Our Rebuttal dated May 28:
This is in response to your letter of reply dated “May 17, 2009” (sic), apologizing for the delay in turning over the property of my clients, Spouses Earl and Nicole... In the same letter, you mentioned that you have granted certain concessions to my client for the delay and thus should be evidence that the award of damages is unwarranted.
Please allow us to argue why these concessions were inadequate to compensate for the inconveniences.
In item #1, the granting of my clients’ request to delay the release of the proceeds of the loan from PSBank, the bank selected by my clients, cannot be deemed as a concession because, as per policy, the bank cannot release the loan amount until the unit is 100% complete. This was not a condition set by my clients. Avida should know this because it accredited the said bank.
As to item #2, it should have been an easy task for Avida to extend and shoulder the replacement fees for the EGC as it was issued by Ayala Malls, which has the same ownership as Avida. In addition, there have been four promised delivery dates – August 2009 (by the sales agent), fourth quarter 2009 (according to the contract), 31 March 2010 (by Ruth G. from Avida Land), and 30 April 2010 (by Ellen S. from Avida Land). My clients do not find it acceptable that there have been four promised delivery dates, none of which were met.
Regarding item #3, the Property being painted “blue” cannot be deemed as a concession. In Annex C and Annex C-1 of the contract, the color of the house has been specified as “blue”. Painting the property a color other than “blue” would have been a breach of contract once again.
We also sent them a formal letter of complaint (the contents of which have been mentioned in previous blog posts that you can read here and here).
Avida's Closing Arguments dated June 9:
Regarding the rectifications requested by your clients on the Unit, please be informed of the following:
1. Avida has already corrected the typographical error in the technical description of the Unit;
2. Completed the repainting of the exterior wall of the Unit with your clients' preferred color (blue);
3. Doors were already adjusted and holes were fixed;
4. Ground floor Toilet & Bath (T & B) - part of the walls on this T & B were not painted since the unpainted portion of said walls is where the preferred tiles of our client will also be installed, in addition to the floor tiles. Your client requested not to install the standard tiles used by Avida for this particular house model.
In your letter, we understand that you have advised your clients to settle this case for a compensation of rentals paid... on the house leased by Spouses pending the turn-over, plus payment of attorney’s fees.
We wish to emphasize that pursuant to the Contract to Sell executed between Avida and your clients, the stated turn-over date of the Unit is last quarter of calendar year 2009. Thus, legally and based on the express provisions of the Contract to Sell, Avida has until the end of December 2009 to turn-over the Unit. In other words, Avida only incurred delay in the turn-over of the Unit beginning January 2010. However; in the interest of fair settlement of this matter, Avida shall shoulder the rental beginning December 2009 until May 2010, ...notwithstanding that delay by Avida has not yet occurred as of December 2009. This amount is the final offer of Avida and shall be effective only until June 18, 2010.
TURN-OVER OF UNIT / RELEASE OF LOAN PROCEEDS
Avida is ready to turn over the unit to your clients by June 18, 2010 subject to the release of the PSBank loan proceeds to pay the purchase price of the Unit. In this regard, Avida respectfully requests that your clients instruct and arrange with PSBank for release of the loan proceeds on June 15, 2010. Please note the release of the loan proceeds is a non-negotiable condition precedent of Avida for the formal turn-over of the Unit. Avida has already complied with all the constructions requests of your client concerning the Unit.
If your client is not able to process and facilitate the release of the loan proceeds by June 15, 2010, Avida shall be constrained, much to our regret, to cancel the Contract to Sell over the Unit for non-performance / breach of your clients’ obligation to pay the purchase price of the Unit.
Uh, Avida, you can't demand a time limit if you yourself can't follow your own deadlines... Just a thought.
In our complaint letter, we never mentioned the color of the house as it was already painted blue as of April 30 (a month ago). It's either you can't keep your facts straight or you're trying to pad your list of "good deeds."
I could argue some more but we are tired. This whole situation has brought about a lot of conflict and ill will - so much so that at one point we actually considered giving up the house. We now just want this to end as quickly as possible so that we can move on to better things - like planning how to decorate!
Sigh. Avida, do you know that all this could have been avoided?
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.