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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33911
Experience:  Began practicing law in 1992
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the form in question is disclosure of lead based paint form.

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the form in question is disclosure of lead based paint form. it was signed by the realtor one day, 10 days later by me and then 5 days later by the ex wife. the realtor is a co-defendant as its questioned whether he actually informed us of our responsibilities to disclose. but it is clear that it wasn't. separate places at different times. no one read this form, the realtor, the lawyers the sellers and the buyer and yet the buyer is saying she relied on it. can this form hold up in court?

JD 1992 :

Hold up as far as what?

Customer:

credit card alert, just cleared it

Customer:

the company saw this website as unusual purchase so they called and confirmed yes it is me etc.

JD 1992 :

I'm sorry, you asked if the form would "hold up in court". Hold up as far as what?

Customer:

lol! i guess hold up in court albeit a colloquialism is not legal language since the 90% of the summons is based on this form that has our signatures but no disclosure indication, i.e. the form is blank, i didn't indicate on the form one way or another. the buyer says they relied on this form to believe there was no lead paint. yet the only marks are where the realtor placed his next to what he felt were the pertinent answers were to go. the buyer never signed it. incomplete unsigned documents forms are they i dont the word are they legal in the sense that they can be used against someone even if that someone didnt indicate one way or another.

Customer:

correction "i dont know the word"

JD 1992 :

I'm sorry, the form is a blank disclosure of lead paint? It doesn't actually have any info on it?

Customer:

yes, i signed it the reaalor initialed that he informed us etc. but no checks in the boxes and the buyer did not sign it . this form is now marked evidence b in the complaint

Customer:

i can send a picture of it to u?

JD 1992 :

Was it changed at all after you signed it or is it still blank as it is attached to the complaint?

Customer:

not changed

JD 1992 :

Okay, I've got the form down now. I am assuming you are the sellers and the buyer is suing you. What is the buyer saying you did wrong?

Customer:

that we misrepresnted that there was no lead paint hazards nor any reports of lead based paint. and in the complaint they base our misrepresntation on this form...that is..blank. there happened to be a report a few years back of lead paint that the health dept informed them of.

Customer:

16 of the 32 paragraphs in the complaint reference this form.

JD 1992 :

I understand now.

JD 1992 :

I think it helps you way more than it hurts you.

JD 1992 :

If she is saying that is the form she relied on and it is blank then she can't win by saying it was the basis of her damages.

Customer:

i tried telling my ex wife about this and she thinks it is filled out, why am i the only one who has noticed this???

JD 1992 :

So those paragraphs of the complaint should be struck at some point.

Customer:

what would be some legal language in relation to a faulty form like this and what would be the name of the motion to strike...motion to strike?

JD 1992 :

You would probably file a Motion for Summary Judgment to clear those sections of the petition.

JD 1992 :

That would be the best mechanism.

Customer:

any case law that u know of that might help since u do contract law? or how would i go about finding case law?

JD 1992 :

I haven't ever done any research on a case like this. It is really a question of fact since the court is going to have to make a determination that the instrument actually contains no evidence as a matter of law. There is a good book that teaches you how to do legal research at this link. It's pretty inexpensive and is really good in teaching the fundamentals of legal research and it also give you a link to a specific section of Google that has case law on it.

JD 1992 :

If you want to research the issue start with researching what burden of proofs that are present in a summary judgment and what you have to prove to win and then research the issue of a document being relied on and that contains no evidence.

Customer:

if someone had this info and was a defendant in a civil suit and if the trial is next year and if he hasnt been deposed yet, would it be prudent to hold back and wait with this info or move a motion of summary judgement to get the court to make a determination as soon as possible

JD 1992 :

Has anyone done discovery yet?

Customer:

in process right now and the discovery revealed the same form as the one evidenced in the original complaint

Customer:

depositions started 2 weeks ago, i got mine pushd back a month and a half

JD 1992 :

You probably want to do a set of requests for admission to establish that for those paragraphs they are relying solely on that document and what it does, or does not, contain. That should be enough along with the document to get a summary judgment on those issues.

Customer:

ok thanks...any other parting advice before we leave and say good night? , besides getting a lawyer, 20000-30000 to rich for me, plus my brother will represent me when he leaves his clerkship,

Customer:

you have been very helpful thanks

JD 1992 :

No, if you do the discovery and the legal research and then prepare your motion correctly that will definitely narrow the case.

JD 1992 :

If you are representing yourself read the articles and entries on that website I gave you the link on above.

Customer:

ok ive signed up for this site can i reach u for more questions later?

JD 1992 :

Sure. Any time you want me on a new question just start it with FOR JD 1992 and I'll pick up as soon as I see it. I am online for at least a few minutes almost every day.

JD 1992 :

Sometimes I'm online all day.

Customer:

thx a lot

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