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Seller Disclosure Disputes

A seller disclosure dispute is a claim made by the buyer regarding alleged defects in the home that were not disclosed to the buyer prior to the sale. The most common dispute relates to water infiltration in a basement, but it can include anything from termites to plumbing issues. The courts have generally imposed high requirements on plaintiffs bringing these claims, and for these reasons, it is generally advisable to use an attorney who is knowledgeable and experienced on these types of claims.

What Must a Buyer Prove in Order To Win a Seller Disclosure Dispute

In order for a court to require a seller to pay for damages in a seller disclosure dispute, the buyer must prove four things — (1) that there is a defect, (2) that the defect was not disclosed, (3) that the seller knew about the defect, and (4) that the defect was not something that should have been discovered during a reasonable inspection.

The first two components of these claims are easy to prove. Whether or not there is a defect is a objective fact and can be established through testimony by a contractor, photos or videos. Similarly, whether or not it was disclosed can be determined by looking at the completed seller disclosure form. As such, it is the last two elements that lead to debate and disagreement.

The Seller’s Knowledge

In order to prevail, a buyer must prove the seller knew about the defect. Generally, the courts do not find it to be enough that the seller must have known (e.g., the water infilitration happened the first day after moving in) and there must be some concrete evidence of the seller’s knowledge.

This is usually accomplished one of two ways. The first — and best — is by evidence the seller had previously had work done on the same issue. This is usually discovered by accident either when the buyer happens to call the same contractor or it is mentioned by a neighbor. The second way is providing evidence that the seller covered the issue up. This could include fresh paint over a water leak, boxes that were strategically placed during the inspections, or other signs that the defect was concealed with the intent it not be discovered.

What is a “Reasonable Inspection?”

The final requirement is that the defect not be something that could or should have been discovered during a reasonable inspection. This does not mean that it not have been possible to be discovered, but it does mean that a buyer might not have a claim even if something was missed by an inspector. If the inspector missed something that most other inspectors would have found, the courts will generally not hold the seller responsible. Moreover, if inspections of the property were not conducted, the seller will never be responsible as the courts put the burden on the buyer to inspect a property prior to purchase.

What is the Process for Proceeding with a Seller Disclosure Dispute?

As we have seen many of these claims, we have developed a process that helps to get to the merits of the case to determine the likelihood of success quickly and before too much money is invested on the dispute. This process also helps to maximize the chances of a quick settlement as the facts are “on the table” very early on in the claim.

Our review process is outlined below. Once you engage us to assist with your dispute, you will receive access to an iPhone or Android app and webpage that will help you to track the status of your document review through the process. To learn more about our Case Status product, please go to our Case Status page.

Pre-Litigation Process (Buyer)

Introductory Phone Call

This is a short initial call to briefly discuss your situation and the process for moving forward with our firm.  Although we will discuss the basic merits of your case verbally, this conversation will not involve the review of any documents or other information related to your case.  Therefore, it is still possible that we made advise later in the process that your claim would be difficult or that we do not wish to proceed further with your claim.

Intake Form

At this point, we will request that you complete our Seller Disclosure Intake Form.  This form will ask you questions that help us to evaluate the merits of your case and will provide you with an opportunity to upload documents that are relevant to the matter.  With this in mind, we request that you have all of the documents available prior to completing our intake form:

– The contract (including addenda and amendments)
– The seller disclosure form
– Any estimates you obtained for the work
– Any photos or videos of the damage

Inspection of the Property

If this matter proceeds to trial, we will need experts to establish your claims.  Therefore, we have found that it is beneficial to bring in an expert early on so we can fully evaluate your claim prior to you investing money on litigation.  
At this stage in the process, we will send an independent inspector who has experience testifying to your home to inspect the damage.  This inspection is included in your pre-litigation package, and therefore, there will be no additional charge to you.  Moreover, we pay a set rate to this inspector – regardless of what he finds – so that he can make an independent judgment.  We may provide the inspector with photos or videos in advance, in our discretion, as we want to be sure to obtain as objective of an opinion as possible.
Please be advised that it may take several weeks to get the inspector out to the property and the report back from the inspector based on his schedule.

Attorney Evaluation

Once we have reviewed your documents, photos, and videos, we will make a determination of the merits of your case.  We will then discuss with you are recommendation on moving forward.  If we mutually agree not to proceed, you will receive a refund of $1,000 of the total costs paid for the pre-litigation package.  If we proceed, the entire fees will be earned upon the completion of the next stage.

Draft Demand Letter

If we have made the mutual decision to proceed with your case, the next step in the process is to draft a demand letter to the seller asking them to pay you for the undisclosed defects.  This letter will provide a deadline (usually ten days) for the seller to respond.  Moreover, it will also provide a request that the seller participate in mediation as required under most area real estate contracts.  Mediation is the process by which a third party – the mediator — attempts to get the two sides to agree to a resolution that avoids going to court.
Please be advised that we generally provide five days after the response deadline to a demand letter before taking any action.  This is because a response may be sent via mail on the deadline date that is not received until a few days latter.  If the deadline passes and there is no response, we will reach out to you to discuss if you desire to proceed with litigation.

Negotiations

It is unfortunately rare for someone to respond to a demand letter saying they will pay what you ask for.  The more common response is either to ignore the letter or come back with a counter-offer.  During this stage in the process, we will negotiate with the other side to try and find a resolution that works for you.  You will be notified of each and every offer received from the other side and you will have complete control over whether to accept or reject the offer, or to submit a counteroffer.

Please note that this stage in the process does not include participation in mediation as this involves additional costs for both legal fees and mediation.  To learn more about how we charge for mediation, please visit http://rickdavislegal.com/mediation/

Moreover, this stage may take many weeks depending on how quickly the other side responds to our communications.

Pre-Litigation Process (Seller)

Introductory Phone Call

This is a short initial call to briefly discuss your situation and the process for moving forward with our firm.  Although we will discuss the basic merits of your case verbally, this conversation will not involve the review of any documents or other information related to your case.  Therefore, it is still possible that we made advise later in the process that your claim would be difficult or that we do not wish to proceed further with your claim.

Intake Form

At this point, we will request that you complete our Seller Disclosure Intake Form.  This form will ask you questions that help us to evaluate the merits of the claim and will provide you with an opportunity to upload documents that are relevant to the matter.  With this in mind, we request that you have all of the documents available prior to completing our intake form:
– The contract (including addenda and amendments)- The seller disclosure form- Any photos or videos you may have showing the area of the alleged damage- Any communications between you and the buyer- Any receipts or other documents you have related to previous work you have had done related to the defects claimed by the buyer.

Inspection of the Property

At this point in the process, we will reach out to the buyer to request ability to send a third party inspector to look at the alleged damage.  If we proceed to trial, we will need an expert to testify about the condition of the property, and we have found it beneficial to do this very early on in the process so you can make an informed decision about how to respond to the demand from the buyer.  Moreover, if the buyer is reluctant to allow us to look at the damage, this is a sign the case may not be as strong as they are claiming.

If the buyer agrees, we will send an independent inspector who has experience testifying in these type matters to the home to inspect the damage.  This inspection is included in your pre-litigation package, and therefore, there will be no additional charge to you.  Moreover, we pay a set rate to this inspector – regardless of what he finds – so that he can make an independent judgment. 

Please be advised it may take several weeks to get the inspection done and the report back from the inspector depending on his schedule. 

Attorney Evaluation

Once we have reviewed all of the information you have submitted and (if applicable) the inspector’s report.  We will then discuss with you our recommendation on moving forward.  You will have complete control on what (if anything) we offer to resolve this matter and can make this decision based on our guidance after reviewing all of the relevant information.

Draft Response to Demand Letter

Once we have mutually decided on the best response to the demand letter, we will draft a response to be sent to the buyer.  This response may include a counteroffer or may simply reject any liability for the alleged defect.

Please be advised that we generally provide five days after the response deadline in a letter before taking any action.  This is because a response may be sent via mail on the deadline date that is not received until a few days latter.  If the deadline passes and there is no response, we will reach out to you to discuss the next steps.

Negotiations

During this stage in the process, we will negotiate with the other side to try and find a resolution that works for you.  You will be notified of each and every offer received from the other side and you will have complete control over whether to accept or reject the offer, or to submit a counteroffer.

Please note that this stage in the process does not include participation in mediation as this involves additional costs for both legal fees and mediation.  To learn more about how we charge for mediation, please visit http://rickdavislegal.com/mediation/
Moreover, this stage may take many weeks depending on how quickly the other side responds to our communications.

What is Mediation in a Seller Disclosure Dispute?

Mediation in a Seller Disclosure Case is an informal process where all the parties are placed into rooms in the same building and a third party (the mediator) goes from room to room with settlement offers until a resolution can be reached or one of the parties ends the mediation.  This process is very effective at resolving disputes without the uncertainty and costs of going to trial. The standard area forms require mediation prior to filing litigation and courts will often require it (possibly, again) prior to trial.

You can learn more about mediation in a seller disclosure dispute by going to our blog post on the topic.

What Happens if We Go to Court?

Court can be a lengthy and expensive process. Therefore, we attempt only resorting to litigation as a last resort. A basic outline of the process is below. As with pre-litigation matters, you will have access to our case status iPhone, Android, and web app to track the status of the matter as it processes through litigation.

Litigation (Buyer’s Perspective)

Preparation for Lawsuit

We are currently investigating the case and the defendant, and we are preparing your file for litigation. Additionally, we are working on drafting the Complaint. We want to make sure we are fully prepared to move forward with litigation, and we will let you know when the Complaint is filed. If we did not already do so as part of the pre-litigation process, we will have an inspector come to look at the damage to your home during this stage. Depending on what it takes to prepare for the suit, this stage could take several weeks as we want to make sure we have put in in the best position possible prior to filing.

Complaint Filed

We have sent the Complaint in for filing. Upon the Complaint being filed, we have to serve the defendant and/or the insurance company.  This can be a quick process, or it may take some time if we cannot locate the defendant. As soon as the defendant is served, the defendant or his/her attorney have 30 days to file an Answer with the Court. Sometimes we allow an additional 30 days to file an Answer. This is very common in litigation, and we recommend trying to work in good faith with opposing counsel from the onset of the case. Upon the Answer being filed, we will be moving to the discovery stage. In general, Stage 2 can take between 45 days to 4 months depending on the ability to locate the defendant.

Written Discovery

The discovery stage of civil litigation involves fact gathering. Both sides involved in the case are able to formally exchange information about the upcoming trial during discovery. This information includes a list of evidence and witnesses that will be presented during the trial. The discovery stage of a case helps prevent surprises during the trial and allows both sides to prepare. We will need some information from you during this stage, and we will be in touch to obtain this information. The discovery stage can take 4 to 12 months depending on the complexity of the case.

Depositions

During the discovery process, both sides are permitted to conduct depositions. A deposition is an in-person interview under oath, and the person deposed is going to be asked questions about the facts and allegations set forth in the case. Depositions have two purposes: (1) to find out what the party/witness knows and (2) to preserve that party’s/witness’ testimony. The intent is to allow the parties to learn all of the facts before the trial, so that no one is surprised once that party/witness is on the stand. By the time a trial begins, the parties should know who all of the witnesses will be and what they will say during testimony. Depositions are an opportunity for all sides to learn where the weak spots are in their respective cases, then prepare for ways to avoid or rebut them at trial. We will notify you if the defendant’s attorney wants to depose you, and we will prepare you for your deposition. We will also discuss the depositions we plan to take in this case, and we would like for you to be present for those depositions. The deposition stage generally falls towards the end of the discovery stage. Again, the discovery stage can take 4 to 12 months depending on the complexity of the case.

Mediation

Mediation is a method of Alternative Dispute Resolution (ADR). Mediation is essentially a negotiation facilitated by a neutral third party. Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision over the matter, the parties and their mediator ordinarily control the mediation process — deciding when and where the mediation takes place, who will be present, and how the mediator will interact with the parties. The mediation process is generally considered more prompt, inexpensive, and procedurally simple than formal litigation. It allows the parties to focus on the underlying circumstances that contributed to the dispute, rather than on narrow legal issues. The mediation process does not focus on truth or fault. Questions of which party is right or wrong are generally less important than the issue of how the problem can be resolved. We are hopeful we will be able to resolve the case during this stage, but if not, we will prepare for trial. Considering there are several people and schedules involved, it takes time to coordinate a mediation date. We will let you know of the time/date/location of mediation when it is set.

Preparation for Trial/Trial

If we were unable to resolve your case in mediation, we plan to move forward and plan for trial. Preparing for trial takes many hours, and we will let you know of anything we need from you during this time period. We are at the mercy of the Court in terms of a trial date, and we will let you know as soon as we receive a trial date. From there, we will schedule a time to meet and prepare you for trial. Although it depends on the court and its schedule, a trial is generally 12-18 months after the case is filed. Upon settling your case or trying it to to verdict, it will take a few weeks to get the check if you are awarded money. Upon receipt of the check we will contact you to come in to sign the appropriate paperwork and close your case.

Litigation (Seller’s Perspective)

Evaluation of Case

During this stage, we will make an initial evaluation of the case and will discuss with you the options for proceeding.  This will include a discussion about what parts of the plaintiff’s claim are true and what parts are incorrect or misstated.  We may also discuss the possibility of filing a counterclaim.  This stage must happen fairly quickly as we generally have 21 or 30 days from when you are served the petition to file an answer (although this can often be extended).

Answer Filed

At this point, we have filed the answer and any counterclaims, as applicable.  As is appropriate, we will continue to investigate the merits of the Plaintiff’s claims and may contact witnesses or begin seeking expert witnesses to testify on your behalf.

Written Discovery

The discovery stage of civil litigation involves fact gathering. Both sides involved in the case are able to formally exchange information about the upcoming trial during discovery. This information includes a list of evidence and witnesses that will be presented during the trial. The discovery stage of a case helps prevent surprises during the trial and allows both sides to prepare. We will need some information from you during this stage, and we will be in touch to obtain this information. The discovery stage can take 4 to 12 months depending on the complexity of the case.

Depositions

During the discovery process, both sides are permitted to conduct depositions. A deposition is an in-person interview under oath, and the person deposed is going to be asked questions about the facts and allegations set forth in the case. Depositions have two purposes: (1) to find out what the party/witness knows and (2) to preserve that party’s/witness’ testimony. The intent is to allow the parties to learn all of the facts before the trial, so that no one is surprised once that party/witness is on the stand. By the time a trial begins, the parties should know who all of the witnesses will be and what they will say during testimony. Depositions are an opportunity for all sides to learn where the weak spots are in their respective cases, then prepare for ways to avoid or rebut them at trial. We will notify you if the defendant’s attorney wants to depose you, and we will prepare you for your deposition. We will also discuss the depositions we plan to take in this case, and we would like for you to be present for those depositions. The deposition stage generally falls towards the end of the discovery stage. Again, the discovery stage can take 4 to 12 months depending on the complexity of the case.

Mediation

Mediation is a method of Alternative Dispute Resolution (ADR). Mediation is essentially a negotiation facilitated by a neutral third party. Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision over the matter, the parties and their mediator ordinarily control the mediation process — deciding when and where the mediation takes place, who will be present, and how the mediator will interact with the parties. The mediation process is generally considered more prompt, inexpensive, and procedurally simple than formal litigation. It allows the parties to focus on the underlying circumstances that contributed to the dispute, rather than on narrow legal issues. The mediation process does not focus on truth or fault. Questions of which party is right or wrong are generally less important than the issue of how the problem can be resolved. We are hopeful we will be able to resolve the case during this stage, but if not, we will prepare for trial. Considering there are several people and schedules involved, it takes time to coordinate a mediation date. We will let you know of the time/date/location of mediation when it is set.

Preparation for Trial/Trial

If we were unable to resolve your case in mediation, we plan to move forward and plan for trial. Preparing for trial takes many hours, and we will let you know of anything we need from you during this time period. We are at the mercy of the Court in terms of a trial date, and we will let you know as soon as we receive a trial date. From there, we will schedule a time to meet and prepare you for trial. Although it depends on the court and its schedule, a trial is generally 12-18 months after the case is filed. Upon settling your case or trying it to to verdict, it will take a few weeks to get the check if you are awarded money on any counterclaims. Upon receipt of the check we will contact you to come in to sign the appropriate paperwork and close your case.

How Much Does it All Cost?

Litigation can be expensive. In addition to the costs of an attorney, there are costs for experts, court costs, costs for transcripts and court reporters, mediation costs, service costs, etc. With that being said, it is the goal of our firm to provide fair, predictable, and transparent pricing to each of our clients. You can view the set monthly rate for this type of litigation and/or sign up for our services by clicking on this link.

With that in mind, we charge our clients a set rate per month for litigation and pre-litigation matters, which includes the attorney review of all of your documents, photos, and videos; the cost of drafting and preparing the demand letter or the response to the demand letter, and any negotiation regarding a possible settlement, the drafting and filing of legal pleadings, third party costs, such as mediator fees, filing fees, and fees for inspections, and appearance in court, arbitration or mediation on your behalf.

The advantage to pricing by the month is that it provides you predictable litigation costs instead of the highs and lows of more traditional billing where one month may only be a few hundred and the next may be thousands of dollars. In other words, this pricing is most similar to when the electric company charges a set rate per month instead of charging for usage. This means that some months, the legal fees and costs incurred on your behalf will exceed the set monthly rate. Other months the total may be less. You will not receive a refund or discount in months were less work takes place as the difference accounts for the months were the works exceeds the price paid. Moreover, there is often work taking place that is not visible or noticeable and even when there is no update on the case, that doesn’t mean we haven’t done work such as reviewing the file to formulate strategies, communicating with the court or third parties, or talking with the opposing attorney. Because we are charging a flat monthly rate, we do not keep detailed time logs each month and will not be sending you an itemized invoice.

It is our sincere commitment to you that we will work hard to resolve your case as quickly as possible. That has always been a central tenant of Rick’s legal philosophy and will continue to be so in the future. We can’t always control the timelines of the courts, but we will always we looking for possible solutions from beginning to end of your case.

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