25 June 2010

The Legal Department: Opening Statements

As mentioned in a previous post (you can read it here), due to the trouble we were having with Avida, our lawyer sent a demand letter for breach of contract. Here's what Atty. Stephen sent:

I write in behalf of Sps Earl and Nicole. You have executed a Contract to Sell, whereby you promised to deliver a house and lot... start of last quarter of 2009, i.e. Oct. 1, 2009 to said Spouses.

You have grossly defaulted on such promise, even while your agents promised earlier date of completion of August 2009.

While the Spouses expected to transfer residence on Oct 1, 2009, to save on monthly rentals they were paying at their residence..., they were disgusted that for no justifiable reason you were not able to deliver but that thru email your agents promised a delayed completion date of March 31, 2010.
Again what a frustration for them to find out that the house was not finished by March 31, 2010, and again your agents promised end of April, with apologies.

The Spouses cannot take it anymore. You have to compensate their damage consisting of 7 months rentals, besides their moral and exemplary damages for your wanton breach of the contract, ...plus Atty’s Fees.

Avida's reply dated May 17:

Please allow us to extend our sincerest apologies to your clients, Spouses Earl and Nicole, for the unintentional delay in the turnover of the Property and to accept Avida's heartfelt apologies for any inconvenience this may have caused your clients. We wish to inform you that Avida has addressed the cause of this delay and is now ready to turn-over the Property to the Spouses, subject only to the release of the bank loan proceeds applied for by your clients as payment for the Property.

As a brief background, the delay in the original turn-over date of end of the calendar year 2009 was earlier communicated to the Spouses in January 2010. To compensate for this unintentional delay, Avida consented to your client's request to hold off of likewise delay the release of the proceeds of the bank loan secured by the Spouses, until such time when the Property is ready to be turned over to your clients. The loan proceeds would have served as the payment by your clients for the Property purchased from Avida. In addition, Avida also consented to the extension of the availment of the EGC sales promotion. The EGC sales promotion was an add-on incentive given to buyers that should only be used within the validity period but Avida allowed the extension and shouldered the replacement fees.

We do understand that several communications between Avida and the Spouses have transpired to another extension of the turn over date to April 30, 2010. Rest assured that Avida has addressed the internal issues which caused the delay and is now ready to turn over the Property to the Spouses, subject to the release of the bank loan proceeds for the payment of the purchase price of the Property. Please note also that as per your client's request, the Property has been painted "blue".

Will all due respect and as evidenced by the aforementioned concessions granted by Avida to the Spouses for the unintentional delay in the turn over of the Property, Avida firmly believes that it did not act in bad faith, in a wanton, fraudulent, reckless, oppressive or malevolent manner as to warrant the award of damages as claimed by your clients.

The first paragraphs felt sincere but the rest of it gave me an apoplectic fit - thus negating any happy thoughts I might have had while reading the first few lines.

Avida, you make it sound as if you had been giving us constant updates. And may I please ask how much did you pay for the fees? Did the amount reach into the thousands? Somehow, I highly doubt it. Also, I didn't know you could delay the release of the loan - you just gave me an idea (thanks!)... Oh, and that fourth paragraph - a bit of an overkill.

But I have noticed that Avida does try, really they do - I will say that for them. They come off great at the start but have trouble coming through to the end and their response letter is an example of that. You could say their heart is in the right place, they just need to work on the follow through - which in my opinion is the most important part.


Note: I have only included sections of the letter which I think are important and have omitted those which I have deemed irrelevant to this post.


Maxi said...

I would agree that Avida don't release relevant customer updates unless you force them to do it for you. This is what I requested them to do, pero there still late on providing progress reports. In return, Im the one ending up giving report and updates to Avida since Im always onsite every weekend.

My house is nearing its completion. Avida told me its their fastest house construction in Avida Settings Cavite. I told them they just met their commitment and they might be late by a month to complete it. My computation is from Dec 2009 to June 2010. Its only a manifestation that they can't really hold on to their commitment and they should better change their marketing pitch.

Are they going to pay for your 7 months rental?

Nicole said...

You're absolutely right! By doing it on time, they are just keeping their commitment to their customers.

Fastest construction but still a month late? I've no words left...

Nope, they only paid for 6 months.

Mirasol Aquino said...

Hi! I'm actually in the same boat as Atty. Stephen's clients. I'm based overseas which made it doubly hard for me to do follow ups. I'm so disappointed by how this was handled. I actually never missed any payment and was promised that the property will be turned over by end of February. I'm thinking of taking legal action as well.

Nicole said...

Hi Mirasol,

Oh, that is tough! If you're planning to take legal action, then there's one tip I can give you and that is to not involve relatives or friends to help you out (including fixing up the house). It will just add more problems to an already problematic situation.

Not sure if this will make you feel any better, but with another developer in the same area, it was much worse.

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