The purpose of this communication is two-fold: 1.) to set straight the inaccuracies in the Resort’s emails and public communications; and 2.) to answer frequently asked questions we are hearing from AAFPO Members.
We hope these FAQs answer one or more questions you may have. It’s a very lengthy list because the number of issues and questions cannot be reduced to brief and sweeping generalizations. We are providing you with this information because AAFPO Members deserve a forthright, factual, and full explanation of what is at stake.
1. Did the Resort lose money because of COVID last year?
While we are not in a position to comment on Angel Fire Resort Operations, L.L.C.’s financial condition, it did receive over $1.3M in federal COVID relief last year.
2. The Resort says that AAFPO’s actions will force it into bankruptcy. Is this true?
If the Resort declares bankruptcy as a result of AAFPO seeking access to its own Member database, the Resort has far bigger problems than its dispute with AAFPO.
3. The Resort is making out the AAFPO Board as a bunch of power-hungry Keystone Cops. What are your qualifications?
The AAFPO Board of Directors consists entirely of property owners who have volunteered their time and efforts to represent you. In terms of revenue, employees, and investors, some current board members have led companies and organizations larger than the Resort. The professional experience that the current board possesses include financial and risk management, corporate law, top leadership of publicly traded companies and government offices, contracts management, information technology, engineering and design, and other skills applicable to the governance of AAFPO on behalf of its Members.
The Board has no financial stake in representing you. Keep in mind that the Resort is a closely-held, private, for-profit entity that is free to act in its own self-interest.
4. What information is being withheld from AAFPO by the Resort?
The Resort continues to deny AAFPO access to even the most basic, verifiable information about AAFPO’s Members. We know of no other property owner’s association in the U.S. that lacks access to its own membership data. Information being withheld includes:
A complete list of AAFPO Members’ contact information. Obviously, AAFPO needs this information to ensure that all Members are receiving communications from AAFPO, including updates, notices, agendas, minutes, and ballots for elections. In an impressive feat of gaslighting, the Resort has repeatedly accused the AAFPO Board of failing to notify AAFPO Members before filing its lawsuit. The Resort is fully aware that AAFPO had no way to communicate with its own Members because the Resort was withholding this information at the time the lawsuit was filed.
We can confirm that there are many AAFPO Members who are not receiving communications from AAFPO despite AAFPO’s use of email addresses supplied by the Resort after the lawsuit was filed. We can confirm that there are AAFPO Members who have never received a single notice from AAFPO since they purchased their property despite receiving regular assessment invoices sent by the Resort. If the Resort can send invoices to AAFPO Members, yet some of those Members are not receiving notices from AAFPO, we can logically conclude that the Resort is withholding Member contact information.
Ownership data that links Members’ names to each Angel Fire property they own, including legal descriptions, street addresses, form and duration of ownership. AAFPO does not have access to even the most basic information about which properties AAFPO Members own. This makes it impossible for AAFPO to exercise its oversight and enforcement responsibilities.
Delinquency data showing which AAFPO Members are past-due on their assessments. AAFPO is the only legal entity that can file a lien against a Member’s property to ensure that unpaid assessments are eventually collected. Yet, AAFPO does not have access to Member delinquency data: how much is owed; for what year; for what property or properties; and under what form of ownership. This prevents the AAFPO Board from fulfilling its duty to ensure assessments are collected on behalf of the membership.
We do not know how much is owed in assessments by those Members who are delinquent. The Resort provided a list containing 893 entries for delinquent dues, but no complete names, nor any information on how much each Member owes. Assuming just one year of Base Membership for each delinquency, it would total approximately $1,250.000. If some of the delinquency entries have more than one unpaid annual assessment, the total could be many millions of dollars. Because we don’t have the basic information necessary to collect from delinquent Members, AAFPO Members who pay their assessments are effectively subsidizing those Members who do not.
5. Why should I care about AAFPO’s legal rights and duties that the Resort is refusing to acknowledge?
Because you own property within AAFPO, you are required to pay dues of more than $1,300 per year. The Resort directly receives 95% of those dues, amounting to more than $7 million dollars collected last fiscal year. In return for guaranteed payments to the Resort, the Court granted AAFPO oversight responsibility for the collection and expenditure of AAFPO Members’ dues. The lawsuit filed by AAFPO seeks a declaration from the Court affirming AAFPO’s right to information necessary to fulfill its oversight duties under the governing documents and New Mexico law.
Without enforcement of AAFPO’s rights and duties, the Resort will have the sole power to raise and spend your annual dues with no oversight.
6. Why has the election of AAFPO directors been delayed?
Seven Resort-sponsored candidates for the AAFPO Board filed an injunction to prevent the June election of three open Board seats. The Resort’s candidates argued that seven seats should be up for election based on a misreading of the New Mexico Nonprofit Corporation Act. Subsequently, the presiding judge permitted the election of seven Board positions but created specific rules for the election of the four additional Board seats. The judge also required verification of the accuracy and completeness of the Member data given to the Election Committee by the Resort.
As a result of the judge’s ruling, AAFPO’s By-Laws require a new nomination meeting in advance of preparing the ballot and sending out Annual Meeting Notices and election ballots. Article IV and Article VI of AAFPO’s By-laws contain the procedure for collecting nominations and preparing the ballot for the Annual Meeting and election:
“Not more than 45 days nor less than 30 days prior to the Annual Meeting, a Board of Directors meeting shall be held at which time nomination for membership on the Board of Directors will be accepted.”
Go to this link to access the By-Laws on AAFPO’s Official Website:
7. When will the election be held?
It all depends on the Resort. At present, we estimate the next election will take place in December. However, if the Resort continues to withhold information it promised to provide, we will likely end up back in court. The timing of the election depends on the Resort’s cooperation and the timeliness, accuracy, and completeness of the Member data it supplies.
In a recent hearing before Judge Chavez, the Resort was ordered to produce lists of AAFPO Members, including associated property information, as of August 27, 2021. However, the Resort is refusing to provide this information to AAFPO until a special master, authorized by the Court, reviews the list with a Resort employee who has access to the AAFPO Member database.
The Resort’s attorney has identified a special master who can’t review the information until sometime in early October. Our attorney has informed the Resort’s attorney that if AAFPO can review the list that was produced on August 27, 2021 by order of the Court, we might not have to use the special master to review the list. However, the Resort continues to refuse to provide this information to AAFPO.
8. How many property owners are entitled to vote in the annual election of AAFPO directors?
Simply put: We don’t know. The Resort continues to maintain exclusive control over the AAFPO Member database. We have been able to confirm that the data supplied thus far is neither complete nor accurate. Indeed, the AAFPO Board has evidence that the eligible voters on the Resort’s exclusive list of AAFPO Members “in good standing” presented to the Election Committee is materially inaccurate.
Moreover, because the “Member in Good Standing” list does not identify each property owned by the Members, we cannot determine whether Members who own multiple properties are given the appropriate number of votes—namely, one vote for each property owned. We also cannot determine whether joint owners of property are listed separately even though they jointly have only one vote between them. The “Member in Good Standing” list provided by the Resort also contains the names of non-AAFPO members.
Further, every Condominium Association was listed by the Resort as an owner, even though Condominium Associations generally do not own Units. The Resort has claimed that Associations are listed because they may have foreclosed on properties for past due assessments and taken title that way. However, we have checked the membership lists of several of these Associations and confirmed that the Resort’s explanation is not accurate.
9. Why did the AAFPO Board not notify the AAFPO membership prior to filing its lawsuit against the Resort?
At the time the AAFPO Board filed its lawsuit in October 2020, it was not in possession of AAFPO Members’ email addresses. That information was withheld from AAFPO by the Resort. A so-called Member list was given to AAFPO in December, 2020, but that list was incomplete and inaccurate. Without a complete and accurate list of Members and their email addresses, it was not possible to notify AAFPO Members in advance of the lawsuit. In fact, this lack of Member data is one reason why AAFPO filed the lawsuit in the first place.
10. Where does the lawsuit now stand and when will it be resolved?
The lawsuit filed by AAFPO in October 2020 has been scheduled for trial on August 29, 2022.
In the meantime, because we know we’ve been given a Member list with bad information by the Resort, AAFPO sought a preliminary injunction for access to AAFPO’s Member database which resulted in the most recent Court order. AAFPO has requested a hearing to clarify the Court’s order because we are hoping to get verifiable Member information sooner than October. If we get the information in October, we will have to notify Members 30 to 45 days prior to a Board of Directors meeting for the purpose of accepting nominations. In that case, the election would not be held until late November or December.
11. How much money does the Resort receive annually from AAFPO members, and who oversees the accuracy of those funds and how they are spent by the Resort?
For the last fiscal year (May 1, 2020 – April 30, 2021), the Resort collected $7,634,353 from AAFPO members. For this fiscal year, the Resort is well on its way to collecting approximately $7M. You should be asking: “What is the Resort doing with all that money in terms of providing Amenities usage, and why do I have to pay additional out-of-pocket fees to use the Resort Amenities stipulated in the governing documents?”
Click on the links below to view the Dues Collections reports supplied by the Resort for last fiscal year and YTD for the current fiscal year. You also can view these reports on www.AAFPO.org.
We want to know what the Resort is doing with our dues and why it won’t provide a detailed accounting, including comprehensive data detailing Members who are current with their dues and Members who are delinquent.
12. At present, who determines the annual assessment amount that the Resort collects and spends?
At present, the Resort is determining the amount of the annual assessment without input from AAFPO. However, under the By-Laws, the AAFPO Board is assigned a duty to review and approve the budget under the governing documents. According to the By-Laws, AAFPO’s budget review and approval process is supposed to be based on two factors: (1) the pro rata share of the Members’ versus the general public’s use of the Amenities (broken down by amenity), compared to the income generated by each; and (2) the estimated operating expenses (by amenity), using the consumer price index as the basis for raising dues if necessary. The Resort contests AAFPO’s budget review authority and that is one of the questions before the Court in the current lawsuit.
13. If the AAFPO Board loses the legal case it has filed, what will be the immediate and long-term consequences for AAFPO Members?
AAFPO has already received favorable decisions from the Court, however, the case itself is set for trial on August 29, 2022. There are multiple issues to be decided by the Court.
If AAFPO is denied access to its own Member database and/or if the lawsuit is dropped by a newly-elected Board, neither the current AAFPO Board nor any subsequent Board will be able to fulfill basic statutory duties and oversight responsibilities required by the governing documents and state law.
The Resort will continue to be able to choose what AAFPO rights it will ignore and it will have a blank check to spend Members’ dues without even the most basic oversight or supervision.