Suit against builder

[samir1]

What is the name of your state? New Jersey

Hello Friends,

I'm in NJ. I purchased new construction home from this builder. During the color selection process, I asked them that I need Biscuit color bathtub. I have that color selection in writing. But builder installed white color bathtub and I asked them to fix their mistake but they refused.

The sales agreement I signed with the builder says following: "Buyer has been advised and agrees that buyer's exclusive remedy with regard to any claims for construction defects shall be through the arbitration procedure pursuant to the home owners warranty program provided by the seller. This shall constitute an election by buyer who waives the right to institute suit."

I filed 2/10 warranty claim and the claims booklet says following:
"Pursuant to the New Jersey new home warranty and builders registration act, once you send a notice of claim or a request for arbitration claim form to 2-10 HBW, you have elected the warrant and arbitration as your sole remedy, barring you from any other remedy. When you file a notice of claim or a request for arbitration claim form, you will relinquish your right to file in any court a complaint, counter-claim, cross claim or third party complaint that alleges matters covered by this warranty in particular or unworkmanlike construction in general. All disputes related to such defect or major structural defect shall be resolved by binding arbitration as provided in section VI."

The warranty booklet also has exclusion list so following item is not covered by the warranty:
"Any materials and/or workmanship furnished and installed by the builder that does not comply with the specifications in a sales agreement or contract which is not defective."

2/10 warranty said the bathtub color issue is not covered by warranty due to above listed exclusion so I ended up withdrawing my 2/10 warranty claim.

Then I filed suit against the builder in small claims court because the bathtub color issue is not really defect, it is breach of contract/agreement since I told them to install biscuit color bathtub and builder installed wrong color bathtub.

I got default judgement since defendant failed to appear for trial, but now defendant has filed "motion to Vacate default and Vacate default judgement". In their motion, defendant saying I am barred from pursuing small claims court as I elected exclusive remedy thru home warranty program.

So I need your help here please.

* Did I really gave up my rights to take builder to court because my bathtub issue is not really defect, it's wrong color which I think is breach of contract/agreement?

* Do I not have rights to take legal action if the issue is excluded from warranty coverage provided by seller?

* The sales agreement I signed says "buyer's exclusive remedy with regard to any claims for construction defects shall be through the arbitration procedure" - so I elected exclusive remedy only for "construction defects" but the bathtub color issue is not construction defects.

* The home warranty program says "you will relinquish your right to file in any court a complaint, counter-claim, cross claim or third party complaint that alleges matters covered by this warranty in particular or unworkmanlike construction in general" - pay attention to keyword "covered" - means I have not relinquish my rights since this issue is in warranty "Exclusion" list right?


Thank you all for your input.

 

[Zigner]

Based on everything you've posted (and nothing else), this layman would tend to agree with you. You should seek the advice of a local attorney for advice based on all of your documents, etc.

 

[samir1]

Based on everything you've posted (and nothing else), this layman would tend to agree with you. You should seek the advice of a local attorney for advice based on all of your documents, etc.

Thank you for quick reply. I lost my job recently and can't afford attorney. Talked to few, but they all are costly and won't even look at documents until I pay them.

 

[samir1]

One of the document defendant filed "answer to plaintiff's complaint, affirmative defenses, and cross-claims". In this document there is one paragraph, I think I understood, but not 100% clear.

"Wherefore, defendant, hereby demands judgement against plaintiff dismissing the first count of plaintiff's complaint, with prejudice, together with costs of suit, attorneys' fees, and such other relief as the court deems just and equitable."

I understood part of this, but not fully. Sorry English is my 2nd language so if someone can please help in simple English, that would be great.





Also one other document says following, "Please take notice that on Fri Aug 6th 2021 at 9am, in the forenoon or as soon thereafter as counsel can be heard, the undersigned, attorneys for defendant, will apply to the above-named court, for an order to vacate the default and vacate the default judgement in the above captioned matter." - does this mean they are requesting trial after Aug 6th?

 

[quincy]

One of the document defendant filed "answer to plaintiff's complaint, affirmative defenses, and cross-claims". In this document there is one paragraph, I think I understood, but not 100% clear.

"Wherefore, defendant, hereby demands judgement against plaintiff dismissing the first count of plaintiff's complaint, with prejudice, together with costs of suit, attorneys' fees, and such other relief as the court deems just and equitable."

I understood part of this, but not fully. Sorry English is my 2nd language so if someone can please help in simple English, that would be great.





Also one other document says following, "Please take notice that on Fri Aug 6th 2021 at 9am, in the forenoon or as soon thereafter as counsel can be heard, the undersigned, attorneys for defendant, will apply to the above-named court, for an order to vacate the default and vacate the default judgement in the above captioned matter." - does this mean they are requesting trial after Aug 6th?

Contract analysis goes beyond the scope of this forum and into the practice of law, which will require personal assistance from an attorney licensed to practice in your jurisdiction.

 

[Zigner]

I'm sorry, but you really are going to need an attorney to explain the documents to you. If you cannot get an attorney, then you are likely going to need to learn to live with your white bathtub. I'm not saying that to be cruel, rather, I am simply pointing out the reality.

 

[Zigner]

Contract analysis goes beyond the scope of this forum and into the practice of law, which will require personal assistance from an attorney licensed to practice in your jurisdiction.

That's actually part of what the OP was served related to the lawsuit, not part of the contract. Of course, the same thing applies in either case.

 

[samir1]

Thank you. I understand and I'm not here for legal advise, but at least if someone can read and provide their point of view - not as legal advise, but as opinion?

 

[samir1]

I'm sorry, but you really are going to need an attorney to explain the documents to you. If you cannot get an attorney, then you are likely going to need to learn to live with your white bathtub. I'm not saying that to be cruel, rather, I am simply pointing out the reality.

understand, thank you.

 

[Zigner]

Thank you. I understand and I'm not here for legal advise, but at least if someone can read and provide their point of view - not as legal advise, but as opinion?

The problem is that such explanation is actually illegal to provide. You need an attorney to do so, not an internet forum.

 

[samir1]

ok understand. thank you.

 

[quincy]

Here is one link to free or low-cost legal assistance in New Jersey:

https://www.lsnj.org

What you appear to have is a breach of contract action that you could pursue.

 

[samir1]

Thank you all.


I reached out to 2/10 warranty and this is what they said,

"Based on my conversation with the Bureau of Homeowner Protection, which is a part of the NJ Department of Community Affairs, if the item is found to be not covered due to an exclusion, you have not elected the remedy, and may pursue it outside the scope. The same holds true if you simply remove it from arbitration. You are not “penalized” for submitting an excluded item."

Now if I tell judge that 2/10 team or bureau said this, they will not accept it, even in writing because court don't accept what he or she says unless they are there as witness.

So I checked with Bureau to see if they can point me to rule/statute to support what they said above and I have no luck. Anyone aware of this rule/law/statute that I can read little more and present it in court?

I tried to Google search and can't find statute/rule anywhere. If you could help me find this statute that would be great help.

 

[quincy]

Perhaps this: https://www.njcourts.gov/attorneys/assets/civilcharges/4.21.pdf?c=SyM

 

[samir1]

Thank you. I'll take a look. Appreciate your help.

Can someone please help me find legal definition of "construction defect"?

I mean I know what it means and found one from dictionary, but not sure if in law world, there is specific definition for this word?

from dictionary: "Construction Defect — a deficiency in the design or construction of a building or structure resulting from a failure to design or construct in a reasonably workmanlike manner, and/or in accordance with a buyer's reasonable expectation."