Sunday, January 23, 2011

OUR STORY Part 1: VERDICT DAY FOR THE DANIELS

Well, for those who don't know; tomorrow is a very important day in our lives.  My husband and I have been in a three year battle; two of them spent in the unpleasant process of a civil litigation trial regarding fraud on the purchase of our property.

Like many middle aged Americans, we have both worked very hard to make a living in preparation for our retirement years; and in the process relied on our investment in real estate as a prime source of equity or “savings” towards that future. In 2007 we invested all we had into what we considered to be a perfect piece of prime real estate.  Little did we know that our real estate would turn out to be a black hole in which we would lose everything.  We currently have a mortgage of $2,100 per month, plus a $500 dollar a month mandated flood insurance policy forced on us through an escrow account initiated by our mortgage company, Chase Home Finance. 

The sellers were professed Christians serving in their local church.  Our agent, professed to be a Christian. I even prayed with her on the phone for her business.  The sellers' Realtors . . .?

Bottom line is that they all knew about the characteristics of this property and proceeded to lie and deceive us; taking advantage of our faith in God and trust in the truthfulness verbally and on paper.

Chase Home Finance knows about the fraud.  They have every bit of documentation including communication with our attorney. They know that the value of the property and structure are worth $0...that is ZERO...as in "Who would want to buy this place?" 

Not even http://www.webuyuglyhouses.com/ would touch it.  But Chase doesn't care and would just as soon foreclose on us and have us out on the street so that they can dump this nightmare on the next passer byes while making a clear profit.

Well, we won our civil trail in September!  In fact, we got the guilty verdict on September 17, 2010; three years to the day that a fraudulent flood determination was created to pull the property out of the flood zone.  It's a sign! SUPER!!! The verdict write up by our attorney is below along with a video of water run off after just 1-1/2 inches of rainfall. 

Now the only problem, was just a minor one involving the completion of the jury verdict form.  What does that mean?  Well, it means that the punitive monies awarded to us and our attorneys fees for $43,000 were unrecoverable, apparently because of "confusion" with the jury verdict charge and you can't change it once the jury fills out the form. (This paragraph amended following recent discussion with counsel.)

Yes, a trial fought hard, no defense was ever put on because they had none; and 11 out of 12 jurors rule in our favor...but we get no remedy.  My husband and I left the courtroom devastated at 9:00pm that night in tears.  Years waiting and suffering through this process.  Hours on the stand.  Hours waiting for a jury verdict...you get one and it's in your favor!  Only to have your angry attorney rush you out of the courtroom to devastate you with the horrible news.

I've never seen my husband look like someone had just slit open his abdomen and ripped out his heart, lungs, liver and every vital organ necessary to breath, to survive. We laid in bed starring at the ceiling weeping, "Jesus we just want to go home...please come."

What Mr. Attorney, we have to retry this case?!?!?!  Well that issue is now headed for appellate court.

There is so much more to this story; animals having to be surrendered to rescue, a mower we can't repair with five acres to maintain.  Our house seems to be falling apart at the seams "literally" from the shifting soils resulting form saturation because we are in a flood zone. The structure appears to be severely compromised so that counters, walls, ceilings are cracking with 1" separation or so in areas.  A back door we can hardly open at times because of the shifting.  Ceramic tiles splitting...and more!

I've literally had nightmares of the house collapsing on me while I am screaming out yet no sound comes out of me.  We can't sleep during rain storms because of the water that flows across the property.  If fences are not cleared during storms it quickly flows towards the back of the house and enters.  Oh, our $500 a month flood insurance only covers the structure, not our personal belongings, carpet etc.  Chase really doesn't care about us, just their fraud house. 

Well so much more to this story.  Some of it can be seen on the video blogs on our YouTube channel "Failed Dreams".  More may come, and Mike believes God may have us to write a book about our trials. 

So here we are. Tomorrow is Judgment Day for the Daniel home in Civil Court.  I will take the stand once again in a default hearing.  We had to non-suit the sellers' Realtors from the original trial due to their attorney's health, and then refile the case awaiting a new trial date.  Oddly, their failure to answer the new petition within the designated time as set forth in the statutes provides for a default hearing where the judge may award us the full damages based on my testimony with no formal trial. which could be estimated at $1.2 million.  Or . . . this could be another round in the millstone of testing.

If the later occurs then Mike and I will be on the streets doing street ministry, literally.  We are out of money; out of work, and credit cards are maxed out. During this time I have been nursing a bleeding tooth (broking up inside the gum line).  It's been this way for a year and a half.  At the same time I have had to continue wearing eyeglasses that are scratched and four (4) years old and not working too well with my sight.  As a result I suffer with excruciating headaches nearly every day.  Thank God for a wonderful husband who loves me and takes such good care of me.  Mike has nursed me back to health after more than just a few severe falls.  That's another story.  Then there was that one time Mike broke his toe as two 1300 lb horses were running around him while our neighbors mocked and laughed.  Oh...no they didn't come help because they are friends with the sellers of our home. Can you feel the love?  Medical insurance is not an option so the broken toe, cuts and gashes all have mended with prayer.

Today we walked down the driveway to the mail box like we do each day, holding hands and talking to the donkeys.  Sarah is with foal.  We don't say anything to each other. But we know...we know that tomorrow will determine if the donkeys have to be surrendered to rescue too.  We have a bale and a half of hay left and a couple of bags of grain.  I guess we have been holding on as much as we can so as not to lose faith in a miracle, and perhaps another piece of our little farm stripped away.  We do love God with all our hearts, but the depression has been a struggle.  Nothing like a donkey hug to put a smile on your face.



Here's a write up by our attorney:

The jury found that the buyer’s agent for Annette & Michael Daniel, had committed Negligence in her duties owed as a licensed Texas Real Estate Agent. They Parker County jury also found that the agent had committed violations of the Texas Deceptive Trade Practices Act by both failing to disclose information known to her that would have been critical to the purchase process as well as misrepresenting facts about the house. The Parker County jury then found that the agent had not only committed violations of the Texas Deceptive Trade Practices Act, but that she had done so knowingly.


The case involved a rural piece of property with five acres in Azle, Texas, located on the far eastern edge of Parker County next to the Tarrant County line. According to the Parker County flood plain administrator, Mr. Kirk Fuqua, the house was built illegally and improperly on a platted drainage easement which was created because an unnamed tributary identified on the FEMA flood maps ran through the property. The house was built in 1998 on top of the unnamed tributary. The flood zone designation was exacerbated by the fact that there is no Base Flood Elevation for the house, so no one, including the Parker County Flood Plain Administrator, or FEMA, knows how high water will rise in a 100 year rain event.


At trial, a local Parker County and Weatherford resident Doug Burt, said that he had surveyed this property originally for the developer’s engineer as well as in 2003 for the previous homeowner. He testified that the agent had contacted him at the beginning of the Daniels’ interest in the property and that he advised the agent and her brokerage firm that the house was in a flood plain and located in a drainage easement. Burt then provided the agent with two surveys, one from 1998 which was created to try and move the house out of the drainage easement, and one in 2003 that showed the house in the drainage easement. He told the agent at that time that the house had “two strikes” against it or words to that effect.


The Daniel's agent then never relayed that information to her buyers, the Daniels. Even more alarming was the fact that she sent the Daniels the 1998 survey with a drainage easement drawn around the house despite the fact that Doug Burt, the surveyor, advised her it had never been recorded – meaning it was useless and clearly misleading. The 2003 survey showed the house on top of the drainage easement.


Despite having a copy of the 2003 survey in her possession, the agent never provided the survey to her clients, the buyers.  Even more alarming was the discovery by the mortgage company that the house was in a flood zone. The mortgage officer, advised the agent, that the house was located in the flood zone. The agent never advised the Daniels the house they were considering purchasing was in the flood zone. Instead, she contacted the sellers’ agents to find out if they had information to refute the finding by the mortgage company.


The sellers’ agents then produced a new document that the Daniel's agent gave to the mortgage company to persuade them that the house was not in the flood zone. The Daniels, the buyers the agent represented, never knew about any of the flood zone determinations or attempts to change the flood zone status of the property. They closed on the house and 9 months later, their mortgage company rechecked the property and found the house was in fact in the flood zone.


A licensed real estate appraiser, testified that the house and land was not worth anything and had a zero dollar value because of the flood zone and drainage easement status.  The Parker County Tax Appraisal District also ruled in a hearing and arbitration process that the home had $0 value.  In fact, the tax appraisal district made their decision unanimously and uncontested.


The Texas Real Estate Commission has had two investigators following this case, but to date has never done anything other than request information. Even with a Parker County jury finding Deborah Moran committed statutory real estate fraud, the Texas Real Estate Commission had done nothing to the agent or her mortgage broker.  Both are still conducting business as usual in Parker County, Texas.


NOT IN A FLOOD ZONE?

GOOD BYE HUMBLE ACRES


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