Fwd: Fw: Lemon law

[Guest guest]

Ken,

This response is not meant to discourage your efforts or offend but, what you call a Home Lemon Law is a combination of other consumer laws already in place with modifications.

A Home Lemon Law should be very simple and be resolved by a simple state administrative procedure without the use of an attorney. Otherwise your efforts are doomed to failure. The Lawsuit Abuse people will be all over you. They currently have a nationwide multimillion dollar TV ad campaign for that very reason.

A Home Lemon Law is simple. If a builder fails to repair the home after three tries he must buy it back. The qualifying conditions should be, if the home has a Major Structural Defect or if the damage substantially reduces the value of the home. Finally, if the house is contaminated with Toxic Mold the builder must buy it back within 30 days after notice is given. If the builder fails to buy back the home after the decision is made through the process administered by the agency charged with enforcement, then the builder will not be allowed to do business in that state and will forfeit their bond. Again, it must be a simple process.

If the homeowner doesn't like the results they can always us the judicial system that is already in place under state law.

Also your bill gives multiple choices, "double or treble damages." Then you also provide for attorneys fees. Usually the rational for treble damages is so an attorney can take the case on a contingency basis with assurance they will be paid, so the laws with treble damages doesn't provide for additional attorney fees. That brakes down to: one third is for actual damages, one third is for pain and suffering and one third is for the attorney fees.

This bill is too complicated. I have spoken with the state agency that showed an interest in the home lemon law that was introduced in Texas and was reported in the Boston Globe.

There is only one more problem. That is that because HADD has never shown significant efforts to be proactive toward working with legislator to enact new legislation we have found it necessary to distance ourselves. We must have everyone on the same page working with legislators and not criticizing them but rather to show them the problems and solutions, in order to make a difference. I sincerely regret that HADD has been openly negative and critical instead of expending efforts that offer positive legislative solutions.

Of course our efforts are a full time job with no pay, and it is time consuming to keep our own efforts productive, positive and professional and our membership on the same page. To try and work with other organizations that do not deliver that same productive message and when their efforts are counterproductive, it reduces our effectiveness. This is most unfortunate.

It is my hope that you will not take this messages as an insult or undue criticism of your efforts but as a message of encouragement to direct your efforts in a positive, productive way. Unfortunately, we don't have hundreds of thousands victims who can afford or who are willing to march on Washington to make our point and bully ourselves into position for changes. That would take a miracle that will never happen.

Even NAHB recognizes our effectiveness and have taken steps to counter, causing them to expend a great deal of effort and money to fight our successes. Yes they have the money but we have the credible attention with legislators, and the press. They see us as the underdog who keeps getting knocked down but persistent at working toward logical solutions.

Sincerely,

Janet

Janet Ahmad, PresidentHomeOwners for Better BuildingSan , TXhttp://www.hobb.org

----- Forwarded Message ----- From: KENHMOULTON@... hobb@... Date: Wed, 23 Oct 2002 09:23:02 EDT Subject: Lemon law Janet,I thought I sent this to you before. Just change Massachusetts to Texas. You do have my Toxic Mold Law don't you? It is attached in case you don't.Ken MoultonAN ACT TO PROVIDE FOR ENFORCEMENT OF LOCAL AND STATE BUILDING, FIRE, HEALTH, SAFETY, ELECTRICAL AND BUILDING CONSTRUCTION LAWS AND STANDARDS.Be it enacted by the Senate and House of Representatives in General Court Assembled, and by the authority of the same, as follows:Chapter 1. Construction Lemon Law Article 1. General Provisions12669.A. This Chapter shall be known, and may be cited. as the H. Moulton Jr. Construction Lemon Law Act for Massachusetts.Chapter 12669.B: Section 1. All new Commercial and Residential construction or rehabilitated construction, must meet all applicable, local, state and federal codes, standards and ordinances at the time of the completion of construction or rehabilitation.Chapter 12669.C: Section 1. Civil actions and remedies; class action; demand for relief; damages; costs; exhausting administrative remedies.Section 1. (1) Any person, or person's, who has (have) been injured by another person, person's, local or state government employee, local or state government agency, commission or body, a company or corporation use or employment of any method, act or practice declared to be unlawful or that is in violation of Local, State or Federal Building, Fire, Plumbing, Electrical, Health or Safety codes or standards may bring an action in the superior court, or in the housing court whether by way of original complaint, counterclaim, cross-claim or third party action, for damages and such equitable relief, including an injunction, as the court or a jury deems to be necessary and proper.(2) Any persons entitled to bring such action may, if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated and if the court finds in a preliminary hearing that he adequately and fairly represents such other persons, bring the action on behalf of himself and such other similarly injured and situated persons; the court shall require that notice of such action be given to unnamed petitioners in the most effective practicable manner. Such action shall not be dismissed, settled or compromised without the approval of the court, and notice of any proposed dismissal, settlement or compromise shall be given to all members of the class of petitioners by certified and registered mail delivered through the United States Postal service.(3) At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court or jury finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court or jury finds for the petitioner, recovery shall be in the amount of actual real, medical, loss of use, legal fees and pain and suffering damages; or up to three but not less than two times such amount if the court or jury finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two. For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence, regardless of the existence or nonexistence of insurance coverage available in payment of the claim. In addition, the court or jury shall award such other equitable relief, including an injunction, as it deems to be necessary and proper. Notwithstanding any other provision to the contrary, if the court or jury finds any method, act or practice unlawful with regard to any security or any contract of sale of a commodity for future delivery as defined in section two, and if the court or jury finds for the petitioner, recovery shall be in the amount of actual damages.(3A) A person may assert a claim under this section in a district court, whether by way of original complaint, counterclaim, cross-claim or third-party action, for money damages only. Said damages may include double or treble damages, attorneys' fees and costs, as herein provided. The demand requirements and provision for tender of offer of settlement provided in paragraph (3) shall also be applicable under this paragraph, except that no rights to equitable relief shall be created under this paragraph, nor shall a person asserting a claim hereunder be able to assert any claim on behalf of other similarly insured and situated persons as provided in paragraph (2).(4) If the court or jury finds in any action commenced hereunder that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action.(5) Any person entitled to bring an action under this section shall not be required to initiate, pursue or exhaust any remedy established by any regulation, binding arbitration contract, administrative procedure, local, state or federal law or statute or the common law in order to bring an action under this section or to obtain injunctive relief or recover damages or attorney's fees or costs or other relief as provided in this section. Failure to exhaust administrative remedies shall not be a defense to any proceeding under this section.(6) Recovering or failing to recover an award of damages or other relief in any administrative or judicial proceeding, except proceedings authorized by this section, by any person entitled to bring an action under this section, shall not constitute a bar to, or limitation upon relief authorized by this section.