Windermere Real Estate Bellevue Commons, and Agent Kenny Pleasant, Sued for Fraud, Fraudulent Concealment, Negligent Misrepresentation, Violation of the Consumer Protection Act, and Breach of Broker Duties, in Complaint Alleging:
"...At the time of the listing, Windermere and Pleasant knew that the seller was required to obtain necessary permits and inspections for the extensive remodel as required by the City Residential Code...
...Approximately one week after the PSA, the City issued a Residential Code Notice of Violation to Stewart (the "NOV"). A copy of the NOV, dated March 21, 2012, is attached hereto as Exhibit A. The NOV states in part: "[THE] RESIDENTIAL CODE WAS VIOLATED BY REMODELING A SINGLE FAMILY RESIDENCE .... WITHOUT PERMITS AND INSPECTIONS...
Shortly after receiving a copy of the NOV, Pleasant telephoned Simpson and asked what would happen if the pending sale went through without the required permits and inspections. Simpson explained to Pleasant that the new owner would be responsible to obtain the permits and make the required corrections. Defendants persisted in concealing the facts of the illegal remodel and resulting NOV from Wubbels, knowing that when she closed, she would be responsible for the expense and consequences of the City Residential Code violations. "
(L to R) Windermere Bellevue Commons associate Kenny Pleasant, who states on his Windermere web page, "I know that buying or selling a home is one of the most important things you will ever do, and I want to help make that experience as smooth and successful as possible," and "Our Innovative Consumer Programs are unparalleled and focus on serving the consumer." Windermere Bellevue Commons owners Courtney Adams, and Amy Adams—whose Windermere web page states, "I strongly believe that everyone should be treated with kindness, fairness, caring, and honesty."
DOWNLOAD A COMPLETE COPY OF THE COMPLAiNT HERE
CLICK TO THE WINDERMERE ANSWER HERE
FOLLOW THE CASE DOCS ON DEMAND:
5/8/2014 Initial Complaint filed: "Defendants persisted in concealing..."
5/13/2014, Demco's Lars E. Neste and Jennifer L. Johnson appear for Windermere Bellevue Commons and Kenny Pleasant.
6/6/2014, Defendants Windermere Bellevue Commons and Kenny Pleasant Answer to Complaint, Affirmative Defenses and Cross Claim for Indemnity: “...but Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant did not know that Defendant Sean Stewart had failed to obtain the necessary permits and inspections until after the NOV was faxed to Defendant Kenny Pleasant.”
6/6/2014, Declaration of Lance C. Dahl in Support of Motion to Approve Service by Mail:. “Between May 9 and May 28, three attempts were made to serve Sean Stewart at his business office during business hours. Mr. Stewart either was absent or declined to come to the reception desk. To date, Mr. Stewart has not responded.” Motion to Serve by Mail; and Order Granting Plaintiff's Motion to Serve by Mail.
6/23/2014, Notice of Appearance: Jordan M. Hecker of Hecker Wakefield & Feilberg, P.S., appears for Sean and Margaret Stewart.
6/27/2014, Stipulated E-Service Agreement.
7/21/2014, Defendants Sean Stewart and Margaret Stewart's Answer, Affirmative Defenses and Counterclaims to Plaintiff's Complaint: "...Stewart denies that the Plaintiff is entitled to any of the relief requested," and "Complaint for Beach of Promissory Note."
7/23/2014, Stewart attachment to Answer: Exhibit A Promissory Note.
8/8/2014, Plaintiff's Reply to Defendants Stewarts' Counterclaim Regarding Promissory Note and Cross Claim Against Defendants Windermere and Pleasant for Indemnity.
8/12/2014, Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant’s Answer and Affirmative Defenses to Defendants Sean Stewart and Margaret Stewart’s Cross-Claims Against Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant.
12/23/2014, Parties Stipulate to Dismissal.
SUPERIOR COURT OF WASHINGTON FOR
KING COUNTY
JESSICA WUBBELS,
Plaintiff,
v.
WINDERMERE REAL ESTATE! BELLEVUE COMMONS, INC., a Washington State corporation; KENNY PLEASANT, individually and his marital community; SEAN STEWART MARGARAET [sic] STEWART, husband and wife,
Defendants.
CAUSE [CASE] No.: 14-2-13149-6 SEA
COMPLAINT FOR FRAUD
Plaintiff alleges as follows:
I. PARTIES AND JURISDICTION
1. Plaintiff. Plaintiff Jessica Wubbels ('Wubbels") resides in Seattle, King County, Washington. Wubbels is the insured under a title insurance policy issued by WFG National Title Insurance Company (WFG). On behalf of Wubbels, as insured, WFG paid the amounts necessary to obtain the required permits, make the required corrections, and obtain the required inspections and approvals as set forth in this complaint. WFG is subrogated to Wubbels claims against Defendants and is entitled to bring this suit in the name of its insured.
2. Defendant Windermere. Defendant Windermere Real Estate/Bellevue Commons, Inc., ('Windermere") is a Washington State corporation whose principal residence and place of business is King County, Washington.
3. Defendant Pleasant. Defendant Kenny Pleasant ("Pleasant") is, on information and belief, a resident of King County. All acts alleged herein by Pleasant were done for the benefit of Kenny Pleasant individually and for the benefit of his marital community.
4. Defendant Stewart. Defendant Sean Stewart ("Stewart") is a resident of King County. All acts alleged herein by Stewart were done for the benefit of Sean Stewart individually and the for the benefit of the marital community comprised of Sean and Margaret Stewart, husband and wife.
5. Jurisdiction and Venue. This court has jurisdiction, and venue is properly in King County.
II. BACKGROUND
6. Wubbels is the owner of a single-family residence commonly known as 5139 South Mead Street, Seattle, Washington (the "House"). Wubbels purchased the House in the spring of 2012 from Defendant Sean Stewart. The purchase price was $460,000. Stewart, a real estate investor, acquired the House in November 2011 for a purchase price of $225,000, and planned to remodel the house and "flip it" to a new owner. Thereafter, Stewart extensively remodeled the House but did not obtain necessary permits and inspections as required by the City of Seattle ("City").
7. In early 2012, Stewart listed the House for sale with Defendant Windermere. The listing broker was Defendant Kenny Pleasant who also become [sic] the selling broker. At the time of the listing, Windermere and Pleasant knew that the seller was required to obtain necessary permits and inspections for the extensive remodel as required by the City Residential Code.
8. On or about March IS, 2012, Wubbels and Stewart signed a Residential Real Estate Purchase and Sale Agreement (the "PSA"). The sale price was $460,000. Pleasant and Windermere represented both the buyer (Wubbels) and the seller (Stewart) in the transaction as dual agent.
9. Approximately one week after the PSA, the City issued a Residential Code Notice of Violation to Stewart (the "NOV"). A copy of the NOV, dated March 21, 2012, is attached hereto as Exhibit A. The NOV states in part:
"[THE] RESIDENTIAL CODE WAS VIOLATED BY
REMODELING A SINGLE FAMILY
RESIDENCE .... WITHOUT PERMITS AND
INSPECTIONS."
10. To correct the violations, the NOV required the Stewart to submit a "complete application" to the City Department of Planning and Development and to:
a) "make all required corrections";
b) "obtain the permit(s)"; and,c) "request and obtain all required inspections and approvals".
11. Victoria Simpson ("Simpson") is an Inspection and Support Analyst at the City Department of Planning and Development ("DPD"). On March 21, 2012, Simpson "faxed" a copy of the NOV to the agent/broker (Pleasant) and to the seller (Stewart). Shortly after receiving a copy of the NOV, Pleasant telephoned Simpson and asked what would happen if the pending sale went through without the required permits and inspections. Simpson explained to Pleasant that the new owner would be responsible to obtain the permits and make the required corrections. Defendants persisted in concealing the facts of the illegal remodel and resulting NOV from Wubbels, knowing that when she closed, she would be responsible for the expense and consequences of the City Residential Code violations.
12. The PSA closed on or about May 8, 2012. On or about June 14,2012, the City served Wubbels, as the new owner, with an AMENDED RESIDENTIAL CODE NOTICE OF VIOLATION (the "Amended NOV"). A copy of the Amended NOV is attached hereto as Exhibit B.
I5. In order to cure the Residential Code violations, Wubbels was required to hire a competent, licensed contractor to obtain required permits and inspections, and perform substantial remedial work. This work was performed by Powell Custom Homes and Renovations ("Powell"). To date, the amount paid to Powell for this work is in excess of $107,182. On or about March 12, 2014, the City issued its "final approval for work originally performed without permits and inspections".
III. CLAIMS
A FIRST CLAIM: FRAUD
14. Plaintiff re-alleges and incorporates the above allegations.
15. The acts and omissions of Defendants constitute civil fraud. As a result of Defendants' acts and omissions, Plaintiff has been damaged in an amount in excess of $107,182.
B. SECOND CLAIM: FRAUDULENT CONCEALMENT
16. Plaintiff re-alleges and incorporates the above allegations.
17. The acts and omissions of Defendants constitute fraudulent concealment. As a result of Defendant's acts and omissions, Plaintiff has been damaged in an amount in excess of $107,182.
C. THIRD CLAIM: NEGLIGENT MISREPRESENTATION
18. Plaintiff re-alleges and incorporates the above allegations.
19. The acts and omissions of Defendants constitute negligent misrepresentation. As a result of Defendants' acts and omissions, Plaintiff has been damaged in an amount in excess of $107,182.
D. FOURTH CLAIM: CONSUMER PROTECTION ACT VIOLATION
20. Plaintiff re-alleges and incorporates the above allegations.
21. The acts and omissions of Defendants were unfair and deceptive in violation of the Washington State Consumer Protection Act, RCW Ch. 19.56. As a direct result of Defendants' acts and omissions, Plaintiff has been damaged in an amount in excess of $107,l82.
22. Defendants' acts and omissions had the capacity to deceive and harm other Washington citizens. The marketing and sale of residential real property affects the public interest.
E. FIFTH CLAIM: BREACH OF BROKER DUTIES
23. Plaintiff re-alleges and incorporates the above statements and allegations.
24. The acts and omissions of Defendants Windermere and Pleasant breached common law and statutory duties of a broker and agent owed to Wubbels under Washington law including, without limitation:
a. The duty to be loyal to the buyer by taking no action that is adverse or detrimental to the buyer's interest in the transaction. RCW l8.86.050(1)(c).
b. The duty to timely disclose to the buyer any conflicts of interest. RCW l8.86.050(1)(b ).
c. The duty to deal honestly and in good faith. RCW l8.86.050(b).
d. The duty to disclose all existing material facts known to the broker and not apparent or readily ascertainable to the buyer. RCW 18.86.030(d)
As a direct result of said Defendants' acts and omissions, Plaintiff has been damaged in an amount in excess of $107.l82.
IV. RELIEF REQUESTED
Plaintiff requests relief as follows:
1. For judgments against Defendants, and each of them, in the amount not less than $107,182 or such greater amount as may be proved at trial;
2. For Plaintiffs reasonable attorney's fees and costs of suit;
3. For treble damages in the amount of $25,000 for each of Defendants' multiple unfair and deceptive acts and practices alleged above, pursuant to RCW 19.86.090; and,
4·. For such other relief as is just and equitable.
DATED this 8TH day of May, 2014.
THE SULLIVAN LAW FIRM
By: ______________________________
Kevin P. Sullivan, WSBA #: 11987
Mina Shahin, WSBA if: 46661
Attorneys for Plaintiff
LAW OFFICES OF LANCE C. DAHL, PLLC
By: ______________________________
Lance C. Dahl, WSBA #7608
Attorney for Plaintiff
Windermere's Answer and "...did not know..." defense:
UNETHICAL REALTOR MISCONDCUT and PROFESSIONAL INCOMPETENCE—Buying homes through agents who have no experience or understanding of industry procedure...
“...but Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant did not know that Defendant Sean Stewart had failed to obtain the necessary permits and inspections until after the NOV was faxed to Defendant Kenny Pleasant.
Admit that Defendant Kenny Pleasant called Victoria Simpson because he did not know what the NOV meant or what was required...”
Windermere Bellevue Commons’ “...did not know...” Answer strategy necessarily forces admission that Windermere agent Kenny Pleasant did not know what the City Notice of Violation (NOV) “...meant or what was required,” despite that Pleasant was acting as a dual agent, allowing Windermere Bellevue Commons to collect commission FROM BOTH PARTIES TO THE SAME TRANSACTION. In another case, the Court has already warned that "DUAL AGENCY IS PERILOUS" and "...Windermere did not advise the Lunsfords that it would present the Thomas offer." in LUNSFORD v. FRALEY
DOWNLOAD A PDF COPY OF THE ANSWER HERE
JUMP TO THE ORIGINAL CASE COMPLAINT HERE
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
JESSICA WUBBELS,
Plaintiff,
v.
WINDERMERE REAL ESTATE/BELLEVUE COMMONS, INC., a Washington State corporation; KENNY PLEASANT, individually and his marital community; SEAN STEWART and MARGARAET [sic] STEWART, husband and wife,
Defendants.
NO. 14-2-13149-6 SEA
DEFENDANTS WINDERMERE REAL ESTATE/BELLEVUE COMMONS, INC. AND KENNY PLEASANT'S ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES AND CROSS CLAIM FOR INDEMNITY
COMES NOW Defendants Windermere Real Estate/Bellevue Commons, Inc., and Kenny Pleasant by and through their attorney, Lars Neste, of Demco Law Firm, P.S., and answers the Plaintiff’s Complaint. Paragraph numbers correspond to those of the Complaint. "Insufficient knowledge" is an abbreviation for "responding Defendants have insufficient knowledge and information upon which to form an answer and therefore denies."
I. ANSWER
1. Insufficient knowledge.
2. Admit.
3. Admit.
4. Insufficient knowledge.
5. Admit.
6. Admit that the Plaintiff purchased the House from Defendant Sean Stewart in the spring of 2012 for $460,000.00. Insufficient knowledge as to whether Defendant Sean Stewart is a real estate investor who planned to remodel the House and "flip it" to a new owner. Admit that Defendant Sean Stewart did not obtain necessary permits and inspections to remodel the House, but Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant did not know that Defendant Sean Stewart had failed to obtain the necessary permits and inspections until after the NOV was faxed to Defendant Kenny Pleasant.
7. Admit that Defendant Sean Stewart listed the House with Defendant Windermere
Real Estate/Bellevue Commons, Inc. Admit that Defendant Kenny Pleasant was the listing and selling broker. Deny remaining allegations.
8. Admit.
9. Admit.
10. Admit that the NOV stated that Defendant Sean Stewart was required to take the measures listed as (a )-( c) in paragraph 10 of Plaintiff s Complaint or in the alternative, "remove any and all work performed without a permit and call building inspector Jeff Krieg (206-694- 5873) for an inspection."
11. Admit the first sentence. Admit that Defendant Kenny Pleasant was faxed the NOV. Admit that Defendant Kenny Pleasant called Victoria Simpson because he did not know what the NOV meant or what was required. Deny the remaining allegations.
12. Admit.
13. Insufficient knowledge, to the extent that a response is required, Defendants deny the allegations.
14. No response is required, to the extent that a response is required, Defendants deny the allegations.
15. Deny.
16. No response is required, to the extent that a response is required, Defendants deny the allegations.
17. Deny.
18. No response is required, to the extent that a response is required, Defendants deny the allegations.
19. Deny.
20. No response is required, to the extent that a response is required, Defendants deny the allegations.
21. Deny.
22. Deny.
23. No response is required, to the extent that a response is required, Defendants deny the allegations.
24. Deny.
II. AFFIRMATIVE DEFENSES
BY WAY OF FURTHER ANSWER AND AFFIRMATIVE DEFENSES, Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant reallege the foregoing and further allege as follows:
1. The Plaintiff had knowledge of the NOV prior to the closing date of May 8, 2012;
2. The Plaintiff failed to conduct a reasonable investigation or inquiry into the NOV despite her knowledge of the same before completing her purchase of the House;
3. The Plaintiffs knowledge of the NOV means that she cannot, as a matter of law, bring the claims asserted against Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant because the NOV was not concealed from her.
4. Waiver and/or estoppel;
5. Contributory negligence and/or comparative fault;
6. Failure to state a claim upon which relief may be granted;
7. Fault of Peter Mahowald;
8. Fault of Defendant Sean Stewart;
9. Spoilation of evidence;
10. RCW 18.86.030(1)(d) and RCW 18.86.030 (2);
11. RCW 64.06.050(2).
III. CROSS-CLAIMS
BY WAY OF CROSS-CLAIMS, Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant further answer's Plaintiff s complaint by way of crossclaims against Defendant Sean Stewart:
A. First Cross-Claim: Contractual Indemnity against Defendant Sean Stewart
1. The facts giving rise to Defendant Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant's cross-claims occurred in King County, Washington. This court has personal and subject matter jurisdiction for these cross-claims and venue is appropriate.
2. Defendant Sean Stewart and Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant executed an Exclusive Listing Agreement dated January 16, 2012 (the "Listing Agreement"), which is attached hereto as Exhibit "I".
3. The Listing Agreement included an indemnity provision whereby Defendant Sean Stewart agreed to indemnify Defendants Windermere Real Estate/Bellevue Commons Inc. and Kenny Pleasant against any claims related to information provided by Defendant Sean Stewart on the Seller Disclosure Statement, commonly known as the Form 17 (the "Form 17"), which is attached hereto as Exhibit "2".
4. Defendant Sean Stewart inaccurately filled out section 4c of the Form 17 with respect to whether the House had been remodeled, and if so, whether permits had been obtained. Defendant Sean Stewart's inaccuracies form the basis of Plaintiffs claims against Defendants Windermere Real Estate/Bellevue Commons Inc. and Kenny Pleasant. As a result, Defendant Sean Stewart must indemnify Defendants Windermere Real Estate/ Bellevue Commons Inc. and Kenny Pleasant from Plaintiffs' claims pursuant to the Listing Agreement, including attorneys' fees and costs.
B. Second Cross-Claim: Indemnity & Contribution against Sean and Margaraet [sic] Stewart
1. Under RCW 4.22.030, Defendants Windermere Real Estate/Bellevue Commons, Inc., Kenny Pleasant and Defendants Sean Stewart and Margaraet [sic] Stewart are jointly and severally liable for Plaintiffs indivisible claim for her alleged injury.
2. Defendants Sean Stewart and Margaraet [sic] Stewart are comparatively liable for the Plaintiffs alleged injury by actively concealing that the NOV had not been resolved prior to May 8,2012 from Defendants Windermere Real Estate/ Bellevue Commons, Inc. and Kenny Pleasant.
3. Pursuant to RCW 4.22.040, Defendants Windermere Real Estate/Bellevue Commons Inc. and Kenny Pleasant are entitled to indemnity & contribution, the amount of which to be determined at trial.
IV. RESERVATION OF RIGHTS
Defendants Windermere Real Estate/Bellevue Commons and Kenny Pleasant expressly reserve their right to plead further answer, affirmative defenses, counterclaims, cross-claims and/or third-party claims, as investigation and discovery may warrant.
V. RELIEF REQUESTED
WHEREFORE Defendants Windermere Real Estate/Bellevue Commons and Kenny Pleasant pray for relief as follows:
1. That the court dismisses Plaintiffs claims, with prejudice, against Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant.
2. A finding that Defendant Sean Stewart must indemnify and hold harmless Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant against the Plaintiff s claims alleged in her Complaint pursuant to the Listing Agreement;
3. Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant are indemnified and entitled to contribution pursuant to RCW 4.22;
4. Defendants Windermere Real Estate/Bellevue Commons, Inc. and Kenny Pleasant be awarded attorney fees and costs as allowed by law and the Listing Agreement; and
5. Such other relief as the court deems equitable and just.
DATED this 6th day of June, 2014
DEMCO LAW FIRM, P.S.
By _________________________________
Lars E. Netste, WSBA #28781
Jennifer L. Johnson, WSBA #45588
Attorneys for Defendants Windermere Real
Estate/ Bellevue Commons, Inc. and Kenny Pleasant
“...State that the so-called loan was initiated and directed by Kenny Pleasant, in order to cause Wubbels to proceed with closing of the sale, for the financial benefit of Pleasant and Stewart. Further state that the "loan" was a sham transaction whereby the $16,000 delivered by Stewart prior to closing was re-delivered to him at closing in the form of sale proceeds...
...Sham transaction concocted by defendant Pleasant and Stewart...” and “...Hence, Pleasant maneuvered Wubbels into a position where she was required to sell her house and move out without any knowledge that Stewart house was defective due to the NOV..." and “...By initiating and directing the "loan", Kenny Pleasant violated statutory and common law duties of an agent and broker owed to Wubbels."
DOWNLOAD A COMPLETE PDF COPY OF THE REPLY HERE
SUPERIOR COURT OF WASHINGTON IN
AND FOR THE COUNTY OF KING
JESSICA WUBBELS,
Plaintiff,
v.
WINDERMERE REAL ESTATE BELLEVUE COMMONS, INC., a Washington State corporation; KENNY PLEASANT, individually and his marital community; and, SEAN STEWART and MARGARET STEWART, husband and wife,
Defendants.
CAUSE No.: 14-2-13149-6 SEA
PLAINTIFF'S REPLY TO DEFENDANTS STEWARTS' COUNTERCLAIM REGARDING PROMISSORY NOTE AND CROSS CLAIM AGAINST DEFENDANTS WINDERMERE AND PLEASANT FOR INDEMNITY
COMES NOW the Plaintiff and for REPLY to the counterclaim alleged by Defendants Stewarts and cross claim against defendants Windermere and Pleasant, admits, denies, and alleges as follows:
I. REPLY TO COUNTERCLAIM [PROMISSORY NOTE]
1.1. In reply to paragraph 3.l, admit and state that Wubbels would not have proceeded with the purchase transaction if the Notice of Violation (NOV) dated March 21, 2012 had been disclosed to purchaser. Both Sean Stewart and the dual agent Kenny Pleasant owed a duty to disclose the NOV to Wubbels and failed to do so.
1.2. In reply to paragraph 3.2, state that on or about April 12, 201.3, Stewart delivered $16,000 to Wubbels to be used as purported "buyer funds" in order to close the purchase transaction. State that the so-called loan was initiated and directed by Kenny Pleasant, in order to cause Wubbels to proceed with dosing of the sale, for the financial benefit of Pleasant and Stewart. Further state that the "loan" was a sham transaction whereby the $16,000 delivered by Stewart prior to closing was re-delivered to him at closing in the form of sale proceeds. Except as stated, the remaining allegations are denied.
1.3. In reply to paragraph 3.3, admit that a correct copy of the document entitled “Promissory Note” is attached.
1.4. In reply to paragraph 3.4, state that the Promissory Note was fraudulently procured and admit that five "payments" were made. Deny the remaining allegations.
1.5. In reply to paragraph .3.5, deny and state that the “loan" was fraudulently procured.
1.6. In reply to paragraph 4.1, no further pleading is required.
1.7. In reply to paragraph 4.2, deny.
II. AFFIRMATIVE DEFENSES
2.1. For affirmative defenses to the counterclaim, Plaintiff alleges:
a. Fraud and misrepresentation,
b. Failure of consideration, and
c. Sham transaction concocted by defendant Pleasant and Stewart,
III. CROSS-CLAIM AGAINST DEFENDANTS WINDERMERE AND PLEASANT FOR IDEMNITY
3.1. The so-called loan was initiated and directed by Kenny Pleasant in order to cause Wubbels to proceed with closing of the Purchase and Sale Agreement (PSA) with defendant Stewart which, unknown to Wubbels, was the subject of a NOV from the City of Seattle. As described below, Wubbels would not have sold her existing house and would not have purchased the Stewart house if the NOV had been disclosed to her.
3.2. Kenny Pleasant was the dual agent for the sale of Wubbels existing house on Lafayette street in Seattle and the purchase of the subject Stewart house on Mead street. The Lafayette PSA is dated March 12, 2012 and the Mead PSA is dated March 13. Due to mortgage financing and payoffs, the two PSA's had to close at the same time. The NOV was issued by the City on March 21. Pleasant received the NOV on the same day but never disclosed it to Wubbels. On March 23, the purchasers under the Lafayette PSA advised Pleasant that they were dissatisfied with the house condition and, on March 30, requested a price reduction of $20,000. If Wubbels had known about the NOV, she would not have consented to any price reduction and the Lafayette PSA would likely have terminated. Instead, while keeping Wubbels in the dark as to the NOV, Pleasant convinced her to accept a $9000 reduction on the Lafayette PSA. On April 6, Pleasant obtained Wubbels signature on an Amendment reducing the Lafayette house price from $319,000 to $309,000. Hence, Pleasant maneuvered Wubbels into a position where she was required to sell her house and move out without any knowledge that Stewart house was defective due to the NOV. During this same time frame, Wubbels learned that she did not have sufficient funds to purchase the Stewart house. In order to cause Wubbels to close on the Stewart house, Pleasant made a plan with the seller for him to deliver $16,000 to Wubbels which would be re-delivered to Stewart at closing as "buyer funds." If the NOV had been disclosed to Wubbels she would have terminated the Mead PSA. By initiating and directing the "loan", Kenny Pleasant violated statutory and common law duties of an agent and broker owed to Wubbels.
3.3. To the extent that Wubbels is liable to Stewart for any amount or cost under the Promissory Note, Pleasant and Windermere are liable to plaintiff for indemnity in the same amount together with the amount of Wubbels attorney fees and cost incurred in the defense of the Stewart counterclaim.
IV. REQUEST FOR RELIEF
4.1. That Stewarts' counterclaim be dismissed with prejudice;
4.2. That Plaintiff have judgment against Defendants Windermere and Pleasant for indemnity in the amount of all costs of defense regarding the Stewart promissory note claim and, in the event of any judgment or set-off in favor of Stewart on such claim, for judgment against Windermere and Pleasant in the same amount; and,
4.3. For such further relief as is just and equitable.
DATED this 8th day of August, 2014 ..
DATED this 8th day of August, 2014.
THE LAW OFFICES OF LANCE C. DAHL
By: _________________________
Lance. C. Dahl, WSBA #: 7608
Attorney for Plaintiff
THE SULLIVAN LAW FIRM
By: __________________________
Kevin P. Sullivan, WSBA #: 11987
Mina Shahin, WSBA #: 46661
Attorneys for Plaintiff
CASE UPDATE: "STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE... said action has been fully compromised."
Windermere Real Estate Bellevue Commons Sued for Unlawful Removal and Exclusion of Plaintiff from the Residence, Negligence, Breach of Statutory Duty, Conversion, and Violation of the Consumer Protection Act
Windermere Bellevue Commons Sales Associate Tony Ferrelli's Alleged Response when Informed of Plaintiff's Missing Personal Property was "Not my problem."
(Left to right) Windermere Bellevue Commons associate Tony Ferrelli, associate Marcus Crane, and Windermere Bellevue Commons owners Courtney Adams, and Amy Adams—whose Windermere web page states, "I strongly believe that everyone should be treated with kindness, fairness, caring, and honesty." But does Ms. Adams' definition of honesty include informing the Bellevue Commons clients of Dick and Cecilia Pelascini about their violation of the consumer protection act? Read about the Pelascini foreclosure rescue ripoff scam here.
DOWNLOAD A COPY OF THE STIPULATED MOTION TO AMEND COMPLAINT, THE FIRST AMENDED COMPLAINT and AGREED ORDER HERE.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
COUNTY OF KING
ALEX RAHIN, an individual,
Plaintiff,
vs.
STERLING SAVINGS BANK, a bank organized under the laws of Washington; WINDERMERE REAL ESTATE / BELLEVUE COMMONS, INC., a Washington corporation; SIKORRA & LANGLOIS CONSTRUCTION, INC., a Washington corporation; REGALL CONSTRUCTION, LLC a Washington Limited Liability Corporation,
Defendants.
NO. 11-2-35973-5 SEA
FIRST AMENDED COMPLAINT
COMES Now Plaintiff Alex Rahin and asserts the following causes of action against the named Defendants:
I. PARTIES
1.1 Alex Rahin. Plaintiff Alex Rahin ("PLAINTIFF") is an individual residing in Pierce County, Washington.
1.2 Sterling Savings Bank. Defendant Sterling Savings Bank ("STERLING") is, upon information and belief, a bank organized under the laws of Washington.
1.3 Windermere Real Estate / Bellevue Commons, Inc. Defendant Windermere Real Estate / Bellevue Commons, Inc. ("WINDERMERE") is, upon information and belief, a Washington corporation.
1.4 Sikorra & Langlois Construction, Inc. Defendant Sikorra & Langlois Construction, Inc. ("SIKORRA") is, upon information and belief, a Washington corporation.
1.5 Regall Construction, LLC Defendant Regall Construction, LLC ("REGALL") is, upon information and belief, a Washington Limitd Liability Corporation.
II. JURISDICTION AND VENUE
2.1 Original jurisdiction is vested in the Superior Court for the State of Washington pursuant to RCW 2.08.010.
2.2 The Superior Court has jurisdiction over the subject matter of and the parties to this action.
2.3 Venue is appropriate in King County Superior Court pursuant to RCW 4.12.025.
III. FACTS
3.1 PLAINTIFF realleges paragraphs 1.1 through 2.3 as if fully set forth herein.
3.2 PLAINTIFF was the former owner of the property located at 1842 Lenore Drive, Tacoma, WA 98406 (“Residence").
3.3 On July 15, 2011, a Trustee Sale for the Residence was held and Defendant STERLING acquired the Residence.
3.4 On July 18, 2011, Tony Ferrelli, representative of defendant WINDERMERE, contacted PLAINTIFF about the sale of the Residence and confirmed that PLAINTIFF was still residing in the Residence with his pregnant wife and three-year old son. On that same day, Mr. Ferrelli sent an email communication to PLAINTIFF that included the RCW 61.24.060 Notice.
3.5 Later that day on July 18, 2011, PLAINTIFF responded to Mr. Ferrelli's email, and stated that he would not be able to move out by August 6, 2011 (19 days following the RCW 61.24.060 Notice) because of his pregnant wife, job commitments, and financial inability to do so.
3.6 On July 19, 2011, Julie Sherwood, representative of STERLING, responded to PLAINTIFF's email. Ms. Sherwood indicated that she would be willing to provide PLAINTIFF additional time to vacate the Residence. However, Ms. Sherwood also indicated that, if necessary, STERLING would take steps to evict PLAINTIFF if he did not vacate in a timely manner.
3.7 No further communications occurred between the parties, and on August 7, 2011 PLAINTIFF and his family began moving their personal property from the Residence to their new apartment. However, the majority of PLAINTIFF's personal property remained in the Residence.
3.8 On August 9, 2011, PLAINTIFF returned to the Residence to discover a notice posted on the door that confirmed that (1) STERLING took possession of the Residence; (2) STERLING changed the locks of the Residence; and (3) PLAINTIFF's personal property was still in the Residence. PLAINTIFF was shocked and could not believe that he ha been locked out of the Residence and had no ability to gain access to his personal property.
3.9 PLAINTIFF never gave STERLING or WINDERMERE any notice that he intended to vacate the Residence and was unaware that STERLING and WINDERMERE intended to forcibly evict him. The notice provided the contact information for Mr. Ferrelli so that PLAINTIFF could retrieve his personal property.
3.10 On August 12, 2011, PLAINTIFF made arrangements with Mr. Crane, representative of WINDERMERE, to meet at the Residence the next day, August 13, 2011, so that PLAINTIFF could have access to his personal property.
3.11 When PLAINTIFF returned to the Residence on August 13, 2011, he discovered that a significant amount of his personal property bad been moved from the home to the detached garage. PLAINTIFF also discovered that workers from REGALL were at the Residence performing numerous construction services. PLAINTIFF did not authorize the movement of the personal property nor did be hire REGALL or any other company to perform construction services. With Mr. Crane present, PLAINTIFF took pictures of his personal property in the garage and arranged to return to the Residence on August 20, 2011 with a moving truck to remove his personal property.
3.12 When PLAINTIFF met with Mr. Crane on August 20, 2011 at the Residence, he discovered that some of his personal property was missing. Oddly, there were no signs of a forced entry into the garage. Mr. Crane contacted Mr. Farrelli to inform him about the missing personal property, and Mr. Farrelli's response was "Not my problem."
3.13 PLAINTIFF discussed the missing personal property with Dustin Dixon, representative of REGALL, about the missing personal property. Mr. Dixon immediately recalled instructing his employees to move PLAINTIFF's personal property. Mr. Dixon told PLAINTIFF that he would inquire whether any of his workers "accidentally" walked off with PLAINTIFF's personal property; however, Mr. Dixon was not able to provide any assistance concerning the whereabouts of PLAINTIFF's missing personal property.
IV. FIRST CAUSE OF ACTION:
UNLAWFUL REMOVAL AND EXCLUSION OF PLAINTIFF FROM THE RESIDENCE
4.1 PLAINTIFF realleges paragraphs 1. 1 through 3.13 as if fully set forth herein.
4.2 STERLING and/or WINDERMERE, as an agent of STERLING, failed to comply with the statutory requirements set forth in RCW 61.24.060(l) and Chapter 59.12 RCW, and unlawfully removed and excluded PLAINTIFF from the Residence.
4.3 Pursuant to RCW 59.18.290(l), PLAINTIFF is entitled to all damages sustained as a result of the unlawful removal and exclusion, together with interest thereon as allowed by law, PLAINTIFF's reasonable attorney fees and costs of this action, and such other relief as the Court finds just and proper.
4.4 STERLING and WINDERMERE are jointly and severally liable for the damages caused to PLAINTIFF.
V. SECOND CAUSE OF ACTION:
NEGLIGENCE
5.1 PLAINTIFF realleges paragraphs 1.1 through 4.4 as if fully set forth herein.
5.2 STERLING, WINDERMERE, and REGALL had a duty to use reasonable care to store and protect PLAINTIFF's personal property.
5.3 STERLING, WINDERMERE, and REGALL breached that duty when they negligently stored PLAINTIFF's personal property.
5.4 PLAINTIFF has been damaged as a result of STERLING, WINDERMERE, and REGALL's negligence in an amount to be proven at trial, but not less than the value of the personal property he lost.
5.5 STERLING, WINDERMERE, and REGALL are jointly and severally liable for the damages caused to PLAINTIFF.
VI. THIRD CAUSE OF ACTION:
BREACH OF THE STATUTORY DUTY
6.1 PLAINTIFF realleges paragraphs 1.1 through 5.5 as if fully set forth herein.
6.2 STERLING and/or WINDERMERE's, as an agent of STERLING, unlawful removal and exclusion of PLAINTIFF from the Residence, created a statutory and equitable duty to use reasonable care to store PLAINTIFF's personal property.
6.3 STERLING and/or WINDERMERE breached their duty when they did not use reasonable care to store PLAINTIFF's personal property.
6.4 STERLING and WINDERMERE are jointly and severally liable for the damages caused to PLAINTIFF.
6.5 PLAINTIFF has been damaged in an amount to be proven at trial, but not less than the value of the personal property he lost, together with interest thereon as allowed by law, PLAINTIFF's reasonable attorney fees and costs of this action, and such other relief as the Court finds just and proper.
VII. FOURTH CAUSE OF ACTION:
CONVERSION
7.1 PLAINTIFF realleges paragraphs 1.1 through 6.5 as if fully set forth herein.
7.2 STERLING, WINDERMERE, and REGALL willfully interfered with PLAINTIFF's personal property.
7.3 STERLING, WINDERMERE, and REGALL acted without lawful justification.
7.4 PLAINTIFF is entitled to possession of his personal property.
7.5 STERLING, WINDERMERE, and REGALL have refused to return PLAINTIFF's missing personal property, and as a result, PLAINTIFF has been deprived of such possession.
7.6 PLAINTIFF has been damaged in an amount to be proven at trial, but not less than the value of the converted personal property at the time of the taking.
7.7 STERLING, WINDERMERE, and REGALL are jointly and severally liable for the damages caused to PLAINTIFF.
VIII. FIFTH CAUSE OF ACTION:
VIOLATION OF THE CONSUMER PROTECTION ACT
8.1 PLAINTIFF realleges paragraphs 1. 1 through 7.7 as if fully set forth herein.
8.2 STERLING and/or WINDERMERE's unlawful acts constitute unfair and deceptive acts or practices in the conduct of a trade or business in violation of RCW 19.86 et seq.
8.3 STERLING and/or WINDERMERE's acts or practices affected or had the potential to affect the public, and the PLAINTIFF was damaged thereby.
8.4 PLAINTIFF has been injured as a direct and proximate result of STERLING and/or WINDERMERE's violations of the Consumer Protection Act, in an amount to be proven at the time of trial, together with interest thereon as allowed by law, PLAINTIFF's reasonable attorney fees and costs of this action, and such other relief as the Court finds just and proper.
IX. PRAYER FOR RELIEF
WHEREFORE, PLAINTIFF prays as follows:
I. For an Order awarding PLAINTIFF judgment against STERLING and WINDERMERE, jointly and severally, for all damages caused by their unlawful removal and exclusion of PLAINTIFF from the Residence;
2. For an Order awarding PLAINTIFF judgment against STERLING, WINDERMERE, and REGALL, jointly and severally, for all damages caused by their negligence;
3. For an Order awarding PLAINTIFF judgment against STERLING, WINDERMERE, and REGALL in an amount to be proven at trial, but not less than the value of the converted personal property at the time of the taking;
4. For judgment against STERLING and/or WINDERMERE for violation of Washington's Consumer Protection Act, in an amount to be proven at trial, together with an award of treble damages, interest, and PLAINTIFF's reasonable attorneys' fees, costs and expenses pursuant to statute;
5. For an award of PLAINTIFF's reasonable attorney fees and expenses incurred in this action;
6. For liquidated prejudgment interest on all amounts claimed; and
7. For such other and ftirther relief as the Court deems appropriate under the circumstances of this case.
DATED this 10 day of January, 2011.
LASHER HOLZAPFEL
SPERRY & EBBERSON, P.L.L.C.
By _______________________________
Sean V. Small, WSBA No. 37018
Attorneys for Plaintiff
DEFENDANT WINDERMERE'S ANSWER TO PLAINTIFF'S COMPLAINT
DOWNLOAD A PDF COPY OF WINDERMERE'S ANSWER HERE
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
No. 11-2-35973-5 SEA
ALEX RAHIN, an individual,
Plaintiff,
v.
STERLING SAVINGS BANK, a bank organized under the laws of Washington; WINDERMERE REAL ESTATE BELLEVUE COMMONS, INC., a Washington corporation; SIKORRA & LANGLOIS CONSTRUCTION, INC., a Washington corporation
Defendants.
DEFENDANT WINDERMERE'S ANSWER TO PLAINTIFF'S COMPLAINT
Defendant Windermere Real Estate/Bellevue Commons, Inc. answers Plaintiff's complaint as follows:
I. ANSWER
1. Paragraph 1. 1 is denied for lack of information.
2. Paragraph 1.2 is denied for lack of information.
3. Paragraph 1.3 is admitted.
4. Paragraph 1.4 is denied for lack of information.
5. Paragraph 2.1 is admitted.
6. Paragraph 2.2 is denied.
7. Paragraph 2.3 is admitted.
8. Paragraph 3.1 does not require a responsive pleading'
9. Paragraph 3.2 is admitted.
10. Paragraph 3.3 is admitted.
11. Paragraph 3.4 is admitted.
12. Paragraph 3.5 is admitted.
13. Paragraph 3.6 is admitted.
14. Paragraph 3.7 is denied.
15. Paragraph 3.8 is denied for lack of information.
16. Paragraph 3.9 is denied.
17. Paragraph 3.10 is admitted.
18. Paragraph 3.11 is denied for lack of information.
19. Paragraph 3.12 denied.
20. Paragraph 3.13 is denied for lack of information.
21. Paragraphs 4.1 through 4.4 are denied.
22. Paragraph 5.1 does not require a responsive pleading from this answering defendant.
23. Paragraphs 5.2 through 5.5 are denied.
24. Paragraph 6.1 does not require a responsive pleading from this answering defendant.
25. Paragraphs 6.2 through 6.5 are denied.
26. Paragraph 7.1 does not require a responsive pleading from this answering defendant.
27. Paragraphs 7.2 through 7.7 are denied.
28. Paragraph 8.1 does not require a responsive pleading from this answering defendant.
29. Paragraphs 8.2 through 8.4 are denied.
II. AFFIRMATIVE DEFENSES
In addition to the foregoing, Answer, this answering Defendant also alleges the following Affirmative Defenses:
1. The injuries and damages, if any, claimed by Plaintiff were proximately caused or contributed to by the fault of the Plaintiff.
2. Plaintiff's injuries and damages, if any, were proximately caused by persons or entities over whom answering, defendant had no control in the form of the codefendant to this action and/or the unknown entities who may have broken into the property.
3. Plaintiff has failed to perfect service of process.
4. This court lacks personal jurisdiction over this answering Defendant.
5. Venue is improper.
6. Plaintiff's complaint fails to state facts sufficient to state a claim upon which relief can be granted.
7. Plaintiff's claim is barred by the doctrines of waiver, laches, accord and satisfaction or estoppel.
III. PRAYER FOR RELIEF
Having fully answered the Plaintiff's complaint, and having alleged certain affirmative defenses, Defendant respectfully requests that the Plaintiff's complaint be dismissed with prejudice and the Defendant awarded to it its costs, reasonable attorneys' fees, and such other and further relief as the court deems just and equitable.
Dated this l8th day of November, 2011
MIX LAW FIRM, PLLC
s/ George A. Mix
George A. Mix, WBSA No. 32864
Attorney for Defendant Windermere Real Estate/
Bellevue Commons, Inc.