Legal Question in Real Estate Law in California
A promise not intend to keep? An intentional misrepresentation? Or both?
The addendum from the contract allows buyer to use outside lender and still have the incentive bonus if inhouse lender can not reasonably compete. We got approved by an outside lender with a better rate and provided Seller all info right away. We were ready to close escrow ontime but seller did not response and waited 10 days before closing escrow to tell us we could not have the incentive bonus because it is from inhouse lender and if we use outside lender we could not have it. We said the addendum allows us to do it and the sale rep. said their inhouse lender could not contact us to discuss about it (but his assistance and the sale rep. , also escrow agents could contact us anytime and got response from us right away). She told us they could do any kind of loan (their LO confirmed before they did not do that 1 ARM loan) and they wanted to do that loan for us. We agreed to let them try and they matched the rate but not the term and the closing cost. The modified addendum stated we had to use their approved lender only to get the incentive. We refused to sign, they let us use our lender but changed the addendum again to use the incentive only for closing cost, the rest returned to seller. We didn't sign and failed out of escrow??
4 Answers from Attorneys
Re: A promise not intend to keep? An intentional misrepresentation? Or both?
It sounds like you have a case. Please call if you'd like to set up a consultation.
Re: A promise not intend to keep? An intentional misrepresentation? Or both?
I would allege Breach of Contract and Fraud as well. How much money or prospective economic advantage was lost? Contact me directly.
Re: A promise not intend to keep? An intentional misrepresentation? Or both?
This is a complex set of facts, but the indications are you complied with all the provisions of the contract.
You are entitled to damages from your loss, assuming you can prove damages. Occasionally, the courts will order specific performance of a contract, that is, despite one party backing out, the courts will order the contract to be completed as per the original agreement.
You should retain either a real estate attorney, or a contracts attorney, and hopefully one who specializes in both, to represent you and commence negotiations to acquire damages out of this situation.
Good luck!
Re: A promise not intend to keep? An intentional misrepresentation? Or both?
If you are referring to the statutory definitions of "actual fraud" as set up in the Civil Code as sections 1572(1) and 1572(4) respectively, I suggest you also look at 1572(2) and possibly the other two definitions of actual fraud. Depending upon the state of mind and things known at the time to the promisor, there may be one or more kinds of actual fraud here, or maybe none at all.
Fraud is difficult to plead and prove, and professionals like builders and lenders will tap-dance their way around the events to raise doubts in the mind of the judge or jury as to what they promised, their state of mind at the time of the promise including qualifications and presuppositions about this-and-that which qualified their duty to perform.
Don't overlook contract-based claims as well as fraud when planning your suit. Also, check your contract for attorney-fee and mediation/arbitration clauses, either of which could affect your strategy.
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