Given the American obsession with litigation, it’s somewhat amazing that legal experts could not recall a case of a home buyer who may have overpaid suing a real estate agent before Marty Ummel came along.

Legal and real estate experts say that Ummel and her husband, Vernon Ummel, should have done their homework better before purchasing their four-bedroom home in a luxury development outside of San Diego in 2005 for $1.2 million, a price that the Ummels say was as much as $175,000 more than what similar houses in the development sold for.

They contend it was not their fault.

“We hired our agent because he was a real estate professional,” Marty Ummel told TODAY’s Ann Curry on Friday in New York. “He was expected to do his due diligence. And they have a code of ethics where they have to put the buyers first. I think he just wanted to go ahead and make his commission.”

Looking toward retirement, the Ummels sold their home in San Francisco and moved to the San Diego area to be nearer to their children. Marty Ummel, 60, is a fundraiser for California State University; Vernon Ummel, 71, is an administrator at Dominican University.

“We worked hard and to think we’d done that all of our lives, and then for a Realtor not to tell us about the biggest purchase of our lives that there was a house selling for much less,” Marty Ummel said.

Legal experts say that the Ummels’ case may be the first of many as homeowners react to the crash in the housing market that has left many people with mortgages that are greater than the value of their houses.

MSNBC legal analyst Susan Filan told Curry that she doesn’t think the Ummels will prevail in court.

“I don’t think it’s a suit that has merit,” she said. “I think the standard of proof will be that this agent willfully, deliberately and with malicious intent withheld this information. This information that was allegedly withheld is public information. The bank wouldn’t have given them the mortgage in the amount they got if the appraisal didn’t back the house.”

“We feel the appraisal was manipulated,” Marty Ummel responded.

In her lawsuit, which is to go to trial in March, she says that the agent did not meet requests to give them a written appraisal until after the deal had gone through, telling them orally that the value of the house was the $1.2 million they paid for it.

She said the agent was negligent in not telling them about other houses that sold for less, including one three doors away that has a pool and sold for $105,000 less and another that was considerably bigger that sold for $175,000 less.

“You can’t just say, ‘Oh, it’s the same size. It’s the same value.’ What’s the nature of the interior? Maybe it was painted all black,” Filan said. “You can’t just look at little boxes on a map and say that one should be the same value as that one.”

Marty Ummel said that there are just 26 homes in their subdivision and all were constructed by the same builder and all are similar.

“This was a tract home. All of the homes were built at approximately the same time,” she said.

Buyer beware
The defendant in the suit is essentially claiming caveat emptor — let the buyer beware. In a legal brief, the defendant quotes a real estate authority as saying the Ummels “simply didn’t do what is expected of a knowledgeable and sophisticated buyer, and are looking for someone other than themselves to take responsibility.”

“The value of something is what someone’s willing to sell it for and what someone’s willing to pay for it,” Filan said. “Some of those houses may have gone for less than yours because the seller was so motivated, they didn’t want the same amount that your seller did. Maybe they were going through a divorce and wanted to give their spouse less.”

According to The New York Times, the Ummels have already invested $75,000 in their suit. They are asking for $105,000 — the difference between what they paid and what they feel the house was actually worth — plus their legal fees.

Vernon Ummel had no particular desire to pursue the matter, but his wife, who picketed the agent before filing her suit, was insistent. “She’s very tenacious,” he said. “Even though she’s 114 pounds, she’s not to be taken lightly.”

For Marty Ummel, it’s about more than their personal grievance.

“There are other attorneys and Realtors who say we have a good case, we’re trailblazers,” she said. “And I think when all the facts come out, that we have a very good chance of winning, and if not, we want to change the industry. We want disclosure.”

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