Buy a New Home - Don't Sue and Shut Up!!

Originally Posted By: rbracklow
This post was automatically imported from our archived forum.



This is quite interesting!!


OUTRAGEOUS! Buy a New Home ? Don?t Sue and Shut Up

Homebuilders will stop at nothing ? Now Buyers must agree not to Speak

Beware of New Clause ? Homebuilder requires that homebuyers sign an Arbitration Agreement at closing causing them to give up their 1st and 7th constitutional rights. For the homebuyer it?s a decision between constitutional rights and the American Dream.



Buyers must agree not to: FILE ANY PROTEST, GRIEVANCE, OR COMPLAINT? INCLUDING THE BETTER BUSINESS BUREAU OR ANY MEDIA ENTITY, TELEVISION OR OTHERWISE? AGREES THAT NO SIGN OR BILLBOARD OR WRITING OR CHART OR DRAWING CONCERNING THE CONDITION OF THE HOME AND/OR PROPERTY SHALL BE ERECTED OR PLACED IN SUCH A WAY THAT IS VISIBLE TO PERSONS PASSING BY THE PROPERTY? and much more.

Also contained in the contract is a biased arbitration provision that specifies the use Construction Arbitration Services (CAS). If that isn?t enough, the final clause in the agreement could cost homeowners their home ? ?A SUM EQUAL TO THE PURCHASE PRICE, OF THE HOME,? if the owner appeals the arbitrators? decision to the appellate courts.



See related HOBB article: Public Citizens News Release September 01, 2004

CAS Arbitration Investigated ? Recently an investigative report by Public Citizen helped launch numerous state investigations ? The Public Citizens report points to Home Buyers Warranty (HBW) and their specified arbitrator (CAS) as having close ties, which could lead to a biased mandatory arbitration process that shields ?homebuilders from liability for construction defects.? Public Citizen call for investigation of HBW and CAS.



E. ARBITRATION REQUIRED AND TEXAS LAW TO APPLY

THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE, LAWS OF THE STATE OF TEXAS. ALL OBLIGATIONS OF THE BUYER AND THE SELLER ARE PERFORMABLE IN THE STATE Of TEXAS. THE BUYER AND SELLER AGREE THAT THE MAXIMUM AMOUNT OF LIABILITY FOR EITHER PARTY SHALL BE THE AMOUNT OF THE PURCHASE PRICE ENTERED AT SECTION; I.A. ABOVE, LESS THE ACTUAL APPRAISED VALUE OF THE PROPERTY. ANY CONTROVERSY OF ANY KIND WHATSOEVER, THAT ARISES OUT OF THIS AGREEMENT, ANY AMENDMENT THERETO, THE PURCHASE OR CONDITION OF THE PROPERTY, OR THE PURCHASE OR CONDITION OF THE HOME, SHALL BE RESOLVED BY BINDING ARBITRATION IN DALLAS COUNTY, TEXAS ACCORDING TO THE RULES AND REGULATIONS OF THE CONSTRUCTION ARBITRATION SERVICE, INC. THE BUYER EXPRESSLY AGREES THAT NO SUIT (OR ANY ADVERSE ACTION WHETHER IN AGENCY, MEDIA, OR INFORMAL) CAN BE FILED IF ARIBITRATION HAS NOT FIRST BEEN COMPLETED. IN ADDITION, THE BUYER AGREES THAT THE BUYER WILL NOT, UNTIL ARBITRATION IS COMPLETED, FILE ANY PROTEST, GRIEVANCE, OR COMPLAINT; OR INITIATE ANY PROCEEDING AGAINST THE SELLER IN ANY OTHER FORUM (INCLUDING THE BETTER BUSINESS BUREAU OR ANY MEDIA ENTITY, TELEVISION OR OTHERWISE) PRIOR TO THE COMPLETION OF ARBITRATION. THE BUYER FURTHER AGREES THAT NO SIGN OR BILLBOARD OR WRITING OR CHART OR DRAWING CONCERNING THE CONDITION OF THE HOME AND/OR PROPERTY SHALL BE ERECTED OR PLACED IN SUCH A WAY THAT IS VISIBLE TO PERSONS PASSING BY THE PROPERTY; UNTIL AFTER ARBITRATION IS COMPLETED. IF THE BUYER VIOLATES THIS PROVISION BY FAILING TO MAKE ARBITRATION THE FULL AND COMPLETE FIRST REMEDY, THE BUYER AGREES THAT IT SHALL PAY THE SELLER A LIQUIDATED DAMAGE OF $2,000.OO. IF THE NEW HOME WARRANTY IS RELEVANT TO THE CONTROVERSY, THE PARTIES EXPRESSLY AGREE THAT THE TERMS OF THE NEW HOME WARRANTY SHALL GOVERN AND PREEMPT THIS AGREEMENT. THE BUYER AND THE SELLER FURTHER AGREE THAT ANY SUCH ARBITRATION MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER SUCH CONTROVERSY ARISES. FAILURE TO INSTITUTE ARBITRATION PROCEEDINGS WITHIN SUCH TIME PERIOD SHALL BE AN ABSOLUTE BAR TO SUCH PROCEDINGS, AND SHALL BE AN ABSOLUTE WAIVER, RELEASE, AND DISCHARGE BY BUYER OF ALL CLAIMS AGAINST SELLER RELATING TO THIS AGREEMENT, ANY AMENDMENT THERETO, OF THE HOME AND PROPERTY. IF EITHER PARTY DISAGREES WITH THE ARBITRATOR'S AWARD, THE ONLY REMEDY FOR EITHER BUYER OR SELLER SHALL BE TO FILE A CAUSE OF ACTION IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS, SHOWING BY CLEAR AND COMPELLING EVIDENCE THAT THE ARBITRATOR IGNORED ALL EVIDENCE IN ITS FAVOR. THE PARTIES AGREE THAT THE MAXIMUM AMOUNT OF LIABILITY FOR EITHER PARTY IN A LAWSUIT SHALL BE THE PURCHASE PRICE LESS THE ACTUAL APPRAISED VALUE OF THE LOT. IF THE PARTY FILING SUIT TO CHALLENGE THE ARBITRATION AWARD IS UNSUCCESSFUL, THE PREVAILING PARTY SHALL BE ENTITLED TO ITS ATTORNEYS' FEES AND COSTS, COURT COSTS, AND A SUM EQUAL TO THE PURCHASE PRICE, OF THE HOME AS LIQLTIDATED DAMAGES; WITHOUT THE NECESSITY OF A JURY INSTRUCTION OR FINDING OF FACT AS TO SAME.



Janet Ahmad, President

HomeOwners for Better Building

San Antonio, Texas

http://www.hobb.org

210-402-6800


--
The highest compliment my clients can give me, is the referral of their Friends, Family and Business Associates!

NorCal NACHI Chapter Founder and Chairman.

Originally Posted By: dbowers
This post was automatically imported from our archived forum.



What a crock. CAS is who most home inspectors around the midwest use. We’ve always found them to be fair in their dealings.


Originally Posted By: John Bowman
This post was automatically imported from our archived forum.



icon_lol.gif icon_lol.gif icon_lol.gif icon_lol.gif


Please note the laughing Emoticons.

![icon_lol.gif](upload://zEgbBCXRskkCTwEux7Bi20ZySza.gif) ![icon_lol.gif](upload://zEgbBCXRskkCTwEux7Bi20ZySza.gif) ![icon_lol.gif](upload://zEgbBCXRskkCTwEux7Bi20ZySza.gif) ![icon_lol.gif](upload://zEgbBCXRskkCTwEux7Bi20ZySza.gif) ![icon_lol.gif](upload://zEgbBCXRskkCTwEux7Bi20ZySza.gif) ![icon_lol.gif](upload://zEgbBCXRskkCTwEux7Bi20ZySza.gif)


Originally Posted By: escanlan
This post was automatically imported from our archived forum.



Quote:
Nevertheless, despite the avowed purpose of builder lobbyists to foster ?balance? in the resolution of construction disputes, such builder lobbyists and advocates have, at nearly every legislative session since the RCLA was passed, attempted to redesign it to further restrict homeowner rights. The laudatory words of the RCLA?s proponents belie their intent to create blatant special interest legislation that would protect good and bad builders alike.


In the conclusion:

Quote:
V. CONCLUSION
When it was created by the Texas Leg-islature in 1973,
the DTPA was the first, comprehensive mechanism for private
causes of action in cases of misrepresentation, breach of
warranty and uncon-scionable conduct in consumer transactions.
The RCLA however, retreats from the all encompassing
language of the DTPA to effectively insulate two groups of
residential contractors and ?warranty? companies from the
DTPA?s long arm of consumer protection.

When I began writing on this topic shortly after the RCLA
was originally enacted, I questioned whether the Act was really
necessary. I still do. The RCLA as originally drafted was replete
with issues of constitutionality and fundamental fairness.
Although amendments have mooted some of the
constitutionality issues, more have been created by the 2003
Amendments. I still challenge anyone to deny it is, pure and
simple, special interest legislation.


These both basically sum up the contents of the opinion. Yes it is an opinion, and one from a consumer advocate source. Yes the opposition will write a counter to it and it is all debated. But using the articles from the www.hobb.org site you can see just how bad the situation really is from first hand stories of problems.

I am not trying to bash any group! There are many good people in our governmental systems local, state and federal, who are trying to do what is best for the consumer. Unfortunately there are many more people in our governments that are more interested in the special interests and where there next job will come from once they leave their elected government post (If you understand my inference there?)!

Now if you REALLY want something scary to read then go to www.ftc.gov and thoroughly read the contents of the Fair Credit Reporting Act (FCRA) and the Fair And Accurate Credit Transaction Act (FACTA)!!! To obtain a full understanding don't just breeze through. Read it and when it refers back to another section make sure you stop and go to that section and read it.

The FRCA and FACTA are very well crafted documents that affect everybody in this country no matter who you are and what you do!! How many of you out there really realize that these two acts are about more than just your credit reports and deal with more in depth privacy issues than just financial ones????

Emmanuel Scanlan

Knowledge is power, but sharing knowledge brings peace?