| ICSC Legal Database - Cases | Monday, February 22, 1999 05:01 PM |
| Citation: |
| Assad v. Mendell, 511 So. 2d 682 (Flat App. 1987). |
| Issue: |
| Whether the lender or the attorney for the lender owed a duty to the borrowers to inspect the home and protect |
| their interests such that the borrowers could maintain a negligence action against the lender or lender's |
| Facts: |
| Sellers of home agreed to provide a roof inspection and further provided that they would pay to repair any leaks |
| discovered by the inspection. After a construction company failed to discover any leaks, Purchasers took a |
| mortgage from the lender. When the Purchasers later discovered leaks in the roof, they brought an action |
| against the Sellers alleging fraudulent misrepresentation. Additionally, the Purchasers asserted negligence |
| actions against the construction company and the lender. The trial court dismissed the claims against the |
| Sellers and the lender. This appeal followed. |
| Holding: |
| Affirmed in part, reversed in part and remanded. The Appellate Court held that the claims against the Sellers |
| should not have been dismissed because, based upon the allegations in the complaint, the Purchasers had |
| stated with sufficient particularity all the elements necessary to establish a cause of action for fraud. The Court |
| affirmed the order dismissing the negligence action against the lender. The Court noted that, although a lender's |
| attorney will usually advise the lender against lending money if a home has a leaking roof, or other major |
| damage, the lender's attorney can not be expected to protect the interests of both the lender and the Purchaser, |
| since the interests of the two parties may very well conflict. |
| 00138 - Legal Update - Winter 1987 |
|
