Can I change lawsuit amount the day of?

moynihan1129 · Sep 23, 2009

What is the name of your state (only U.S. law)? NY

I have small claims tomorrow and I filed for $2250. To make a long story short, I had a real estate contract where the seller had agreed to make roof repairs if I agreed to pay an additional $3500 above my final offer price. There is no mention of dollar value in the contract only that he would take care of it. He has not. I received quotes from 3 contractors all in the neighborhood of 2250. I filed for that amount as the $3500 was not in writing. I did find a copy of an email from my real estate agent with the details of the counter offer mentioning the dollar amount of $3500. Can I change the amount I am suing for at court tomorrow or will it be too late? Also, how do I go about adding interest to the money I am going after?

justalayman · Sep 23, 2009

from your post, he did not state he would pay $3500 of repairs or up to $3500 in repairs. Just that he would make roof repairs if you increased your offer by $3500.

As a counter point, if you had paid the $3500 and the repairs ended up being $4500, would you willingly give the guy another $1000?

I think you are owed whatever "it" was worth. Unless there was some specific repair that was spoken of, you are actually going to have difficulty proving that the $2250 repair is what the seller was speaking of. He might have meant he would throw some black jack sealer around the chimney for all your contract states.

interest: are you talking about pre or post judgement?

and to change you complaint; since you do not have time before the hearing to file an amendment, you ask the judge if you can amend your complaint. The judge may or may not allow it or he may ask the defendant if he will allow it. Amending at the last minute put the defendant in a position to not be able to defend that amendment. He came prepared (hopefully) to defend against the suit you filed.

moynihan1129 · Sep 23, 2009

justalayman said:
from your post, he did not state he would pay $3500 of repairs or up to $3500 in repairs. Just that he would make roof repairs if you increased your offer by $3500.

As a counter point, if you had paid the $3500 and the repairs ended up being $4500, would you willingly give the guy another $1000?

I think you are owed whatever "it" was worth. Unless there was some specific repair that was spoken of, you are actually going to have difficulty proving that the $2250 repair is what the seller was speaking of. He might have meant he would throw some black jack sealer around the chimney for all your contract states.

interest: are you talking about pre or post judgement?

and to change you complaint; since you do not have time before the hearing to file an amendment, you ask the judge if you can amend your complaint. The judge may or may not allow it or he may ask the defendant if he will allow it. Amending at the last minute put the defendant in a position to not be able to defend that amendment. He came prepared (hopefully) to defend against the suit you filed.

The house was an estate he inherited from his parents. They put a new roof on last year but the son does not know what contractor did it. Our sales contract says, " Seller will make all necessary roof repairs by a licensed professional where the roof was originally improperly installed." They based the $3500 on a quote from a contractor. They were paid the additional $3500. My lawyer said the contract is not $ amount specific. It could mean $500 or $5000, but it does specifiy what is to be repaird. I was just wondering if I could go after the full amount since I found documentation. I would be happy to just bring the documentation along to support my case and persue the actual amount of the quote.

justalayman · Sep 23, 2009

My lawyer said the contract is not $ amount specific. It could mean $500 or $5000, but it does specifiy what is to be repaird.

well, you got the same answer here then, didn't you?

You did not contract for them to do $3500 of work. You contracted to have them do a specific job. You would be entitled to whatever it will cost you to have the work done.

BL · Sep 24, 2009

As far as interest ,on your claim it states ,plus interest .

The Judge will decide .

Mr. Fusion · Sep 27, 2009

Generally, you may only recover your costs. You paid the original seller $3500 for the repair. That might have been the value of the repair to the seller for the seller's time and bother or the repair plus bonus for the seller. The seller though declined to provide that $3500 of service. So THAT is the amount you should ask for.

That you paid a lesser amount after you bought the house is irrelevant. If the roof still needed repair would be irrelevant. You paid an amount to the seller for a service and that service wasn't provided is the only relevant issue.

A Judge will allow corrections and alterations of the claim if they do not prejudice the defendant. Since changing the amount will NOT prejudice the defendant since they will still have to prove the same element in their defense. Their defense will not change.

Your claim though does significantly. You need to prove not only there was an agreement to fix the roof, but that the agreement was for $3500. Your email will help in that figure. Showing copies of the original offer and the higher one after the repair agreement would help too. Be warned though, unless it was in writing that the roof repair would be done, your chances aren't good.

Good luck

Ohiogal · Sep 27, 2009

You cannot change the amount the day of the hearing as the defendant would not receive proper service of what relief you were requesting.

justalayman · Sep 27, 2009

Mr. Fusion said:
Mr. Fusion said:

That you paid a lesser amount after you bought the house is irrelevant. If the roof still needed repair would be irrelevant. You paid an amount to the seller for a service and that service wasn't provided is the only relevant issue.

Click to expand...

No, he did not pay a specific amount for a specific repair. He altered the purchase price of the house the seller included the repairs. While you may see this as a direct payment for the repairs, it isn't.

A Judge will allow corrections and alterations of the claim if they do not prejudice the defendant. Since changing the amount will NOT prejudice the defendant since they will still have to prove the same element in their defense. Their defense will not change.

Click to expand...

Wrong. There is a difference (in fact it is a totally different justification for the claim) in suing for the cost of the repairs the seller agreed to perform and the claim that the seller charged $3500 for the repairs. There would be 2 very different defenses due to the reason for the difference in claim amounts. Defendant may not be prepared to defend against OP claiming seller charged $3500 for a repair and as such, he most certainly would be not able to provide such a defense because seller did not charge $3500 for the roof repair.

You need to prove not only there was an agreement to fix the roof, but that the agreement was for $3500. Your email will help in that figure. Showing copies of the original offer and the higher one after the repair agreement would help too. Be warned though, unless it was in writing that the roof repair would be done, your chances aren't good.

Click to expand...

You didn't really read the thread, did you. OP stated it was included in the sales agreement that the roof repairs would be done.

You are misunderstanding a negotiation on the price and contingencies on the sale of a house and a contract to perform repairs to the house. If the seller wanted to include the repair of the roof, he could have demanded $0 additional or $50k additional. That does not mean that is what the value of the roof repair is. All that means is for him to accept the offer with the repair included, you will have to pay him $XXX.XX more dollars and OP agreed.

So, OP is due the roof to be repaired, that is it. If it costs him $2300 to get it fixed, that is what he is injured, not the $3500.

If OP wanted to effectively pay for the repair with his upped price, he should have written something such as:

offer to purchase for $XXXXX.XX plus a an amount up to $3500 to pay for roof repairs to be coordinated by the seller. Final cost to be calculated after repairs and included in selling price. Repairs to be performed before closing.

That way, the price will reflect the actual cost of repairs and the closing will not take place until the repairs are done.

The way it is, there is no direct agreement of paying only the cost of the repairs.

BL · Sep 27, 2009

Ohiogal said:
You cannot change the amount the day of the hearing as the defendant would not receive proper service of what relief you were requesting.

Unless the defendant agrees to the amended amount.

If the plaintiff were to ask the court to amend to a higher amount ,the court would ask the defendant if he agreed to it .

If not ,the court would most likely deny the request .

Oh ,and if the plaintiff wins , court cost plus interest would be included .

Mr. Fusion · Sep 28, 2009

Wrong. There is a difference (in fact it is a totally different justification for the claim) in suing for the cost of the repairs the seller agreed to perform and the claim that the seller charged $3500 for the repairs. There would be 2 very different defenses due to the reason for the difference in claim amounts. Defendant may not be prepared to defend against OP claiming seller charged $3500 for a repair and as such, he most certainly would be not able to provide such a defense because seller did not charge $3500 for the roof repair.

The negotiation and price increase was based upon an estimate the seller presented. There was a "meeting of the minds" on the price to repair the roof of $3500. (Or $5.00 or $10,000,000, it wouldn't matter, there was an agreement.) It was agreed that the seller would attach that amount to the price of the house. It would be incumbent upon the Plaintiff to prove that point regardless. What the Plaintiff need do is demonstrate that the value to him of having the seller repair the roof was worth $3,500 and the seller agreed to perform that. That value is contained in the email as well as anyone else that was privy to the conversations.

(This happens frequently, usually so the repair costs will be added to the mortgage instead of being out of pocket after closing. Very legal and proper. This is no different than the also common practice of adding the cost of specific appliances to the selling price. If the seller substitutes a different appliance then the seller still must make "whole" the buyer if the substitution is unacceptable. The seller agreed to repair the roof at a cost to the Plaintiff for $3,500 so that is the value of the repair to the buyer [Plaintiff].)

Here, the plaintiff must present evidence of the need of the roof repair and the agreement for the seller to repair the roof. He can do that two ways. Either he can present the sales agreement where it contains the stipulation "... and the roof will be repaired...", AND, the prior negotiations where the seller sent him an email stating he had an estimate for $3500 to be attached to the selling price, OR, he could just present the final repair bill of $2250.

The Plaintiff has three pieces of evidence he has told us about. He has the sales agreement where the Defendant agreed to repair the roof, a bill from a contractor stating that a repair was required (and done) after the Defendant took possession, and an email from the Defendant stating the cost for him to repair the roof before closing to be added to the selling price. Since we don't know the contents of that email it is presumptuous to dismiss or elevate it. Moynahan did state the email referenced the estimated "value" of repair. If he also has documentation of an offer before this email that is $3500 less than the final sales price, he has added evidence that the cost of the repair was added to the sales agreement.

It is up to the Plaintiff to ask to revise his claim. If the Judge does believe the Defendant may be prejudiced, he can adjourn the hearing for another day. Or the Judge could deny the revised amount as you state. But neither is a given since it will be in the Judges discretion. The New York rules do allow the claim to be revised on the day of the hearing.

http://www.courts.state.ny.us/courts/nyc/smallclaims/pdfs/smallclaims.pdf

(see page 10)

Since this new evidence will not prejudice the defense of not repairing the roof there is no reason for it to be denied. If the Defendant does feel he needs time to counter that revised amount, he is free to request an adjournment in order to prepare. This happens frequently and is a "right" in most Small Claims Courts.

Next time, please read the whole posting instead of just the pieces you want to.

Zigner · Sep 28, 2009

Mr. Fusion said:
The negotiation and price increase was based upon an estimate the seller presented. There was a "meeting of the minds" on the price to repair the roof of $3500. (Or $5.00 or $10,000,000, it wouldn't matter, there was an agreement.) It was agreed that the seller would attach that amount to the price of the house. It would be incumbent upon the Plaintiff to prove that point regardless. What the Plaintiff need do is demonstrate that the value to him of having the seller repair the roof was worth $3,500 and the seller agreed to perform that. That value is contained in the email as well as anyone else that was privy to the conversations.

(This happens frequently, usually so the repair costs will be added to the mortgage instead of being out of pocket after closing. Very legal and proper. This is no different than the also common practice of adding the cost of specific appliances to the selling price. If the seller substitutes a different appliance then the seller still must make "whole" the buyer if the substitution is unacceptable. The seller agreed to repair the roof at a cost to the Plaintiff for $3,500 so that is the value of the repair to the buyer [Plaintiff].)

Here, the plaintiff must present evidence of the need of the roof repair and the agreement for the seller to repair the roof. He can do that two ways. Either he can present the sales agreement where it contains the stipulation "... and the roof will be repaired...", AND, the prior negotiations where the seller sent him an email stating he had an estimate for $3500 to be attached to the selling price, OR, he could just present the final repair bill of $2250.

The Plaintiff has three pieces of evidence he has told us about. He has the sales agreement where the Defendant agreed to repair the roof, a bill from a contractor stating that a repair was required (and done) after the Defendant took possession, and an email from the Defendant stating the cost for him to repair the roof before closing to be added to the selling price. Since we don't know the contents of that email it is presumptuous to dismiss or elevate it. Moynahan did state the email referenced the estimated "value" of repair. If he also has documentation of an offer before this email that is $3500 less than the final sales price, he has added evidence that the cost of the repair was added to the sales agreement.

It is up to the Plaintiff to ask to revise his claim. If the Judge does believe the Defendant may be prejudiced, he can adjourn the hearing for another day. Or the Judge could deny the revised amount as you state. But neither is a given since it will be in the Judges discretion. The New York rules do allow the claim to be revised on the day of the hearing.

http://www.courts.state.ny.us/courts/nyc/smallclaims/pdfs/smallclaims.pdf

(see page 10)

Since this new evidence will not prejudice the defense of not repairing the roof there is no reason for it to be denied. If the Defendant does feel he needs time to counter that revised amount, he is free to request an adjournment in order to prepare. This happens frequently and is a "right" in most Small Claims Courts.

Next time, please read the whole posting instead of just the pieces you want to.

In a nutshell, if the OP got the roof repaired for $2,250, then he's entitled to $2,250.

Mr. Fusion · Sep 28, 2009

Zigner said:
In a nutshell, if the OP got the roof repaired for $2,250, then he's entitled to $2,250.

In summary, you have failed to read the whole history. The Plaintiff paid a premium on the house sale to have the roof repaired. Since the roof wasn't repaired he is entitled to have that premium refunded. As with all claims, he still has the burden of proving his case and all the elements.

Zigner · Sep 28, 2009

Mr. Fusion said:
In summary, you have failed to read the whole history. The Plaintiff paid a premium on the house sale to have the roof repaired. Since the roof wasn't repaired he is entitled to have that premium refunded. As with all claims, he still has the burden of proving his case and all the elements.

That would depend on the exact language of the contract, as has been pointed out. I will admit that I haven't read the contract.

justalayman · Sep 28, 2009

Mr. Fusion said:
Next time, please read the whole posting instead of just the pieces you want to.

I read the entire thread, including your incorrect assessment of a contract of a specific amount to repair the roof.

The contract is contained within the 4 corners of the contract. Within those 4 corners are an agreement to purchase the house for a specific amount as well as the seller to repair the roof. There is nothing that specifies the roof repair is $3500.

The $3500 is an estimate, not a bid. That price is not locked in so based on your position, if the repair ends up being $7000, then the seller can go after the buyer for that additional money, right? After all, you are premising your entire argument on the fact there was a $3500 estimate to repair and that is a dependable number.

I doubt the buyer would be pleased to cough up another $3500 is this was the case and in my position, it would not happen as there was no contract to repair the roof for $3500. There was only an agreement to fix the roof if the buyer paid $XXX.xx for the house.

You want to talk about not reading the thread. How about this quote of yours:

The Plaintiff has three pieces of evidence he has told us about. He has the sales agreement where the Defendant agreed to repair the roof, a bill from a contractor stating that a repair was required (and done) after the Defendant took possession, and an email from the Defendant stating the cost for him to repair the roof before closing to be added to the selling price.

The repair was not done yet. That is why the OP is suing so there can be no bill, only a bid or an estimate and what appears to have been presented was an estimate, which is not a binding contract.

Mr. Fusion · Sep 29, 2009

justalayman said:
The repair was not done yet. That is why the OP is suing so there can be no bill, only a bid or an estimate and what appears to have been presented was an estimate, which is not a binding contract.

Yes, you are correct. My mistake.

The contract is not confined to the words within IF it can be demonstrated that the seller perpetuated a fraud. In this case he told the buyer the roof would cost $3,500 to repair. The purchase price was adjusted by that amount in order (my supposition) to put the repair cost on the mortgage instead of out of pocket after the closing. That is not an illegal, improper, nor uncommon practice.

Regardless of what amount is named, the buyer still has the requirement of demonstrating the roof needed repair, was a part of the sales contract, and was not done.

If the buyer can then show that the purchase price was negotiated as a higher amount in order for the seller to have the roof repaired because that is what the seller said the repair was worth, then that is the value of the repair. In case you missed that class, if you negotiate a benefit for yourself with no intention of fulfilling the contract or agreement, it is called fraud. Most contracts will be voided or altered by a court if they are based upon fraud.

Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.

...

In civil court, the remedy for fraud can vary. In most states, a plaintiff may recover "the benefit of the bargain." This is a measure of the difference between the represented value and the actual value of the transaction. In some states, a plaintiff may recover as actual damages only the value of the property lost in the fraudulent transaction. All states allow a plaintiff to seek Punitive Damages in addition to actual damages.

Fraud legal definition of Fraud. Fraud synonyms by the Free Online Law Dictionary.

As with any case, it is up to the plaintiff to PROVE his case to the Judge. I can go through the five elements of fraud and make arguments to back up each one. For the sake of brevity I won't.

Can I change lawsuit amount the day of?

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moynihan1129

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