)

170. Defendants and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

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 171. Defendants have conferred a benefit upon Arlington by regularly paying their

assessments for basic services.

172. As part of the services Arlington is to provide to Defendants, Arlington is to permit

Defendants into common areas and access to exercise equipment.

173. Arlington is aware and has knowledge of this benefit that Defendants have conferred

upon it.

174. Arlington has refused to permit Defendants to use common area and has refused to

provide Defendants access to exercise equipment.

175. Under these circumstances it would be inequitable for Arlington to retain the benefit that

Defendants have conferred upon it while refusing Defendants access to common areas and

exercise equipment.

FIFTH CLAIM FOR RELIEF

(Promissory Estoppel/Detrimental Reliance)

176. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

177. Upon entering into the Settlement Agreement with Mr. Robinson, Arlington promised to

permit Mr. Robinson and Mr. Hinojos use to common area, notify them of any late fees, provide

them an opportunity to appear before the HOA Board before the Property could be put into

collections and foreclosure.

178. Arlington was aware of this promise.

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 179. Arlington knew, or should have known, that this promise would lead Mr. Robinson to

continue paying the amount due each month unless he was notified that there was an issue.

180. Arlington knew, or should have known, that this promise would lead Mr. Robinson, in

part, to continue paying the amount due each month in order to have access to the common areas.

181. Mr. Robinson reasonably relied on Arlington’s promise.

182. Arlington’s actions and inactions have resulted in substantial damages to Mr. Robinson

and Hinojos.

SIXTH CLAIM FOR RELIEF

(Breach of Quiet Enjoyment)

183. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

184. Arlington, through the Arlington Board and its employees, have made statements about

Mr. Robinson concerning allegations of non-payment, of fees, dues, assessment, and general

allegations of being a “freeloader.”

185. These rumors have spread to many of Mr. Robinson and Mr. Hinojos’ neighbors.

186. As a result of these rumors, it has been difficult to maintain relationships with those

whom Mr. Robinson and Mr. Hinojos lives near and has created a hostile environment.

187. This hostile environment has constructively evicted Mr. Robinson and Mr. Hinojos from

the Property

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 SEVENTH CLAIM FOR RELIEF
(Intentional Infliction of emotional distress)

188. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

189. Arlington’s Board acting in their official capacity on behalf of Arlington, acted in a way

that was outrageous, intolerable, and offended the generally accepted standards of decency and

morality when they invited Mr. Robinson to a meeting and then refusing permit him in and

surrounded him, ridiculed and threatened him.

190. As a direct or proximate cause of the aforementioned acts, Mr. Robinson suffered severe

emotional distress.

EIGHTH CLAIM FOR RELIEF

(Negligent Infliction of Emotional Distress)

191. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

192. Arlington’s Board acting in their official capacity on behalf of Arlington, should have

realized that inviting Mr. Robinson to a party and then refusing to permit him in then surrounded

him and ridiculed him involved an unreasonable risk of causing emotional distress to Mr.

Robinson.

193. Arlington’s Board acting in their official capacity on behalf of Arlington, should have

realized that their conduct could cause the sort of emotional distress that might result in illness or

bodily harm.

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 194. Arlington, through Arlington’s Board, conduct unintentionally caused Mr. Robinson to

sustain severe emotional distress, characterized by illness or bodily harm.

NINTH CLAIM FOR RELIEF

(Negligence)

195. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

196. Arlington owes a duty to Defendants, to inform them of any debts, to provide them a

hearing concerning the debts before the debts were sent to collections, provide them with

accurate accounting of any alleged debt, accept payment of debts from Defendants, and at the

very least, return corresponds wherein Defendants are seeking to inquire concerning alleged

debts so that they can be paid off.

197. Arlington breached this duty when it failed to provide Mr. Robinson notice of alleged

debts, failed to provide Mr. Robinson a hearing concerning the debts before the debts were sent

to collections, failed to provide Mr. Robinson with accurate accounting of any alleged debt,

failed to accept payment of debts from Mr. Robinson, failed to return corresponds wherein Mr.

Robinson sought to inquire concerning alleged debts so that they can be paid off.

198. As a result of Arlington’s breaches of its duties, Mr. Robinson has been damaged in the

form of unnecessary and excessive fees, interest, and attorney fees, and Defendants’ Property has

gone into foreclosure on more than one occasion.

199. Defendants’ damages are the actual and proximate result of Arlington’s breaches of its

duties.

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 TENTH CLAIM FOR RELIEF
(Gross Negligence)

200. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

201. In seeking to pay any alleged debt, Mr. Robinson over a period of years sought to contact

Arlington concerning any alleged debt in order to make sure that it was paid.

202. For years and years, all while knowing that Mr. Robinson was seeking to contact them,

Arlington continually and repeatedly failed to provide Mr. Robinson notice of alleged debts,

failed to provide Mr. Robinson a hearing concerning the debts before the debts were sent to

collections, failed to provide Mr. Robinson with accurate accounting of any alleged debt, failed

to accept payment of debts from Mr. Robinson, failed to return corresponds wherein Mr.

Robinson sought to inquire concerning debts so that they can be paid off.

203. Arlington’s continuous and repeated negligence toward Mr. Robinson for years long

stretch of time was a failure to observe even slight care, and Arlington was careless or reckless to

a degree that shows utter indifference to the consequences to Mr. Robinson.

204. As a result of Arlington’s carelessness and indifference, Defendants have faced, and are

still facing, substantial damages.

ELEVENTH CLAIM FOR RELIEF

(Defamation)

205. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

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 206. Arlington has published statements about Mr. Robinson concerning allegations of non-

payment, of fees, dues, assessment, of being HIV positive, and general allegations of being a

“freeloader.”

207. The statements Arlington published were false, and Arlington knew they were false.

208. The statements were defamatory and have caused damage to Mr. Robinson.

TWELFTH CLAIM FOR RELIEF

(Conspiracy)

209. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

210. Arlington organized and executed a plan with the Arlington Board, FCS, and SEB Legal

with the intent of forcing Mr. Robinson out of his home.

211. As part of this plan, Arlington, the Arlington Board, FCS, and SEB Legal had a meeting

of the minds that they would not acknowledge the Settlement Agreement, POA, and would not

uniformly apply the Arlington Place House Rules, Regulations and Policies with respect to their

dealings with Mr. Robinson.

212. Arlington, the Arlington Board, FCS, and SEB Legal acted with the unlawful purpose to

discriminate against Mr. Robinson because he is a homosexual.

213. Defendants have suffered financial damages as a result of the acts of Arlington, the

Arlington Board, FCS, and SEB Legal.

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 THIRTEENTH CLAIM FOR RELIEF
(Tortious Interference with Economic Relations)

214. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

215. Mr. Robinson and Mr. Mauer have a business relationship.

216. In entering into the business relationship, Mr. Robinson paid thousands of dollars to

Arlington, on behalf of Mr. Mauer.

217. Mr. Robinson entered into the business relationship relying on the Settlement Agreement,

POA, Arlington Place Fair Housing Resolution (2013), and the Arlington Place House Rules,

Regulations and Policies.

218. Arlington intentionally interfered with Mr. Robinson’s existing or potential economic

relations.

219. Arlington did not interfere in Mr. Robinson’s economic relations with a proper purpose

but did so to cause harm to Mr. Robinson.

220. As a result of Arlington’s interference, Defendants have suffered substantial harm.

FOURTEENTH CLAIM FOR RELIEF

(Wrongful Lien – Utah Code Ann. §38-9-102)

221. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

222. Pursuant to Arlington Place House Rules, Regulations and Policies, it is required that a

tenant is notified of any alleged debts before any collection actions are instituted, or liens are

applied to the property.

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 223. Arlington has applied several liens against the Property without providing Mr. Robinson

and or Mr. Mauer any notice of the alleged debts, and therefore, the liens were wrongful.

224. As a result of this violation of the Utah Code, Defendants have suffered substantial

damages.

FIFTEENTH CLAIM FOR RELIEF

(Hostile Housing Environment - 24 C.F.R. 100.7)

225. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

226. The Code of Federal Regulations provides that a person is directly liable for one’s own

discriminatory housing practices, or by one’s employees’ discriminatory housing practices, or by

having the power to correct a discriminatory housing practices but failing to do so.

227. An employee of Arlington, Devin Lawrence, discriminated against Mr. Robinson when

he repeatedly shouting vulgar statements, making obscene gestures, and stalking Mr. Robinson

for being a homosexual.

228. Arlington, FCS, Michael Johnson, Brad Atchley, and Vial Fotheringham knew or should

have known about Devin Lawrence’s discriminatory housing practices.

229. Arlington took, and has taken no actions to prevent or stop Devin Lawrence’s

discriminatory housing practices.

230. As a result of violating federal law, Mr. Hinojos and Mr. Robinson have suffered

substantial damages.

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 SIXTEENTH CLAIM FOR RELIEF
(Reasonable Accommodation/) (Utah Code Ann.§ 57-21-5; 42 U.S.C.A. § 3604)

231. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

232. Both Federal and Utah Law provide that a landlord is to provide reasonable

accommodations for disabled tenants to afford that person full enjoyment of the premises.

233. In order for Mr. Hinojos to fully enjoy the premises, because of his disability it is

necessary that he have access to common areas at Arlington Place in order to use exercise

equipment.

234. Permitting someone access to an exercise room is very minor, reasonable, and required

no modifications to the premises.

235. Mr. Hinojos, Mr. Robinson, and the Disability Law Center repeatedly requested access

to the common areas.

236. Arlington routinely ignored and/or denied Mr. Hinojos requests for 10 months.

237. As a result of Arlington’s denial of a reasonable accommodation, Mr. Hinojos and Mr.

Robinson have suffered substantial damages.

SEVENTEENTH CLAIM FOR RELIEF

(Spoliation)

238. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

239. A Party has a duty to persevere evidence, including electronically stored information, if it

can be reasonably anticipated that the evidence may be used in a lawsuit.

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 240. Rule 37 of the Utah Rules of Civil Procedure provides that the court may sanction a party

that fails to preserve evidence.

241. Arlington and FCS has failed to abide by the duty to preserve evidence for this matter,

including but not limited to, not preserving video footage, emails, the Settlement Agreement, and

Mr. Robinson’s POA.

242. Mr. Mauer and Mr. Robinson have been damaged by said failure to preserve evidence

pertaining to this matter.

EIGHTEENTH CLAIM FOR RELIEF

(Violation of Document Production- Utah Code Ann. § 16-6a-1602)

243. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

244. Arlington is a nonprofit corporation.

245. Mr. Mauer and Mr. Robinson are members of Arlington.

246. Utah Code Ann. § 16-6a-1602, provides that a member of a nonprofit corporation is

entitled to inspect and copy any of the records of the nonprofit corporation.

247. Mr. Mauer and Mr. Robinson have made numerous requests to inspect documents of

Arlington.

248. Arlington has repeatedly refused to permit Mr. Mauer and Mr. Robinson to inspect the

documents they requested.

249. As a result of Arlington violating Utah Code Ann. § 16-6a-1602, Mr. Mauer, Mr.

Robinson and Mr. Hinojos have suffered substantial damages.

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 NINETEENTH CLAIM FOR RELIEF
(Breach of Fair Debt Collection Practices Act)

250. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

251. The Fair Debt Collection Practices Act requires debt collectors to validate a debt if it is

demanded, prohibits debt collectors from ignoring communication requests, lying about the

amount owed, using misleading correspondences, and prohibits grossly excessive attorney fees.

252. In attempting to collect alleged debt from Mr. Robinson, Arlington has refused to

validate Mr. Robinson’s alleged debt after it was demanded, has ignored communication requests

from Mr. Robinson, has lied about the amount Mr. Robinson owes, has used misleading

correspondences with Mr. Robinson, and/or had permitted grossly excessive attorney fees.

253. As a result of Arlington violating the Fair Debt Collection Practices Act, Defendants have

suffered substantial damages.

TWENTIETH CLAIM FOR RELIEF

(Mail Fraud – 18 U.S.C. § 1341)

254. Defendant and Counter-Claim Plaintiffs incorporates by reference the allegations set

forth above.

255. In trying to avoid payments from Mr. Robinson in order to rack up late fees, interest, and

attorney fees, Arlington devised a scheme to defraud Mr. Robinson.

256. The scheme was for FCS to collect Mr. Robinson’s checks, but to control when they

accepted the checks so they could label timely payments as late.

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 257. Pursuant to this scheme Arlington and FCS were able of charge additional fees and

interest to Mr. Robinson that they otherwise would not be entitled to, and SEB Legal was able to

rack up excessive attorney fees that they otherwise would not be entitled to.

258. As a result of said mail fraud, Defendants have suffered substantial damages.

TWENTY FIRST CLAIM FOR RELIEF

(Statute of Limitations)

259. The origination of many of the causes of actions in this matter are the direct result of the

Arlington avoiding any and all contact with Mr. Robinson as he was attempting to resolve the

issues without burdening the courts.

260. Principles of equity require that Arlington does not receive a benefit from harming

Defendants while at the same time avoiding contact with Defendants while Defendants were

actively attempting to resolve the issues.

261. According, if the statute of limitations in this counter claim has run, the court should

order that the statute of limitations be constructively tolled for this matter.

PRAYER FOR RELIEF

WHEREFORE, Defendants and Counterclaim Plaintiffs respectfully prays judgment against

Arlington as follows:

a. For judgment in its favor on all of its causes of action;

b. For an award of an amount to be proven at trial exceeding $300,000.00;

c. For an award of attorney fees and costs incurred by Defendants and Counterclaim

Plaintiffs, to the extent allowed by law, including any costs of collection;

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d. For declaratory judgment that statute of limitations have tolled;

e. For sanctions for failing to preserve evidence; and

f. For any other relief the Court deems appropriate under the circumstances.

DATED this 13th day of July, 2020.

SHUMWAY VAN

/s/ Robert T. Spjute

ROBERT T. SPJUTE, ESQ.
Attorneys for Plaintiffs

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