You cannot sue your HOA's lawyers for the HOA's alleged discrimination
You cannot sue your HOA's lawyers for the HOA's alleged discrimination
2026-09-15 · New Mexico · Courts · Pending — not yet law
Reported from a live case: a New Mexico federal magistrate judge has recommended dismissing a homeowner's claims against his association's law firm with prejudice, while leaving the association's own accessibility exposure in the case. The recommendation is not a final judgment and remains subject to objections.1
The posture
Pallottino v. Los Suenos de Albuquerque Homeowners Association, No. 1:25-cv-644, United States District Court for the District of New Mexico. Proposed Findings and Recommended Disposition filed August 28, 2026.
This is a magistrate judge's report and recommendation under 28 U.S.C. § 636(b)(1)(B). It becomes an order only if and when the district judge adopts it, and it is not precedent in any event.
The plaintiff, a self-represented association member who alleges an orthopedic impairment from degenerative spinal disease and uses a cane and a power wheelchair, sued his association, three individuals associated with it, its management company and three of its people, and separately the law firm and attorneys who had defended the association in earlier state-court litigation. The dispute arises from his complaints about being unable to access a community park.
What was recommended
Granting the law firm defendants' motion and dismissing all claims against them with prejudice. Denying the association defendants' motion to join that motion, because they had not specified which arguments applied to them. And granting in part and denying in part the association defendants' motion to dismiss for insufficient service of process — service was quashed rather than the case dismissed, leaving the association, its board members and the management company in the case with time to be re-served.
The two holdings worth reporting
A conspiracy claim under 42 U.S.C. § 1985(3) does not reach disability-based animus in this circuit. Beyond finding the conspiracy allegations implausible, the court held the claim fails as a matter of law on binding Tenth Circuit precedent from 1983, which held “that a class of 'handicapped persons' was not in the contemplation of Congress in 1871, and was not included as a class in what is now § 1985(3).” The court acknowledged the age of that authority and that there is a circuit split on the question.
An association's defence lawyers are not liable under the Fair Housing Act for the association's alleged discrimination. Working through the regulation on liability for discriminatory housing practices and the statutory interference provision, the court found none of the routes fit:
“The HOA Defendants are not employees or agents of the Law Firm Defendants. In fact, under well-established law, the opposite is true, that is, as their attorneys, the Law Firm Defendants were the agents of the HOA Defendants.”
“If the Law Firm Defendants' conduct were sufficient to allege a plausible claim of retaliation against them, then a similar claim could be made against any attorney simply by virtue of the attorney's defense of a client accused of violating the Fair Housing Act.”
And on the boundary of the interference provision generally: “The alleged conduct may have affected Plaintiff's ability to exercise of his rights under the Fair Housing Act and/or ADA, but affecting the rights of a protected class does not alone satisfy the requirements of the statute.”
What was not decided
This is the part that matters most, and it is easy to misread. The Fair Housing Act and ADA claims against the association itself, its board members and the management company were not dismissed on the merits. The law firm is out. The association's own exposure over community-park accessibility remains in the case.
Nothing in the recommendation decides whether the park was accessible or whether the association discriminated. Those questions are open, and this account does not predict how they come out.
What it means for a board
Accessibility exposure sits with the association, not with its counsel. Common-area accessibility complaints are the association's problem to solve, and retaining a law firm does not move the exposure. This case reached federal court after a disability advocacy organisation became involved, which is a common trajectory.
Service of process is worth getting right from the other side too. The association's service objection succeeded only to the extent of quashing service. It bought time and cost money; it did not end anything.
The federal accessibility framework does not depend on a state regulator. New Mexico has no agency overseeing associations, but the Fair Housing Act reaches an association directly through HUD and through a private right of action with a two-year limitations period, and the New Mexico Human Rights Act at Section 28-1-7 operates independently through the state's Human Rights Bureau.
A note on the federal record
This is effectively the entire published federal trial-court record on New Mexico associations in the period. Searches of the District of New Mexico's published decisions for restrictive covenants, CC&Rs, declarations, planned communities and assessment liens returned nothing; a search for Fair Housing Act cases involving associations returned only this one; and a search for Fair Debt Collection Practices Act decisions returned bank cases, none involving an association's assessment collection.
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