The appellate court in Fricano vs. Bank of America, 2015AP20 (December 23, 2015) held that a bank is liable for damages selling a foreclosure property in an “as is” condition
After acquiring property at a foreclosure sale, the bank learned the property suffered severe water damage. After mold remediation was unsuccessful, the bank had new cabinets, counters, flooring, drywall and paint installed on the first and second floors of the house. Upon completion, the bank’s real estate agent told the bank the repairs were unsatisfactory.
The house was listed for $144,900, and it generated a lot of interest. During an open house that attracted a dozen of prospective buyers, the ultimate buyer was informed of discoloration in the basement that appeared to be mold. While the basement smelled of mustiness, the buyer did not see any mold on the first or second floor of the house. Multiple offers were received, causing the listing agent to ask for everyone’s highest and best offer. The buyer increased her offer to $175,111, which was memorialized in a WB-44 Counter-Offer.
The bank informed the buyer her offer was accepted, provided she sign the bank’s Addendum and a Water Damage, Toxic Mold Environmental Disclosure, Release and Indemnification Agreement (collectively, the “Bank’s Counter-Offer”). The Bank’s Counter-Offer contained disclaimers regarding water damage and mold, and that mold may have been removed or covered in the course of cleaning or repairing of the property. It also stated that the bank did not warrant the property was free of mold.
The Bank’s Counter-Offer also contained the following provision: “Buyer agrees that the purchase price of the Property reflects the agreed upon value of the Property AS IS taking into account the aforementioned disclosures.” It also stated that the bank acquired the property by foreclosure and consequently it had “little or no direct knowledge about the condition of the [p]roperty.”
The buyer asked her real estate agent about the provision regarding bank’s lack of knowledge. The real estate agent told the buyer the language was “very common with foreclosures.” The buyer then signed the Bank’s Counter-Offer, and the bank signed the buyer’s WB-44 Counter-Offer along with the Bank’s Counter-Offer. The buyer then hired a home inspector who told the buyer that it was “obvious the ceilings and walls in the home have been subject to a water leakage event resulting in substantial mold growth.”
At the recommendation of the home inspector, the buyer hired an environmental professional who prepared a proposal to “[s]afely remove or antimicrobial treat and encapsulate water damaged building materials in basement and first floor staircase.” The buyer closed on the property because the environmental professional did not indicate there was any evidence of mold on the first and second floors and, thus, the buyer “believed that there was no mold within any of the livable areas of the home.” Shortly after closing, the buyer sued the bank because she discovered mold “saturated” throughout the house.
The jury returned a verdict in favor of the buyer on her deceptive advertising, Wis. Stat. §100.18(1), claim. The jury awarded her $50,000 in compensatory damages. A violation of Wisconsin unfair trade practices statute entitled the buyer to twice her damages, plus reasonable attorney’s fees and costs.
In reaching its decision, the appellate court extended a holding from a common law fraudulent misrepresentation case to an unfair trade practices case that an “as is” clause is not a complete bar to recovery when the seller makes affirmative representations. The bank was found liable because of the statement that the bank had “little or no direct knowledge about the condition of the [p]roperty” when the bank clearly had more knowledge about the property.
There are two important “take-aways” from the appellate court’s decision. First, banks should review their standard form contracts to remove any clause that provides the bank has no or little knowledge about the condition of the foreclosure it sells. Second, banks should disclose all information it knows about a foreclosure or any other property that it is trying to sell.
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