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Law Pro, Criminal Defense Lawyer
Category: Criminal Law
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Experience:  20 years trial experience in defense of criminal cases
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A Notice of Default claiming negligent misrepresentation, fraudulent

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A Notice of Default claiming negligent misrepresentation, fraudulent misrepresentation, incompetence and unconscionable conduct has been filed by buyer against seller/bank stating facts of Violation of TX Statute 5.085 (Fee Simple Title required) as follows:

Buyer in good faith and relying upon MLS Listing, county tax records, and visual inspection of property submitted a 1 to 4 Residential Contract for house and 14 acres which the seller executed.

Two weeks after executing contract, the seller notified me that they only own 7 acres (one half of the property).

We informed Seller that without the additional seven acres, the property does not meet our needs and requested that seller reimburse my expenses and return EMD. Seller refused and instead insisted that buyer submit an amendment and seller will sign. Having their promise to sign in writing, I submitted an amendment to the contract correcting lots and acreage and waiving my right to pursue damages. When Seller refused to sign amendment we went to closing hoping to sort it out then.

Seller did not show up at closing. Seller continued to offer misleading inducement that I should Terminate contract and have my Earnest Money Deposit returned to me with no further compensation. At the same time, seller threatened to terminate the Contract (but has not) and re-listed the property (again incorrectly stating acreage).

And that is when buyer filed Notice of Default, which is now public record. Rebuttal period expires March 1, 2012.

Upon receipt of buyer's Notice of Default, the seller pulled the listing and re-entered negotiations with buyer for a new purchase price. New Purchase Price has been verbally agreed to. Now seller is demanding a waiver as well as a new contract (Seller also wants existing contract terminated).

Is a waiver of subrogation really necessary to close the deal?
If so, shouldn't there be additional compensation for signing a waiver?

Would waiver necessarily exclude all the aforementioned instances of civil liability (Breach of Contract, breach of promise, default in closing, fraudulent inducement, unrebutted affidavit, etc.)?
If you signed a release or, potentially a waiver, you could lose your right to pursue the civil actions mentioned against the seller.

Just to be sure - the seller is a bank?
Customer: replied 5 years ago.
Yes, seller is a large mortgage company who obtained property through non-judicial foreclosure.

My standard fee for waiving my rights to a bank is $100 million. What's yours?

And I will, of course, refuse any promise of non-disclosure for any amount of money. Wouldn't you?
You got me chuckling with that - thank you!

First, you can file suit for specific performance and a reduction of the purchase price because of the wrongly listed acreage.

Second, you could also include a claim for fraud and misrepresentation along with the previously mentioned pursuit of specific performance.

Lastly, I would file a criminal complaint with the DA's office about their fraud in the matter.

I would pursue them so vigorously that they would give you the property at some future time during the litigation to make you go away.
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Customer: replied 5 years ago.
This is not funny. I've got real legal trouble here.

No real estate attorney that I've talked with will agree to file suit against this party. That is why I am asking a criminal attorney.

The DA doesn't want to prosecute, but thinks the Sheriff will. Maybe the AG?

I am thinking I should ask for police protection for me and my family if and when I file criminal charges. So far, I'm just trying to play nice with these guys and continuing to negotiate with them. But they just keep coming after me with more demands. What should I do?
I understand - it isn't funny - but your statements were.

If the sheriff pursues - then the DA will have to prosecute the case. So those two go hand in hand.

The AG - that's possible because they have been fraudulent in their representations on this property - are they doing that in other properties too???

I would file a complaint with the AG - I would pursue any and all possible legal remedies available - including the filing of suit myself.

As to needing police protection - I haven't heard where they have threatened you in any of your recant of the facts and circumstance. However, if you filed for a restraining order - it would be specific to an individual and not a company.
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Customer: replied 5 years ago.
Today, seller signed my new contract for agreed price, but they included a 4-page waiver for me to sign. If I would have known they wanted a waiver, I would have negotiated differently. I don't have to waive my rights for free, do I?
Nope. I wouldn't either. I would make them pay for my signature on the waiver by getting a better deal.
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