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Maverick
Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 5767
Experience:  20 years professional experience
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I am suing the seller of my house for Breach of Sales

Customer Question

I am suing the seller of my house for Breach of Sales Contract, Material Non-Disclosure.
The seller through her attorney has Motioned for Summary Judgement.
As the Plaintiff, can I do the same in counter to his Motion? If so, what would I do?
And, can you guide me on how to prepare this response soto conform to Texas and appropriate case law?
Submitted: 23 days ago.
Category: Real Estate Law
Expert:  David Stewart replied 22 days ago.

Ron: you are free to file a counter motion for summary judgement. It is not going to be possible to give you a step by step on what to do as these are technical briefs and motions that are written based on the allegations and law impacting your case. Here is a manual prepared by a law firm in Texas that gives you much more detail on what we can provide on this site to you to look through. http://www.haynesboone.com/~/media/files/attorney%20publications/2006/summary_judgments_in_texas.ashx

A nondisclosure case can be a very significant claim and I would also suggest you consult with an attorney locally to see if they will take your case on a contingency fee. Your chances are not very good of winning the case if you don't have an attorney in particular responding to a MFSJ. I hope this helps you!. All the best, David

Customer: replied 20 days ago.
I spoke to 13 attorney's, NONE would take it. So I am on my own.
The reason they all cited was the fact that if either party appeals the case starts again in County Court. So whatever time they put forth they have to do it all over again. They all stated I (the attorney) am wasting my time. So, they would not take the matter.
When you say I have a low chance of winning. The motion that was put forth from the seller's attorney did not state any case law by which I would not have a factual case. I will paraphrase his Motion and please comment. (He attached evidence to support the sales contract, inspection report and disclosure notice)
1. Plaintiff files suit almost 1 year after owning the house and now states there are multiple items in need of repair.
2. I inspected the home 3 times and I was represented by my own realtor.
3. Before closing the seller's realtor mailed my realtor a disclosure and a pre-inspection report.
4. I bought the property "AS IS".
5. I inspected the home after I signed the sales contract.
6. I did not cancel the sales contract.
7. I lived in the house for nearly 1 year than filed suit.
8. I cannot maintain my suit as there are no material facts supporting it, no points of law or treatise.I responded with:
1. I was on an out of state assignment and I filed suit 2 months after I returned.
2. I viewed the house as I am not a home inspector.
3. I received the sellers disclosure, I never received the pre-inspection report.
In the Seller's Disclosure Section 7, "..did seller received an inspection report within the last 4 years..." Seller has check NO. Picture of standing water and erosion, seller has checked no drainage issue. Termites, seller has checked no termites. Picture of kitchen cabinets busted in 2 places, seller has checked nothing in need of repair. Picture of black mold, seller has checked no water damage. Inspection report dated 2 days before the sellers disclosure date and signed by the seller.
4. As we both know, AS IS, means AS IS DISCLOSED. The Disclosure Notice is Item A of Section 7, As Is item D of section 7.
5. Again I viewed the house twice, I did not inspect the house as I am not a licensed house inspector.
6. If I suspected nothing, why would I cancel the sales contract. The sellers disclosure stated everything was fine.
7. Again, I filed suit 2 months after I returned from my out of state assignment and discovered all the issues that had not been reported on the sellers disclosure.
8. I included see Koral Industries v. Security-Connecticut Life Ins., 802 S.W.2d 650, 651 (Tex.1990), , See Camden Mach. & Tool, 870 S.W.2d at 311; Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 55 (Tex.App.—Houston [1st Dist.] 1990), aff'd, 836 S.W.2d 160 (Tex.1992).
You are not allowed to state within your disclosure everything is fine if you have evidence or knowledge of an issue, or if an inspection report states there is an issue and you do not say so on your disclosure.
And ...reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Your thoughts...?????
Expert:  David Stewart replied 20 days ago.

Thank you for the additional information. Why didn't you have a professional inspector look at the home since you were buying "as is" before you purchased it? Seller disclosure statements are not warranties that there is nothing wrong with a property, they are statements that they are not aware of anything wrong with it. You are stating there are numerous things wrong with the property, but you will need to prove the seller knew these things existed and signed a false disclosure statement. Here, they sold you a property "as is" and said they are not aware of something wrong. I think you need to respond to the MFSJ or they will get a default judgement, but in the end you have several fact questions that will need to determined by a jury. In this particular instance however I do not believe you have a very good chance of winning at all. There is a lot of time between the your purchase and these issues arising and in addition you were apparently gone on assignment for an extended period of time. Proving all of these things were wrong with the property when it was being sold to you is going to be difficult and I also believe you are wasting your time. I am really sorry you are having a hard time and I will opt out in case another attorney wants to weigh in on your issue. Thanks, David

Expert:  David Stewart replied 20 days ago.

.

Customer: replied 19 days ago.
That is really odd you say this. So far I have found 4 treatise, previous law cases in which state the exact opposite. The issues were noticed within several months by my wife. She asked me about them. The Black Mold was noticed and had to be removed within 2 months from the day we moved in. Also, a house is never "As Is", even when an Inspection Report is done. According to 2 cases on Appeal, which upheld the trial court,,, "...an inspection report does not relieve the seller from omission or fraud..." By the time elapsed,,, you have never been a round contractors. Having my wife know what she should do and should not do with me gone and a strange guy in the house, don't think so. I was not going to have her handle that while I was gone. And a property is never "As Is". For if it were, you would not have a Seller's Disclosure. Section 7 of the Seller's Disclosure actually asks if an Inspection Report has been given to the Seller. And she checked no. I find it very strange you believe I have no chance at all of winning and I am wasting my time, for if that is indeed true, then there is no purpose of the Sellers Disclosure. And to know these items existed before she signed the sellers disclosure, her own inspection report is dated 2 days before her disclosure. Also, by common sense am I to believe the seller never opened her sink cabinet, never walked around her house, never heard rats in the attic yet a rat snap trap was there, and never opened her fence gate to reveal why it was about to fall over. So, if I am to rely on the fact she had her own Inspection Report, then she knew what went into the sellers disclosure was a lie. If I say there is no Inspection Report, then how could of she not known. Also, the seller was a realtor. She knows what values a house. And I did not have an inspection done because I believed the seller was telling me the truth. She is a realtor, and realtors know houses, so she should certainly know here own.
Expert:  David Stewart replied 19 days ago.

There are not any treatises that say the opposite of what I told you. Apparently you need the Judge to rule against you so I will let you take it up with him. You dont have a case. I am going to opt out and let another attorney debate with you.

Expert:  Maverick replied 18 days ago.

Welcome to Just Answer! My name is Maverick. Please give me a few minutes to review your inquiry. Thank you for your patience.

Expert:  Maverick replied 18 days ago.

Here is what I see as the applicable law in your case:

1. The Seller’s Disclosure seeks to implement the core disclosure requirement in Texas as articulated in Myre v. Meletio, 307 S.W.3d 839, 843-44 (Tex. App.—Dallas 2010, pet. denied): “In the context of a real estate transaction, a seller is under a duty to disclose material facts that would not be discoverable by the exercise of ordinary care and diligence by the purchaser, or that a reasonable investigation and inquiry would not uncover;

2. The inclusion of an “as is” clause in the contract does not relieve a seller of the obligation to disclose material facts (Ritchey v. Pinnell, 357 S.W.3d 410 (Tex.App.—Texarkana 2012, no pet.);

3. Coldwell Banker Whiteside Associates v. Ryan Equity Partners, 181 S.W.3d 879, 888 (Tex. App.—Dallas 2006, no pet.): “A misrepresentation may consist of the concealment or nondisclosure of a material fact when there is a duty to disclose. The duty to disclose arises when one party know that the other party is ignorant of the true facts and does not have an equal opportunity to discover the truth. A fact is material if it would likely affect the conduct of a reasonable person concerning the transaction in question.”

There are three levels to fighting a summary judgment motion. What this means is that even if the substantive law is not in your favor, you may still be able to win on procedural or evidentiary technicalities.

I have been licensed in TX for 21 years and have in-depth experience in handling litigation matters all the way up to the Texas Supreme Court and to the US Supreme Court. I am going to suggest that we do a one-hour telephone conference on this. The fee will be $200.00. Please see my offer on your screen after reading the following disclaimer:

Please Note:

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Expert:  Maverick replied 18 days ago.

Please contact JA customer service to set up the telephone conference and make a deposit for the fee.

Please contact customer service at 1.***-***-****

Customer: replied 18 days ago.
I would indeed love to take you up on the $200 offer. The problem is my funds are quite limited and I will more than likely be a member here until after trial, which is in 2 months. Also, if I mis-understand something when we speak, I have no way to follow up. I could here, but then we start rehashing everything over as I try to state what my mis-understanding is. Last, I did make one call here and asked about "...non-suit without prejudice..." The lawyer I spoke to said I refile the case with the same court. He was 100% wrong. When I wrote him back and told him what had happened he replied I mis-understood what he said, then opted out. So, if I do everything in message, though I will have to type more and ask more questions, I feel more comfortable doing that then speaking, getting something wrong and having to tpe again anyways. Thank you very much for the offer, that is more than fair and if I could really afford it, I would take it up.
The reason I have done all of this is because I simply cannot afford all the issues that have come up. Please understand, the 4 main issues I wish to collect under are not all the issues of the house. There are over 20 of them. I 100% believe the seller knew all of these and was dumping the house. I viewed the house twice and the seller never left the house. She was there to make sure I did not uncover anything. She knew. The items I am litigating are the most egregious material defects. The most costly ones.
I know I face a difficult task. I am going against an attorney that has been in practice for 20 years. This is an uphill battle and I know it. But I have no choice, now. I had always hoped I would be able to speak to the seller and come to a compromise, and that would be that. I have tried 3 times to find some kind of middle ground, she has said no to all my efforts. So now I am faced with winning or having substantial attorney fees go against me that I do not have the money to pay. I have to find a way to win or force a compromise.
I am preparing my argument for the Summary hearing and my opening statement for trial, and all my questions (I do hope I get to that point) Every time someone gives me case law I read the whole thing. I google words I do not understand. More case law I have the better. The "As Is" bothers me because not by law, but how a jury will hear this. Also the pre-inspection report. I never got this and no one has proof I did, but my realtor states he sent it. And that is damaging because when one sends something in email everyone always assumes you get it. Yet, the seller never states she has the inspection report in her disclosure, Section 7. So, any and all help is greatly appreciated. As ***** ***** stated, "... I have no case ..." I sincerely ***** ***** is wrong. I have follow up questions. If you wish I would like your comments on them, but I can start a new thread if you wish. Or I cn ask them in this thread?