Attorney's Point of View - BUYER BEWARE
Brian, Angela, and Constance came to me in a desperate situation. From the very first meeting, I could tell they were clearly and genuinely distraught over the condition of their "dream home", which had sadly turned into a nightmare. I wasn't the first attorney they had consulted with, but there was seemingly no attorney around who wanted to take on a "big builder" like Meyer-Douglas. Having done the bulk of my clerkship in law school and my first couple of years in practice in the area of consumer law (filing lawsuits on the behalf of aggrieved consumers), I was familiar with the typical attorney drawbacks on this type of situation. Initially, I have to admit that even I referred them to another attorney for help. Even that attorney, (who had been practicing in this area for nearly 30 years) did not want to take the case, so they landed back in my office. After seeing the documentation on the water intrusions in their brand new home (coincidently located not too far from my own new home), I not only empathized with the situation, but was furious at the way they were being treated by the builder.
After reviewing their contract, I noticed the arbitration clause right away. Like so many other consumers, Brian, Angela and Constance had no idea what this clause meant to their legal claims against Meyer-Douglas. They were never encouraged to have the contract reviewed, but simply told "sign here" by their salesperson. I have seen many consumers fall into this same trap - having no idea at all that if they have anything wrong with their home after it is built, they now have to pay over $4,000.00 just to file the claim. This doesn't even begin to address the issues of attorney's fees, court costs, expert fees and inspection fees. For most Americans who simply make an honest living and support their families (even with an average savings account), filing a claim becomes financially unfeasible. This is exactly what the builder wants. On top of all of this, the builder has the advantage of never having to face a jury of peers, but instead, professional lawyers and arbitrators who hardly stand from the same vantage point in a consumer transaction as your average person. Finally, you have to consider that the repeat business of entities such as the "American Arbitration Association" (the Association that Brian, Angela and Constance are now forced to bring their claims too) is dependent on builders putting these clauses in their contract - this is akin to trying your case to a Judge whose salary is paid by your opposing party. If this idea makes you uncomfortable, it should. Most people would be surprised to know that you have far more protections in place for you when you purchase a vehicle than you do a home. For example, if you want to force a consumer into arbitration when purchasing a vehicle, there are requirements for the size of the lettering of the clause, requirements that contact information be provided for the entity that would be arbitrating the dispute, and a requirement that there must be separate notices given and even signs posted at dealerships to alert consumers to the presence of the arbitration clause. No such requirements exist for consumers making what (for most of them) is the largest consumer purchase of their life.
We decided right away we would fight the enforceability of the clause. Having litigated and briefed these types of issues before (particularly in the area of vehicle purchases) I had hopeful optimism about the ability to have this clause vacated, and to be able to proceed in Court in front of a Jury of average, everyday citizens. It's a basic American right that Brian, Angela and Constance did not give up knowingly. My hopes were bolstered when the Honorable Judge Helmick in Hamilton County Common Pleas Court found the clause unconscionable after the issue was briefed by both sides. However, we were all distraught to learn that the Court of Appeals for the First District overturned Judge Helmick, and now the Oswalds are forced to proceed through the "stacked deck" of Arbitration if they have any hope of getting any relief at all. We are at the beginning stages of that process right now, and I expect arbitration to take place in the spring.
I have interviewed many consumer clients, and I certainly believe I can tell when people are "nitpicking" a builder's job, or simply looking for a windfall in Court. I could tell right away that Brian, Angela and Constance are hardworking, honest people who simply believe you should get what you pay for when you buy something. That is why I chose to help them. Brian, Angela, and Constance did NOT get what they paid for - they got a "lemon" home at a luxury price.
No consumer should be forced into this situation, so BUYER BEWARE, when you are signing a consumer contract for any major purchase, please have it reviewed by an attorney. If the contract forces you into arbitration - don't sign it.
Courtney N. Caparella-Kraemer, Esq.
Caparella-Kraemer & Associates, LLC. 4841-A Rialto Road
West Chester, Ohio 45069
Phone: 513.942.7222
Facsimile: 513.942.6444
Email: Courtney@caparellakraemer.com Website: www.CaparellaKraemer.com