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Dear Judged
Real Estate Professional MalpracticeHello Your Honor: A scenario is presented followed by my list of possible
counts that could be included in a Complaint. No matter how arcane or
unusual, can you add any counts that might be reasonably considered in a
first complaint. The more I come up with, the smarter my fellow classmates
will think I am (laugh). Anyway here goes:
If XYZ Realty had
informed Buyer that the Seller DID NOT ACCEPT Buyer’s satisfactory
inspection clause on a residential purchase agreement, then Buyer would
never have scheduled or proceeded with inspections and would have
immediately rescinded the contract offer and required return of the earnest
deposit. Moreover, the buyer would never have filed a lis pendens and
lawsuit to defend the contractual right to purchase the house (as a primary
dwelling). I reasoned, it is the duty of the real estate broker and buyer
agent to disclose to the principal all essential and material facts that he
or she has knowledge of that may affect the principal’s rights or
interests. The agent and broker had the duty of care.
The Buyer would also never have filed an appeal after a
Trier of Fact ruled that no contract existed because the Seller never
accepted Buyer’s satisfactory inspection clause. Buyer learned in the
midst of appeal as a result of documents finally surrendered by the
non-cooperative Broker under a third subpoena, that the Broker and real
estate agents withheld the critical fact that Seller did inform them he did
not accept Buyer’s satisfactory inspection clause. After examining
parole evidence that confirms Seller never accepted Buyer satisfactory
inspection clause, to mitigate losses, Buyer immediately halts litigation,
quiets the lis pendens and reaches a settlement with Seller.
The Broker and Real Estate Agents deliberately
and with full knowledge of the harm being caused to Buyer remain silent
throughout all litigation with respect to their critical omission. Even
assuming the conduct of XYZ Realty began as an act of unintentional
negligence, its subsequent conduct thereafter, ensues under the color of
fraud and conspiracy with malice and oppression, the results causing
egregious harm, emotional stress, and oppression to the Buyer.
QUESTION: List all possible COUNTS. Assume
Broker, Seller’s Agent and Buyer’s Agent work for the same firm
at the same brokerage office. Buyer’s Agent executes a transactional
broker agreement with the Buyer. Seller’s Agent lists property and
represents Seller. Buyer and Seller pay brokerage firm the identical
commission amount. Place of transaction: Miami, Florida
I identify the following possible counts:
Professional Negligence
Breach of Fiduciary Duty/Relationship
Fraudulent Act
Fraud
Constructive Fraud
Fraud by Silence
Suppression of
facts
Civil Conspiracy
Intentional Misrepresentation
Malice
Breach of Duty to Deal in
Good Faith
Breach of Expressed Contractual
Duty to Do No Harm
Breach of Contract
Severe Emotional Distress
Oppression
P.S. This is a great mind bender...we've got pizza and drinks
everywhere!
AllanKirk
posted 2007-07-24 02:31:37
Dear AllanKirk,
Mind-benders do not exist for the Judge, for the Judge’s already got
a bent mind. The court is not bound to answer your questions, but does so
at its pleasure and your peril. To begin with, if you hadn’t placed
the question before this court but had instead asked our esteemed friend
Broker Bryant
(http://www.brokerbryant.com/2007/07/22/i-am-certainly-your-broker#more3091
) you would have immediately found some of your answers. In your folly,
you have asked this court to assume the case scenery, but the court does
not proceed upon assumptions and presumptions. More so, when the assumed
scenery advances to the realms of fantasy, leaving behind the merely
fictitious. The reason why no court in the country would have accepted the
case is because dual agency is prohibited in Florida and a transactional
broker does not have a fiduciary relationship with its customers (who are
not clients).
However, the reason why this court will not take
up the matter is because the lawsuit incoherently considers only the
superficial without considering the fundamental problems. This court
entertains a suit only when the issues strike at the roots of the matter.
In this case, that would have involved:
-Suing the parents of
the buyer for producing dumb children who are a liability to the society
and this court
-Suing the educational institutions where the
bungling buyer had received useless education
-Suing the
accreditation authorities and boards which gave recognition to the
worthless institutions where the buyer had received education
-Suing the incompetent government authorities which recognized the
accreditation boards that gave recognition to the institutions where the
aforementioned buyer had received education
-Suing the inept
government that set up such authorities which recognized the accreditation
boards that gave recognition to the institutions where the aforementioned
buyer had received education
-Suing the mindless electorate that
had voted the inept government into power and aided and abetted in setting
up such incompetent government authorities which recognized the worthless
accreditation boards that gave recognition to the institutions where the
aforementioned bungling buyer had received his/her hopeless education
No lawsuits against the seller or the broker would be entertained
for they have proven themselves to be smart enough to win accolades. In
any case, this court heartily supports the maxim of Caveat Emptor for all
and especially for those who have the cheek to pose questions to this
esteemed court.
As always the Judge has a solution to all your
problems. Cheers! Happy Posting…I guarantee you that your
classmates will think you're brilliant. I also guarantee that you will
score extra brownie points with your professor for bringing so many extra
parties into the litigation. (Trust me, they like that.)"
If
you weren’t looking for a serious answer, just go rent Fight Club and
watch it with your pizza and drinks. I bet you'll get some more ideas
of rules that were broken in this case (Just don’t get too many ideas
from it, OK?)"
Dear Judged > Archive
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Dear Your Honor,
Dear Judge,
Do you ever experience any physical danger in the courtroom? You do deal with all those criminals, right?
Sincerly,
Concerned Bailiff's Mommy
+ more Judged Dear
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Sincerly,
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