Parker-Built Homes, Inc Builder Hiding Behind Limited Warranty And Binding Arbitration bad for home owner * UPDATE, Home Builder Warranty FRAUD

JAY BRYAN BELL, P.C.





Attorney at Law



Jay B. Bell, J.D., M.B.A.

3675 Crestwood Parkway 770-935-6161

Suite 400 770-935-6164 (Fax)

Duluth, Georgia 30096 jay.bell@niindspring.com



January 31, 2001





Via Certified Mail



Re:Parker-Built Homes



Dear Mr. :



I am corporate counsel for Parker-Built Homes. I have been informed that you have instigated a campaign to discredit and harm my client's business. Your placement of signs on your property disparaging my client, and the content of your web site ParkerBuiltProblems@Yahoo.com, constitute slander as defined in O.C.G.A. 51-5-4. It is obvious that these actions are not directed at seeking redress for valid complaints, but are intended to damage his present and future ability to do business. This notice shall serve as written demand upon you that you cease these actions immediately, and publish a retraction of your charges.



If you do not cease these actions within seven (7) days, suit will be tiled against you. In addition to seeking damages for lost business, and damage to reputation, we will seek punitive damages and reimbursement for attorneys fees pursuant to O.C.G.A. 13-6-11 and 9-15-14. I trust that you will heed this advice and cease your malicious and unlawful activities.



Very truly yours,







Jay B. Bell







Cc: Parker-Built Homes



Response:



February 2, 2001

Jay B. Bell, J.D., M.B.A.

3675 Crestwood Parkway

Suite 400

Duluth, GA 30096

Dear Jay Bell:

I appreciate your interests in our, as you say, campaign on Parker-Built homes. I would like to convey to you that none of our dealings have been without sensible deliberation and guidance. Our yard sign does not disparage your client and is not malicious or unlawful. It simply reads Dissatisfied Parker-Built Owner, Look At My 8 Month Old Driveway Crumbling, For Starters. See More At www.geocities.com/ParkerBuiltProblems Or Email at ParkerBuiltProblems@yahoo.com. We are dissatisfied, the house is 8 months old, the people who are stopping to examine the sign can visibly appreciate that the driveway is crumbling and the webpage contains pictures and credentials accurately offered for community inspection. We are not endeavoring to obstruct his present and/or future ability to do business. We are exercising our freedom of speech, using the facts of our situation, to educate consumers. With most of the closing paperwork in the market containing a binding arbitration clause, they're unavoidable. I did not realize and was not informed that I was actually surrendering my Constitutional rights when I signed that contract. "...Builder makes no warranty, express or implied as to quality, fitness for a particular purpose, merchantability, habitability or otherwise..." The obligation on the builder to have enough pride in their work to back it without these kinds of consequences to the consumer is not that grand. Builders in the state of Georgia are not licensed professionals; consequently without a state board to regulate the industry I would contend that an implied law (U.S. Code Sec. 2304) that should not be circumvented requires this obligation as the only safeguard to the consumer. Our actions are only intended to straightforwardly relate this circumstance, to anyone that is interested, so that they will be capable of making an informed decision on an investment of this enormity.



In order for a person alleging defamation to prevail in a lawsuit, Georgia courts require that person to show all four of these elements: (1) The allegedly defamatory statement must be shown to be factually false; (2) communicated verbally or in writing to another party; (3) made with malice or a reckless disregard for the truth; and (4) deemed harmful to the person allegedly defamed. The pivotal question is whether our actions can reasonably be interpreted as stating or implying defamatory facts and, if so, whether the defamatory assertions are capable of being proved false. In satisfying this, and specifically OCGA 51-5-6 The truth of the charge made may always be proved in justification of an alleged libel or slander., I can assure you that any alleged defamatory statement pertaining to our campaign can be proven based on fact, or consequently shown to have been expressed, and unambiguously declared as an opinion and not a statement of fact.

In case you have not visited the website (you listed the email address in your letter and not the web page address), scanned-in documents and pictures are presented as evidence and the intermittent warning is clearly stated as I DON'T THINK YOU DO or IN MY OPINION. Here is an excerpt from the main page where we clearly disclose our position:

Terms and Conditions

We offer this web site to you only if you accept these terms and notices.

Your use of this web site constitutes your agreement to all our terms and notices.

1. You are welcome to the information contained within this web site.

2. You agree that this information does not form advice from legal or real estate professionals. Please confer with professionals before you conduct business using information shared here. This web site contains personal experiences in an exercise of our First Amendment rights.

5.3. All the facts contained within our web site are true and correct to the best of our knowledge. We published documents and pictures for authenticity. If you believe there is an error or misstatement of fact within this web site, please let us know at ParkerBuiltProblems@yahoo.com also feel free to forward any comments, questions or concerns that you may have.







Prior to the campaign I was directed to these current, area cases involving yard signs as an expression of free speech. Ricker Builder, Inc. v. Gardner; Guevera v. City of Norcross; and Nash v. DeKalb County. Courts have protected the following yard-sign expressions in these cases: This lemon is for sale. Built by Janet Ricker Builder, Inc.", Unhappy Homeowner", and Greedy developers suck". There are many more federal cases echoing this position that I can provide to you if you are interested. However, the sign will be coming down on February 3, 2001. We are deliberately in violation of our neighborhood covenants and have been notified. February 3, 2001 is the 10th day subsequent to notification and according to the bylaws, action will be taken ensuing the 10th day. Although we feel the action they will take is negligible, we are content in removing the sign. As I stated, we were exercising our freedom of speech, using the evidence of our circumstances, to educate consumers. We believe we have accomplished that. In so doing, we have generated the attentiveness and/or guidance of the ACLU, the Georgia Governor's Office of Consumer Affairs, Homeowners for Better Building, Homeowners Against Deficient Dwellings, the Better Business Bureau, the Federal Trade Commission, the Georgia Attorney General, the Atlanta Association of Home Builders and other homeowners that have similar stories. With this information and support we have been able to organize and energize our efforts towards an amicable resolution of our issues through the warranty process and then arbitration.



Again, thank you for your interests.









Sincerely,









C. Parker-Built Homes, Stacy Parker

Georgia Governor's Office of Consumer Affairs, Mike Kaiser

Federal Trade Commission, Jim Prunty

American Civil Liberties Union, Gerald Weber, Robert L. Tsai

Georgia's Attorney General, Thurbert E. Baker

Better Business Bureau, Kimberly Hall

Atlanta Home Builders Association, E. B Burney

Home Owners for Better Building, Janet Ahmad

Home Owners Against Deficient Dwellings, Nancy Seats

The following will highlight the fruitless endeavor that my wife and I have been pursuing over the past nine months with our brand, new (April 2000) Parker-Built Homes, Inc. (of Lawrenceville, Georgia) home. The only accomplishments along the way occurred when we took matters in to our own hands and contacted the manufacturer's directly, using phone numbers provided by the builder, to resolve an issue.

Problems At Move In



Our Action Taken



Air conditioning not cooling, not draining, leaking and making noises - 7 different Mitchell Mechanical appts.



Hardwood floor panels raised. 1 appointment - Sherwin Williams



Garden tub jet not working. 2 appointments - AquaGlass



Basement leaks. 2 appointments - Murrell's Waterproofing

Comfort Home Inc. required a/c unit repositioned because it was pinned between trusses and not accessible. - 1 more all day appointment with Mitchell Mechanical

Industrial staples under carpet, prongs up. - Got tired of cutting feet so we dug 7 of them out ourselves since no one was responding.



The others are still in an indeterminate state. Our builder, Stacey Parker of Parker-Built Homes, Inc. (Lawrenceville, Georgia), directed us to pursue all of these complaints through a warranty company known as Builders Resource Group. And as it turns out, their name is exactly that.



They are the resource for the builder that denied responsibility for the issues we identified with our home even though we completed their second punch list between 30 and 90 days after closing as stipulated by their program. Vice President Hal Hyman, BRG writes Our customer/client is the builderMr. & Mrs. Cunningham have no fiduciary or other contract with our company and there is no obligation of any type from Builders Resource Group to them.



Conversely, their builder, Parker Built Homes, has paid for our services and is very satisfied with our performance. However, while going through my closing papers I came across a Residential Warranty Corporation warranty book.



It appeared that they were the actual resource for the homeowner and that I should have pursued this through them all along. Unfortunately for us, they have indicated that they will act as a mediator between our builder and us. They will setup a meeting for both parties to review the issues. The good news is that he will finally be forced to see the concerns in person, the bad news is that there is no third party to force him to do anything.



Stacy Parker has been kept up to date on all of the correspondence that I have had with the BBB, the FTC, the Georgia Attorney General, the Georgia Office Of Consumer Affairs, Home Owners For Better Building, Home Owners Against Deficient Dwellings, the BadBusinessBureau.com, the Residential Warranty Corporation, etc. In fact, in early October he made an appointment with us to come by and see what he could resolve but he did not show up for that appointment. He did not come by, call or leave a note as to why. That was the last time that we heard from him until receiving a certified letter the first week of 2001 that claimed that no action was required. Homeowners purchasing a new home expect product satisfaction. When compared to most consumer purchases, a home represents the largest investment most people will make during their lifetime.



Unlike a toaster or a mower, a home is a type of purchase that is not returnable. - quote from the RWC web page. Their page also clearly indicates that our Builder is responsible for correcting the deficiencies and that RWC has established an excellent resolution process in the event that an unresolved warranty issue arises. They specialize in communicating between the builder and homeowner and have a well-defined dispute settlement process for handling warranty issues binding arbitration.



Pending Issues With RWC AndParker-Built Homes, Inc



Kitchen Sink Basin Wearing Prematurely



Front Door Insert Splits - Exterior Visible From Interior



Support Cross Joists In Basement Separated



Bowed/Warped Basement Support Beam



Support Beams In Attic Truss Split



Roof Of Front Porch Repaired Unsatisfactorily



Garage Floors Not Properly Sloped Toward The Garage Door Opening

Eroding Around Foundation Not Graded So As To Drain Surface Water Away From The Foundation Walls



Driveway Surface Scaling/Disintegrating



Floor Squeaks In Master, Guest 1 and Breakfast



Basement Exterior Door Sticks

Family Room Exterior Door Sticks



Cracks in Driveway through Basement Foundation And Walls



Cracks in Sidewalk



Windows Difficult to open, close, lock



Gaps between Molding, Trim and Walls



Loose Sub Floor - Master



So, we have a complaint regarding the standard Residential Building Industry practice of failing to specifically disclose a binding arbitration clause in their closing papers. Individuals do not typically have lawyers present on their behalf at closings, but with these clauses being buried in a mountain of paperwork consumers need them. With all of the passing of documents around the table and the signing here, there, everywhere, I find it unconscionable that builders include a piece of paper or rather a few lines on a piece of paper that strip the purchaser of their Constitutional rights.

By the time I realized that I was hooked, it was too late. I had a problem that wasn't getting resolved, I was trying to put pressure on the builder, but he brought up the binding arbitration clause.



Reviewing my closing papers I came across my fatal error, around thirty words on the bottom right hand corner of a Warranty Application that I initialed. The document appears to be a good thing for the buyer, it's a warranty, but can you believe that those thirty words are powerful enough to deny my 7th Amendment Rights and the Implied Warranty outlined in our U.S. Code! I was mad and I was curious. Why was he so comfortable with hiding behind this clause, it's still a warranty for my home? So, I began to do my research. Builders and some realtors will tell you that it's a great process for resolving a dispute and that it is less expensive and quicker.



Well, that's the one side to it. The other side is probably why he was so comfortable. By having this in all of his contracts the builder is essentially soliciting business for the Arbitration Association, sounds like a conflict of interest to me. Some will tell you it is less expensive, but I believe the contrary. In my case, I am looking at items that would probably cost around $10,000 to make right (around $4,000 if the driveway is structurally sound and just needs to be resurfaced). Without an attorney, arbitration will cost around $3,500 (not including time and other resources) while small claims would cost less than $100, and in my county has a $15,000 limit. In court I am protected by the rules of law, in arbitration I am not. In court there is an appeals process, in arbitration there is not.



The arbitration process can be much shorter which is a distinct advantage to a builder, who is already an expert witness, has fast access to other expert witnesses (friends) and probably has a lawyer on retainer. The consumer has typically less than 30 days to fully absorb arbitration guidelines, warranties, precedents, and take time off from work to search for an attorney, an arbitrator and expert witnesses. Not right.

With most of the closing paperwork in the market containing a binding arbitration clause, they're unavoidable. A consumer that has faith in their realtor to see them through the process is misguided. Realtors are unable to identify problem areas related to arbitration because this practice has become so accepted. Realtors deal with it everyday, but this was just my second home and things sure have changed.



I did not realize and was not informed that I was actually surrendering my Constitutional rights when I signed that contract. "...Builder makes no warranty, express or implied as to quality, fitness for a particular purpose, merchantability, habitability or otherwise..." The obligation on the builder to have enough pride in their work to back it without these kinds of consequences to the consumer is not that grand. Builders in the state of Georgia are not licensed professionals; consequently without a state board to regulate the industry I would argue that an implied law (U.S. Code Sec. 2304) that should not be circumvented requires this obligation as the only safeguard to the consumer.



At the present time (February 2001) I have an upcoming appointment with a foundation expert to examine the structural soundness of my home, the concrete company is awaiting a request from the builder to do a core sample of the driveway (don't hold your breath) and RWC should be arranging a meeting for us with the builder. Stay tuned