Until recently, when a home seller lied about or failed to disclose something critically wrong with the home you were buying, the go-to law suit was for misrepresentation. In a common sense way, that just seems right. After all, how else would you describe the seller except to say that he misrepresented the condition of the home? I mean, without making the kids cover their ears.

The Wisconsin Supreme Court recently ruled that something called the economic loss doctrine prevents lawsuits for misrepresentation in real estate sales. It’s not exciting stuff, but let me see if I can sum it up the court’s ruling. Basically the ELD (that’s the economic loss doctrine) says that where there’s a deal based on contract, tort-based lawsuits are not permitted for recovery of purely monetary loss. Torts are your standard personal injury type suits. Misrepresentation is a tort.

In the world of lawsuits, tort-based suits and contract-based suits are the two big players, rivals in some ways. The ELD protects contract law’s turf by saying look, if there’s a contract and one side doesn’t deal fairly, you should use contract law to solve the problem, instead of trying to use tort law to sneak around some of the limitations of contract law (no punitive damage, for example). Since real estate transactions are contractual, misrepresentation should be barred by the ELD. So held the court.

So are you out of luck if you’ve been lied to? Well, not entirely. Misrepresentation was popular because it tended to fit the facts in most cases, was easier to prove, and generally was the right tool for the job. But, as anybody who has ever driven a nail with a wrench knows, just because you lose your hammer doesn’t mean you can’t get the job done.

Until the legislature passes a law allowing misrepresentation – it’s in the works – here’s the tools you can use to pound the misrepresenting seller:

  • Breach of contract: You know all of those forms you sign when you buy a home? Those are contracts, and if the seller makes any promises in them that turn out not to be true, you can sue for breach of contract. A suit for breach only entitles you to recover what you actually lost due to the breach. Notably, breach is not a very strong suit to bring if no promise was made (i.e., they just failed to mention the demonic possession), because it is hard to breach a promise you never made. Sure, those contracts require you to disclose major defects, but then you get into an argument about what is major, and so on.
  • False advertising. If the seller makes misrepresentations about the very thing that is wrong, you may be able to pursue false advertising.
  • Theft by Fraud. You were lied to. The lie made you buy. The seller took your money. Now you are spending more money to fix what you were lied to about. Sounds a lot like a misrepresentation case, but it’s called theft by fraud. The trouble here is you actually have to prove the crime of theft to get to a recovery. Usually the facts are a little less egregious than that.

The upshot is you still have ways of getting a remedy if your seller has lied to you or failed to disclose a material defect. The best remedy, however, remains caution. Make sure you have a thorough inspection done. Read the contract carefully. Ask the seller questions. Consult a lawyer. Uncovering a defect before you close is a far better outcome than suing after the fact.

Read More: Home buying after Below: Navigating the Economic Loss Maze

Chris

It’s no secret. Lawyers tend to be a little behind the times. The whole legal culture encourages us to look to the past for guidance on how the future should be. Much of the law we rely on was new over a hundred years ago. You might catch a lawyer referring to such law as “current.”

So, it will come as no surprise that these uber-modern inventions of the last century, computers, are the cause of controversy in the legal profession. Lawyers in the 90′s were still debating whether computers even belonged in a law office, and it’s not hard to still find lawyers who refuse to use them. I recently found myself engaged in a debate among lawyers about whether having two monitors was a good thing. Not where to get a good second one cheap, but ‘what’s the point?’ Even though computers have now “caught on” in the legal profession, the level of ignorance and lack of understanding among lawyers of technical matters is far greater than the general population.

Until fairly recently, this trait among lawyers could be written off as cute. A technophobe attorney could stumble through dictation and fumble with case law books, but still turn out a good brief. And his staff could tease him about it.

But computers in the law is no laughing matter anymore, and that is getting truer every day. A few years ago, I had a client facing 150+ years in prison in another state, because of charges of possession of 8 alleged child pornography photos on his computer in a zip file. If I had approached the case as a technologically ignorant lawyer, I could have none nothing more than shrug and help him into the handcuffs. Instead, I defended the case by making the legal argument that one zip file — a contiguous row of 1′s and 0′s — should result in only one charge, not 8. That reduced the mandatory prison to 19 years. Then, I dissected the Windows Temporary data, comparing the date the files were downloaded to the login information. Turns out the user was “Guest” at the time. Sure, my client could have logged in as “Guest” on his own laptop, but that was the first clue my client didn’t do it. Next, I considered the access and modification attributes on the zip file, and used those dates to establish alibis — times when my client was doing something else and couldn’t have been using his computer. That clinched it. A clear case of SODDI -Some Other Dude Did It.

Technology is now a part of everyone’s life in an amazing number of ways. We have ported our lives onto the internet to such an extent that people spend their time tapping into their phones how they are feeling 140 characters at a time. Businesses keep critical financial records online. Business employees send emails to one another that become an uncensored record of exactly what — and exactly when — people were thinking and feeling. If there’s ever a lawsuit, those emails can be demanded by the opposing side. My divorce investigator has software that a suspicious wife can install on the family computer to see who her husband is chatting with, and he can drop a tiny GPS tracker on his car too.

People live online. Computers record a lot of background data that can be very incriminating — or absolving. It is a rare legal matter today that isn’t impacted in some way by technology, and a lawyer who avoids technology, doesn’t speak that language, isn’t going to be able to represent his clients fully. Make sure to ask your lawyer about how your computer activities fit into your case.

The recent article below tells of a man who tried to get a handgun, but was denied due to a disorderly conduct conviction years earlier. This is a growing issue, not because the law is new — the federal Lautenberg act dates to the late 90′s — but because the level of enforcement by the Justice department is increasing, and the definition of what constitutes a “domestic offense” is growing. So, if you are charged with anything and the word “domestic” is attached to it in any way, pay extra attention to this “collateral consequence,” especially if you are a hunter.

Chris

Court: Wisconsin was right to deny Princeton man a handgun

By TODD RICHMOND
Associated Press Writer

MADISON, Wis. (AP) – The state Justice Department properly denied a handgun permit to a man convicted of attacking his live-in girlfriend, a state appeals court ruled Wednesday.

Joseph E. Koll, Jr., 50, of Princeton, was convicted of disorderly conduct in a plea deal in 1998. Some nine years later, in 2007, Koll tried to buy a handgun. The Justice Department denied his request, citing federal law that bars handgun sales to domestic abusers.

Koll argued the law doesn’t apply in his case because he was convicted of disorderly conduct. The 2nd District Court of Appeals disagreed, ruling a domestic relationship exists whenever an aggressor and victim live together or have lived together.

Koll’s attorney, Alexander Ullenberg, said Koll was disappointed and may appeal to the U.S. Supreme Court. He said Koll has never been in trouble since 1998, but “the Department of Justice just comes down and hammers on him.”

Justice Department spokesman Kevin St. John declined comment.

According to the ruling, Koll attacked his live-in girlfriend in June 1998, slapping her hand and twisting her arm. He snapped the side mirror off her vehicle as she tried to leave.

Koll pleaded no contest to two counts of misdemeanor disorderly conduct, specifically described in the court record as “non-domestic,” as part of a plea deal.

Green Lake County Circuit Judge William M. McMonigal sentenced Koll to 180 days in jail, but stayed that order and gave Koll three years’ probation and ordered him to domestic abuse counseling.

Koll tried to buy a handgun in December 2007. The Justice Department, which runs background checks on handgun purchasers, denied him twice.

The agency’s Division of Law Enforcement Services administrator upheld the denials in January 2008. The administrator concluded Koll’s 1998 convictions involved domestic violence, triggering a 1996 provision in the federal Gun Control Act that bars misdemeanor domestic abusers from owning firearms.

Koll went back to McMonigal. The judge ruled in Koll’s favor in 2008, relying on the non-domestic designation on Koll’s convictions, and said he could have a gun.

The Justice Department appealed, but Koll fought back, saying a domestic relationship had no bearing on his disorderly conduct conviction.

But the appeals court noted the federal gun act defines misdemeanor domestic violence as a misdemeanor committed by a person similar to the victim’s spouse, parent or guardian and Koll admitted he lived with the woman he attacked.

The U.S. Supreme Court, meanwhile, has found interpreting the gun act to apply to domestic abusers only if they’re charged specifically with domestic abuse would negate Congress’ intention to extend gun control laws to misdemeanor domestic abusers.

Presiding Judge Daniel P. Anderson indirectly chastised McMonigal in a concurring opinion, saying McMonigal didn’t have the power to attach a “non-domestic” disclaimer to Koll’s charges.

“Circuit courts are not empowered to label crimes in an attempt to help a party avoid collateral consequences,” Anderson wrote. “The pervasive problem of domestic violence should be well known to every circuit judge who has a criminal calendar.”

McMonigal said Wednesday the gun act changes were “barely dry” in 1998 and there was little case law to guide judges. He agreed to the plea deal Koll struck with Assistant District Attorney Michael O’Rourke because judges typically abide by such deals.

The concept of domestic violence has evolved since 1998, McMonigal said, but “if you look at it in 1998 terms, not 2009 terms, he was being convicted of a crime, he was getting sentenced, he was getting counseling. That’s all a conviction could attempt to achieve.”

He decided to allow Koll a gun in 2008 because his record was clean and he didn’t feel he should go back on the plea deal. He also took issue Wednesday with how the Department of Justice decides gun purchase requests, noting in Koll’s case it relied only on unproven allegations in the criminal complaint rather than his full case file.

“If a police officer goes in and says, ’Yep, this is domestic’ (in the complaint), regardless of the outcome, you’ll never have a gun again,” McMonigal said.

Ullenberg said Koll is seeking to reopen the 1998 case. Koll agreed to plead only after O’Rourke told him the deal would allow him to own a gun, Ullenberg said.

O’Rourke, who has since left the Green Lake County District Attorney’s office, said he didn’t remember Koll’s case. But confusion surrounded the gun act in 1998, he said, and he always told domestic defendants that prosecutors were unsure how the law would affect them.

Patti Seger, executive director of the Wisconsin Coalition Against Domestic Violence, praised the appeals court’s ruling.

She said her organization has heard of many prosecutors, judges and defense attorneys who have changed charges to get around the domestic abuse moniker and its legal consequences. She didn’t have any statistics or other data to back that up, however.

“(The appeals court decision) reaffirms the courts and prosecutors and defense lawyers should not create crimes for the purpose of circumventing some elements of the law,” Seger said.

Everybody needs a will. No really, I’m not just saying that. If you go to the great beyond without leaving some kind of roadmap for the people who are still here, you are creating a mess for them that will only compound their suffering.

And if you are young — and you’re reading a blog so the odds are pretty good on that — it’s easy to think a will is something you can put off. But accidents happen all the time. And young people seem to be getting cancer and other deadly diseases more and more. Depressing I know, but you have to face it. Also, if you’re getting married or facing divorce, now would be a good time to make some estate planning changes.

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Chris

I do a lot of work where there are “victims.” Whether it is a statutory crime victim, a spouse who has been abused, or somebody who wasn’t at fault in a car accident, there are a lot of people out there who get hurt by others. So, I’ve had a chance to think about what it means to be a victim.

Before I get to the controversial part of this post, let me just say this: I have the deepest empathy for those who suffer. No matter whether they suffer at the hands of others, an accident, illness or hunger. I’m too old to still want to change the world, but there you have it.

But here’s an insight about victimization that you may think sounds cold: many victims contribute to their own suffering. I know that sounds like heresy in today’s culture, but hear me out. What gets done to you, you cannot change. But how you react to it is entirely up to you. If you are hit by a car as you cross the street, you are going to feel two things: the pain of being hit by a car and the outrage that the driver was so careless. Both are natural. But I’ve met people who are still feeling that outrage long after the hurt goes away. They just can’t let go of the anger.

In my opinion, if you don’t let go, it’s just another way for you to let the person who hurt you keep hurting you. How do you let go? First, acknowledge and respect what was done to you. If it hurts inside, let it hurt for a time. Second, accept that you cannot change the past, and that no amount of anger or anguish will make the person’s behavior make more sense. Third, make a conscious decision to live your life despite what was done to you. Try to be the person you are on the inside, unaffected by what someone else did to you.

I’m not saying this is easy. It may take time and coaching — and don’t rule out therapy if the pain is deep enough. But if you can take steps to let go of the outrage, you will find yourself returning to happiness. And happiness is the kind of that makes the world — and your life — a better place.