Can I rescind the deal?

[asil8170]

What is the name of your state? Colorado
I believe that the previous owner of my house lied on the Seller's Disclosure...or, at the very least, had no idea what he was signing. His English at closing was very broken and extremely hard to understand. Now that we've had some problems with flooding, I realize that his disclosure answers are a bit "questionable." Under heating/cooling he wrote in "city" as the heating system type. He also marked "yes" to underground or above ground storage tanks. There are NONE. He also answered "no" to moisture/water problems. On the day I took possession, I discovered huge rust stains on the basement bedroom carpet. We had an inspection but never saw the house empty because the seller wanted to have the carpets cleaned and stretched before we moved in AND he told us that he needed to close this deal before closing on his $678,000 new build. I think all of this was done to cover up the leaking problem...a deliberate FRAUD!!! Because this house has been wet over and over, there is mold inside the walls. We fixed the leaking problem, tore out the carpet and pad and replaced the drywall and insulation. Although we were advised to replace, or at least treat, the studs in the basement, we could not afford to. Now I'm trying to sell the house. We've lowered the price to $35,000 below what comparable homes in my area have sold for. It's been on the market for more than 15 months. What I want to know is...do I have any chance to rescind the deal? We've been through mediation,
which resolved nothing. (we lost over $47,000 in the floods and the seller's highest offer was $3000) We are now going to court. I would be happy to recover exactly what we lost but since I believe that the seller tried to cover up the latent defect, is rescinding an option?

[Zigner]

Originally Posted by asil8170

What is the name of your state? Colorado
I believe that the previous owner of my house lied on the Seller's Disclosure...or, at the very least, had no idea what he was signing. His English at closing was very broken and extremely hard to understand. Now that we've had some problems with flooding, I realize that his disclosure answers are a bit "questionable." Under heating/cooling he wrote in "city" as the heating system type. He also marked "yes" to underground or above ground storage tanks. There are NONE. He also answered "no" to moisture/water problems. On the day I took possession, I discovered huge rust stains on the basement bedroom carpet. We had an inspection but never saw the house empty because the seller wanted to have the carpets cleaned and stretched before we moved in AND he told us that he needed to close this deal before closing on his $678,000 new build. I think all of this was done to cover up the leaking problem...a deliberate FRAUD!!! Because this house has been wet over and over, there is mold inside the walls. We fixed the leaking problem, tore out the carpet and pad and replaced the drywall and insulation. Although we were advised to replace, or at least treat, the studs in the basement, we could not afford to. Now I'm trying to sell the house. We've lowered the price to $35,000 below what comparable homes in my area have sold for. It's been on the market for more than 15 months. What I want to know is...do I have any chance to rescind the deal? We've been through mediation,
which resolved nothing. (we lost over $47,000 in the floods and the seller's highest offer was $3000) We are now going to court. I would be happy to recover exactly what we lost but since I believe that the seller tried to cover up the latent defect, is rescinding an option?

Doesn't sound like it - try to recover through the courts (as you are doing)

[HomeGuru]

Originally Posted by asil8170

What is the name of your state? Colorado
I believe that the previous owner of my house lied on the Seller's Disclosure...or, at the very least, had no idea what he was signing. His English at closing was very broken and extremely hard to understand. Now that we've had some problems with flooding, I realize that his disclosure answers are a bit "questionable." Under heating/cooling he wrote in "city" as the heating system type. He also marked "yes" to underground or above ground storage tanks. There are NONE. He also answered "no" to moisture/water problems. On the day I took possession, I discovered huge rust stains on the basement bedroom carpet. We had an inspection but never saw the house empty because the seller wanted to have the carpets cleaned and stretched before we moved in AND he told us that he needed to close this deal before closing on his $678,000 new build. I think all of this was done to cover up the leaking problem...a deliberate FRAUD!!! Because this house has been wet over and over, there is mold inside the walls. We fixed the leaking problem, tore out the carpet and pad and replaced the drywall and insulation. Although we were advised to replace, or at least treat, the studs in the basement, we could not afford to. Now I'm trying to sell the house. We've lowered the price to $35,000 below what comparable homes in my area have sold for. It's been on the market for more than 15 months. What I want to know is...do I have any chance to rescind the deal? We've been through mediation,
which resolved nothing. (we lost over $47,000 in the floods and the seller's highest offer was $3000) We are now going to court. I would be happy to recover exactly what we lost but since I believe that the seller tried to cover up the latent defect, is rescinding an option?

**A: did you get a home inspection and compare the inspection results with the seller disclosure statement? Then requested from the Sellerin writing responses to your questions?

[asil8170]

I did get a professional home inspection by a member of the ASHI. But, since the evidence of flooding was covered by the seller's furniture, his report contained no information that would have led us to suspect anything. It wasn't until after the first flood that I realized that the inspector's report noted only vinyl windows throughout the house...all basement windows are aluminum. I tried to track down this inspector but had no luck since I only had his last name (Ross) and the initial of his first name. I went to the ASHI website to find information about the inspector's responsibilities and found out they they are required to "sample" a window of EVERY kind, on EVERY floor. Obviously, he didn't. I've discused, with my attorney, the possibility of holding the inspector liable for a percentage of the damage or, at least, make him return the $350 I paid for his services. If we can find him, we'll looked more closely at those options.
There is one other question that I would like some help with. Can I ask for the "loss of value" on my property that has been caused by the water damage and mold history? I have done some research on this and have found several court cases where the buyer was awarded damages for the devaluation caused by the "stigma" that had been attached to the property, even after the problem was remediated. One of those cases was titled "Mold House Revisited." It was very interesting. The loss of value on that property due to the stigma of mold, was figured at 53%. Of course, they had a much more severe problem, though. Anyway, if I can ask for these damages, how do we calculate the amount? If anyone has experience with this or knows where I might find more information, I sure would appreciate your help. Thanks in advance!

[asil8170]

Thought you'd like an update. I just recived a new set of disclosers from the seller's attorney and, guess what...they've named my home inspector as one of THEIR witnesses. (wish I knew how they tracked him down, I thought I tried everything) Anyway, it will be nice to hear the answer he gives when we ask him about the aluminum windows.

There's one other thing that I'd like to ask...Does anyone know if we can use the information and answers we obtained in mediation, during the trial? The seller said, "we must have spilled something," when asked about the rust stains on the carpet. Now, in his disclosure, has changed his story to, "the water heater broke." I'm sure that his attorney has informed him that by answering, "we must have spilled something," he puts his credibility on the line. Any thoughts?

[seniorjudge]

Are any of the answers given in mediation on record anywhere?

[seniorjudge]

Originally Posted by asil8170

...

There's one other thing that I'd like to ask...Does anyone know if we can use the information and answers we obtained in mediation, during the trial?

....

The obvious answer is yes; try to use them.

If they are not allowed, find another way to get the info in.

[HomeGuru]

The writer should be directing all questions to his/her attorney.

[seniorjudge]

Originally Posted by HomeGuru

The writer should be directing all questions to his/her attorney.

Amen and amen.

[HomeGuru]

Peace brother.

[seniorjudge]

Originally Posted by HomeGuru

Peace brother.

I had a peace once...but it was so long ago...I can't exactly recall what I did with it....

[asil8170]

I've had calls in to my attorney since last week but no response yet.

I think that I may already know the answer to this but, can we use the mediator's notes as evidence during the trial? Better yet, can we get the mediator to testify?

[HomeGuru]

Originally Posted by asil8170

I've had calls in to my attorney since last week but no response yet.

I think that I may already know the answer to this but, can we use the mediator's notes as evidence during the trial? Better yet, can we get the mediator to testify?

**A: please tell us your answer to your question and we'll let you know if correct or not.

[asil8170]

My guess is "no" and I say that because, somewhere in the back of my mind, echos a statement made by the mediator. I think he said something about his inability (legally) to divulge any information that he had not been authorized to give out. I'm just hoping that he meant, ...during the mediation process. But, what about after mediation has failed and we're bound for trial?

[HomeGuru]

Originally Posted by asil8170

My guess is "no" and I say that because, somewhere in the back of my mind, echos a statement made by the mediator. I think he said something about his inability (legally) to divulge any information that he had not been authorized to give out. I'm just hoping that he meant, ...during the mediation process. But, what about after mediation has failed and we're bound for trial?

**A: ok, we will accept your response.