"We are committed to: The highest ethical standards. Uncompromising honesty and integrity." —The Windermere Mission Statement "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." —Windermere CEO Geoff Wood's Public Affirmation

________________________________

 

DON'T BUY CONCERT TICKETS OR DONATE TO SEATTLE PRO MUSICA CHORAL GROUP LEARN WHY HERE

 

 

 

Don't be fooled! Commonwealth Land Title Company of Puget Sound is changing its name to "CW Title" as of September 1, 2011: CW Title IS Commonwealth Land Title Company of Puget Sound by another name.

 

Should consumers TRUST CW Title/Commonwealth Land Title Company of Puget Sound?

Jury Finds Windermere's "Affiliated Service" Company, Commonwealth Land Title of Puget Sound, Negligent and Awards Third-Party Plaintiffs $1,190,000.00

(Above left) Don Riley, Windermere Services Company Exec VP, Business Opportunities, is listed as a Governing Person of Commonwealth Land Title Company of Puget Sound, LLC; and is also listed as Manager of Commonwealth Land Title. WTG LLC is listed as a Member of Commonwealth Land Title, and WTG is also listed as a Governing Person of Commonwealth Land Title. Geoffrey P. Wood, Windermere Services Company CEO (above right), is listed as the sole Governing Person of WTG LLC.

"A. Defendants/Third-Party Plaintiffs Shirley and Luin Leishers's Plaintiff Judgment Against Third-Party Defendant Commonwealth Land Title Company of Puget Sound, LLC

Judgment Debtor: Commonwealth Land Title Company of Puget Sound, LLC

Total Judgment Amount: $1,190,000.00"

In Case No. 08-2-34857-1 SEA, Answer, Affirmative Defenses, Counterclaim and Third Party Complaint of Defendants Luin and Shirley Leisher, filed in King County Superior Court on December 11, 2008.

The Third-Party Complaint of Defendants in part states:

"V. THIRD-PARTY COMPLAINT FOR NEGLIGENCE AGAINST COMMONWEALTH LAND TITLE COMPANY OF PUGET SOUND, LLC

 

5.1 Third-Party Plaintiff realleges the allegations set forth above in paragraphs 1.1 through 4.4.

 

5.2 In the event the Court finds that the real estate transaction failed to close in whole or part because of any act or omission of Defendants, any such acts or omissions were the result of the negligence of Commonwealth, the closing and escrow agent for the Defendants and Plaintiffs. Commonwealth is liable for all damages resulting from Commonwealth's negligence in failing to forward the statutory warranty deed to Defendants for signature on October 1, 2008, and for Commonwealth's breach of its duties as closing and escrow agent for Defendants and Plaintiff on October 1, 2008. Defendants' damages include, but are not limited to, that portion of the sale price not retained by sellers.

 

5.3 Equitable indemnity. Commonwealth's negligence has exposed Defendants to litigation by Plaintiff, and Commonwealth is therefore liable to Defendants for their reasonable expenses incurred in this litigation, including attorneys fees."

 

Read the full Third-party Answer and Counterclaim here. Read the original Complaint in the case here. Read the Final Judgment in the case here. Commonwealth filed a Notice of Appeal on January 14, 2011. Defendants/Third-Party Plaintiffs Shirley and Luin Leisher filed a Notice of Cross-Appeal on January 26, 2011.

 

 

 

 

DOWNLOAD THE AMENDED COMPLAINT WITH EXHIBITS HERE

 

 

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

 

MICHAEL P. WHITCOMB

 

Plaintiff,

 

v.

 

BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS

SERVICING LP, a Texas Limited Partnership; NORTHWEST TRUSTEE SERVICES CORPORATION, a Washington Corporation; COMMONWEALTH LAND AND TITLE OF PUGET SOUND, LLC, a Washington Limited Liability Company; FEDERAL HOME LOAN MORTGAGE CORPORATION, a United States Government Sponsored Enterprise

 

Defendants.

 

NO. 11-2-24445-8 SEA

 

AMENDED COMPLAINT FOR DECLARATORY JUDGMENT; TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION; WRONGFUL FORECLOSURE; BREACH OF CONTRACT; QUIET TITLE; VIOLATION OF THE CONSUMER PROTECTION ACT, RCW 19.86, ET. SEQ.

 

(Clerks Action Required)

 

 

            COMES NOW the Plaintiff MICHAEL P. WHITCOMB, by and through his attorneys, RICHARD LLEWELYN JONES, P.S., and for cause of action against the above-named Defendants, hereby alleging as follows:

 

I. PARTIES

 

1.1            Plaintiff.            Plaintiff, MICHAEL P. WHITCOMB, an individual, is the owner of certain real property, situated in King County, Washington, legally described as follows:

 

UNIT 306 OF BARRETT CONDOMINIUMS, A CONDOMINIUM RECORDED IN VOLUME 116 OF CONDOMINIUMS, PAGES 55 THROUGH 59, ACCORDING TO THE DECLARATION THEREOF, RECORDED UNDER KING COUNTY RECORDING NUMBER 9311190389 AND ANY AMENDMENTS THERETO;

 

SITUATE IN THE CITY OF SEATTLE, COUNTY OF KING, STATE OF WASHINGTON.

 

Assessor Parcel Number 054490021000.

 

Commonly known as: 2000 West Barrett Street #306, Seattle, Washington 98199 (hereinafter "the property").

 

1.2            Defendant BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP. BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP is a Texas Limited Partnership and is a wholly-owned subsidiary of Bank of America NA. This Defendant is hereinafter referred to as "BAC."

 

1.3            Defendant NORTHWEST TRUSTEE SERVICES, INC. Northwest Trustee Services, Inc. is a Washington corporation having a registered agent address in Bellevue, Washington. This Defendant is hereinafter referred to as "Northwest Trustee".

 

1.4            Defendant COMMONWEALTH LAND AND TJTLE OF PUGET SOUND. COMMONWEALTH LAND AND TITLE OF PUGET SOUND is a Washington Corporation having a registered agent address in Seattle, Washington. This Defendant is hereinafter referred to as "Commonwealth".

 

1.5            Defendant FEDERAL HOME LOAN MORTGAGE CORPORATION. Defendant FEDERAL HOME LOAN MORTGAGE CORPORATION is a United States Government Sponsored Enterprise. This Defendant is hereinafter referred to as "Freddie Mac".

 

1.6            Doe Defendants 1-10. Doe Defendants 1-10 were at all times mentioned herein, the Defendants, and each of them, were the principals, successors or assigns, agents, servants, representatives and/or employees of each of the remaining Defendants and were acting within the course and scope of such agency or employment. The exact terms and conditions of any succession, assignment, agency, representation or employment relationships are presently unknown to Plaintiff, but when the information is ascertained, leave of court will be sought to insert the appropriate allegations.

 

1.7            No party named herein is a minor, in the military service of the United States, as defined by the Soldier's and Sailor's Relief Act of 1942, as subsequently amended and re-codified under the Service Members Civil Relief Act, or otherwise incompetent.

 

1.8            At all time relevant to this cause of action, the above-named Defendants acted for and on behalf of themselves, each other and, where appropriate, their respective marital communities. Plaintiff asserts claims for civil conspiracy and joint venture liability based upon the facts of this action.

 

II. JURISDICTION AND VENUE

 

2.1            This court has jurisdiction and venue is properly laid with this court because this action involves title to certain real property located in King County, Washington.

 

III. FACTS

 

3.1            Plaintiff executed a Deed of Trust ("Deed of Trust") and Note (the "Note") on October 10, 2006 with Commonwealth as trustee, First Horizon Home Loan Corporation (hereinafter "First Horizon") as lender and beneficiary. The Deed of Trust was recorded in King County under Recordation No, 20061016001967. A true and correct copy of said deed of trust is attached hereto and incorporated herein by this reference as Exhibit "A”. A true and correct copy of said Note is attached hereto and incorporated herein as Exhibit "B”.

 

3.2            First Horizon executed an assignment of all beneficial interest under the Deed of Trust described in Paragraph 3.1 to Countrywide Bank, N.A. in an assignment notarized on December 14, 2006, and recorded on July 13, 2007, under King County Recording No. 20070713000768. A true and correct copy of said assignment is attached here and incorporated herein by reference as Exhibit "C”.

 

3.3            A second assignment purports to again assign the beneficial interest under the Deed of Trust from First Horizon to Countywide Bank, N.A., dated January 24, 2007, notarized on March 6, 2007 and recorded on April 18, 2007 under King County Recording No. 20070418000162. A true and correct copy of said assignment is attached here and incorporated herein by reference as Exhibit “D”.

 

3.4            Attached hereto and incorporated herein by reference as Exhibit "E" is a letter received from Countrywide Home Loans enclosing a "Loan Modification Agreement", both dated September 8, 2008. A true and correct copy of said Modification Agreement signed and dated by Plaintiff on September 16, 2008, is attached hereto and incorporated herein by reference as Exhibit "F”. Plaintiff fully complied with all terms and conditions of said Modification Agreement.

 

3.5            A Notice of Default dated September 24, 2010, was mailed by the servicer of the loan, BAC by Northwest Trustee, its duly authorized agent, to Plaintiff, despite Plaintiffs full compliance with all terns and conditions of the subject Modification Agreement. . A true and correct copy of said Notice of Default is attached hereto and incorporated herein by reference as Exhibit "G”.

 

3.6            An Appointment of Successor Trustee was executed on October 1, 2010, by Jeff Stenman, as Attorney in Fact by Power of Attorney of BAC, appointing Northwest Trustee as successor trustee. A true and correct copy of said Appointment of Successor Trustee is attached hereto and incorporated herein by reference as Exhibit 'W".

 

3.7            A Notice of Trustee Sale dated April 15, 2011, was executed by Winston Khan, in his capacity as Assistant Vice President of Northwest Trustee, and set a sale date for July 22, 2011 and was recorded under King County Auditor's Recording No. 20110415001273. A true and correct copy of said Notice of Trustee Sale is attached hereto and incorporated herein by reference as Exhibit "I”.

 

3.8            A Qualified Written Request was issued to BAC Home Loans Servicing LP dated May 16, 2011. A copy of said Qualified Written Request, with evidence of mailing and receipt by BAC is attached hereto and incorporated herein by reference as Exhibit "J”. A true and correct copy of BAC's response to a Qualified Written Request, dated June 13, 2011, is attached hereto and incorporated herein by reference as Exhibit "K”.

 

3.9            Plaintiffs payment history was provided by the servicer, BAC, via facsimile on June 14, 2011. A true and correct copy of said facsimile of payment history is attached hereto and incorporated by reference as Exhibit "L". Included with this correspondence from BAC was what was purported to be a copy of the original Promissory Note omitted from BAC's response referenced in paragraph 3.8. This document was received from Gretchen Uribe of BAC and is attached hereto and incorporated herein by reference as Exhibit "M". The copy of the subject Promissory Note appears to be a copy of the escrow's version - rather than the original, as is evidenced by the rubber stamp certification on page one by the settlement agent at the closing of the loan referenced in the Deed of Trust. No copy of the current version of the Promissory Note has ever been produced and no proper identification of the holder of the subject Promissory Note has been made.

 

3.10            Plaintiff has fully complied with the provisions of the above-referenced Modification Agreement and all payments agreed to be made were tendered through January 2010. A true and correct copy of payment evidence to BAC is arranged chronologically and are attached here and incorporated herein by reference as Exhibit "N”.

 

IV. DECLARATORY JUDGMENT

 

4.11            BAC is not the holder of the obligation secured by the deed of trust, as defined by RCW 61.24.005, and at no time relevant to this cause of action did BAC have a right to declare a default or appoint a successor trustee.

 

4.12            A controversy exists between Plaintiff and Defendants whether any attempt to non-judicially foreclose the property by BAC is unlawful under Washington law.

 

4.13            Plaintiff will suffer immediate damage and harm if the non-judicial process described herein is not declared unlawful and permanently enjoined.

 

V. WRONGFUL FORECLOSURE

 

5.1            Plaintiff repeats and re-alleges each and every item and allegation above as fully and completely set forth herein.

 

5.2            RCW 61.24.020 requires that only those deeds of trust that "secure the performance of an obligation of the grantor or another to the beneficiary may be foreclosed by trustee is sale." Plaintiff at no time was obligated to perform any obligation to Defendant BAC.

 

5.3            Plaintiff has received no notice of the name and address of the owner of the promissory note as required by 61.24.030(8)(1) as a requisite to sale. Further Plaintiff has reason to believe, and therefore alleges, that Northwest Trustee has failed to comply with RCW 61.24.030(7).

 

5.4            The assignments from First Horizon never assigned any interest in the subject deeds of trust or notes to BAC, but rather to Countrywide Bank NA. No assignments of public record indicate that Countrywide Bank NA ever assigned its interest in the subject deed of trust or note to BAC. In an appointment of successor trustee referenced herein as Exhibit H, BAC warrants and represents that it is the "holder of the obligation" secured by the deed of trust. Upon information and belief, and therefore alleged, Freddie Mac is the holder and owner of the obligation secured by the Deed of Trust - not BAC. On information and belief, BAC is merely a servicer of the loan for an undisclosed principal.

 

5.5            No evidence exists that Northwest Trustee ever attempted to verify the ownership of the obligation or holder of the note, but instead relied on the instructions and assertions of the servicer BAC claiming that it is the owner and holder of the obligation alleged to be the basis of foreclosure. This is a violation of the Trustee's duty of good faith as provided by statute and a violation of federal statutes.

 

5.6            Defendants have thereby violated the provisions of RCW 61.24 in pursuing the sale currently scheduled for July 22, 2011.

 

5.7            Based upon information and belief Defendant BAC has engaged Northwest Trustee to take all actions herein alleged, without proper authority.

 

5.8            Based upon the facts alleged herein the Defendants have engaged in a wrongful foreclosure against the Plaintiff and the sale currently scheduled by BAC and Northwest Trustee should be permanently enjoined.

 

VI. BREACH OF CONTRACT

 

6.1            Plaintiff, in good faith, entered into a modification of the subject Note and Deed of Trust on September 16, 2008. Plaintiff has fully complied with all terms and conditions of the subject Modification Agreement.

 

6.2            Plaintiff regularly questioned the accounting and application of payments made pursuant to the Modification Agreement. Statements submitted to Plaintiff indicated the subject loan to be in default when it was not.

 

6.3            Plaintiff s modified monthly loan payments of $1,352.07 were regularly accepted by BAC from October 2008 until July of 2009, when Plaintiff was notified that his modification had never been approved.

 

6.4            Plaintiff made the first modified loan payment due on October 1, 2008, in accordance with the plain language of the agreement which was dated September 8, 2008, by Countrywide, subsequently executed by Plaintiff and returned on September 16, 2011.

 

6.5            Plaintiff continued to communicate with Countrywide representatives concerning the status of his mortgage, as his statements were still indicating a past due balance, which to Plaintiff's best information and belief, were untrue.

 

6.6            Countrywide merged into BAC, and as of July 2009, mortgage statements previously sent by Countrywide, now were coming from BAC. Plaintiff contacted BAC and was informed that BAC would not honor the modification agreement between Countrywide and Plaintiff, and that to save his home from foreclosure, Plaintiff would now be required to make monthly payments for $2,848.94 in breach of the parties' Modification Agreement, which the Plaintiff nevertheless faithfully continued to pay until he was informed that he would be foreclosed despite his full compliance.

 

6.7            On or about August 2009, Plaintiff was advised by BAC that his payments were not being applied pursuant to the terms of the Modification Agreement and Deed of Trust, but rather to a suspense account, incurring additional late fees, default interest and other fees by BAC.

 

6.8            The acts of the Defendants, and each of them acting on behalf of themselves and each other, as described above, constitute breach of the subject Modification Agreement. As a direct and proximate result of said breach, Plaintiff has been damaged in an amount to be proven at time of trial, including, without limitation, excessive default fees and penalties, compounded by legal costs as a direct result of the breach by BAC.

 

V11.             CAUSE OF ACTION VIOLATION OF CONSUMER PROTECTION ACT

 

7.1            Plaintiff repeats and re-alleges each and every item and allegation above as if fully and completely set forth herein.

 

7.2            Defendants, and each of them acting on behalf of themselves and each other, have violated the Consumer Protection Act, RCW 19.86, et seq., through a course of conduct in executing, recording and relying upon documents that they knew or should have known to be false and that have the capacity to deceive a substantial portion of the public.

 

7.3            In promulgating false and improperly executed documents Defendants are engaged in deceptive acts.

 

7.4            Defendants violated provisions of RCW 61.24. et seq., a per se violation of RCW 19.86, el seq.

 

7.5            Defendants, and each of them acting on behalf of themselves and each other, have produced and caused to be recorded documents conflicting with relevant portions of federal law or where the party lacked actual legal authority to execute said documents.

 

7.6            Defendants, and each of them acting on behalf of themselves and each other, have engaged in these activities as part of a normal course of business and commerce. Such activities are likely to be repeated affecting the people of the State of Washington.

 

7.7            The public interest is negatively impacted by the pattern of conduct engaged in by Defendants as evidenced by the repeated acts and obvious potential for repetition.

 

7.8            The Plaintiff has suffered injury as outlined above and below, in addition the distraction and loss of time to pursue business and personal activities due to the necessity of addressing the wrongful conduct through this and other actions. These injuries are solely the result of the conduct of the Defendants in this action.

 

VIII. ACTION TO QUIET TITLE

 

8.1            Plaintiff repeats and re-alleges each and every item and allegation above as if fully and completely set forth herein.

 

8.2            The Plaintiff is the owner in fee, and is in possession of, the subject real property.

 

8.3            Plaintiff has been in the actual and uninterrupted possession of the property since the dates previously set forth.

 

8.4            Plaintiff’s ownership interest may be subject to other liens, however, for the reasons set forth above the above-named Defendants were not entitled to claim any interest in the subject real property and any assertion of interest by the above-named Defendants, is null and void. Accordingly, Plaintiff’s interest in the subject real property should be quieted against the above-named Defendants and anyone claiming an interest in the subject real property through them.

 

IX. PRAYER FOR RELIEF

 

9.1            That the Court declare the subject Deed of Trust to be void, as a matter of law;

 

9.2            That the Court declare that BAC to be an improper "beneficiary" within the terms of RCW 61.24, et seq.;

 

9.3            That judgment be entered against the above-named Defendants, jointly and severally, for all damages suffered by Plaintiff for Defendants' misconduct, as alleged herein for wrongful foreclosure in an amount to be proven at the time of trial;

 

9.4            That the Court enter and Order permanently enjoining Defendants from conducting any trustee's sale under the deed of trust described in paragraph 3.1;

 

9.5            That judgment be entered against the above-named. Defendants, jointly and severally, for civil conspiracy and joint venture liability, in an amount to be proven at time of trial;

 

9.6            That the misconduct of the above-named Defendants be determined to be unfair and deceptive business practices in violation of RCW 19.86, et seq. and that this Court award all such relief to Plaintiffs as he may be statutorily entitled, including treble damages and an award of taxable costs and attorneys fees;

 

9.7            That Plaintiffs' title to the subject real property be established and quieted in him in fee simple, against any and all claims of the above-named Defendants under the deed of trust in paragraph 3.1, or anyone claiming an interest in the subject real property through them;

 

9.8            That the above-named Defendants, and each of them, be forever barred from having or asserting any right, title, estate, lien, or interest in or to the properties herein described adverse to Plaintiff; and

 

9.9            That the Plaintiff be awarded consequential damages breach of the parties' Modification Agreement, in an amount to be proved at trial;

 

9.10            That the Plaintiff be awarded any statutory damages as may be available at law;

 

9.11            That the Plaintiff have such other and further relief as may be just and equitable.

 

DATED this 3rd day of August, 2011.

RICHARD LLEWELYN JONES, P.S.

 

 

______________________________________

Richard LlewelynJones, WSBA #12904

Attorney for Plaintiff

 

 

DOWNLOAD THE AMENDED COMPLAINT WITH EXHIBITS HERE

 

 

 

________________________________

 

 

Case Update: 11/16/2011 Stipulation and Order of Dismissal with Prejudice of all Claims Against Commonwealth Land Title Company of Puget Sound, LLC

Windermere Real Estate's "Affiliated Service" Company, Commonwealth Land Title Company of Puget Sound, LLC, Sued for Slander of Title and Violation of the Consumer Protection Act

In Case No. 10-2-37317-9 SEA, a Complaint for Declaratory Judgment and Damages, filed in King County Superior Court on October 25, 2010.

The Complaint in part states under:

"II. BACKGROUND FACTS

10. Tyler Homes recently sold a 5-acre property located in Bellevue, Washington (the "Property") to the City of Bellevue. Defendant Commonwealth was the escrow agent for said transaction (the "Property Sale"). Defendant Commonwealth intentionally or negligently placed exceptions on the title report for the Property based on claims made by the other defendants against title to the Property that are not supported by the real property records of King County. Defendant Commonwealth breached its duty under Washington law to properly disburse to Tyler Homes the proceeds of the Property Sale.

11. Defendants Schnabel, Sterling, Banner and Foundation made false claims against the title to the Property, thereby causing damage to Plaintiffs in the amount to be proven at trial.

The Complaint continues in part under:

III. CLAIMS

15. Commonwealth owes Tyler Homes the funds that are the subject of the Agreement, plus Tyler Homes' attorneys' fees, prejudgment interest at 12% and costs. Defendant Columbia should be ordered to disburse to Tyler Homes all of the funds that are the subject of the Agreement.

16. The actions of Defendants Commonwealth, Schnabel, Sterling, Banner and Foundation alleged herein constitute slander of title.

17. The actions of Defendants Commonwealth, Schnabel, Sterling, Banner and Foundation alleged herein constitute violations of the Washington Consumer Protection Act. Consequently plaintiff is entitled to treble damages to a maximum amount of $25,000 plus attorneys fees in an amount to be established after trial.

 

Read the Defendants Schnabel and Sterling Answer and Counterclaim here.

A Notice of Appearance for Commonwealth was filed by Demco attorney Melanie Leary.

Defendant Commonwealth filed an Answer and Affirmative Defenses on February 10, 2011.

 

______________________________________________

 

Commonwealth Land Title of Puget Sound has changed its name to "CW Title" as of September 1, 2011

Commonwealth Land Title of Puget Sound's (AKA "CW Title") AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM STATES "PLAINTIFFS HAVE FAILED TO ACCEPT THIS TENDER"

DOWNLOAD A PDF COPY OF COMMONWEALTH'S AMENDED ANSWER HERE

 

 

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

 

IN AND FOR KING COUNTY

 

 

SHANNON CALVIN O’NEIL, by and through his GUARDIAN AD LITEM, JON GILLIS, and TYLER HOMES CORPORATION,

 

Plaintiffs,

 

v.

 

DENNIS SCHNABEL, CHERIE SCHNABEL, STERLING GRAY INVESTMENTS, LLC, COMMONWEALTH LAND TITLE COMPANY OF PUGET SOUND, LLC, FOUNDATION BANK, BANNER BANK, COLUMBIA BANK and COLUMBIA BANKING SYSTEM, INC.,

 

Defendants.

 

NO. 10-2-37317-9 SEA

 

DEFENDANT COMMONWEALTH LAND TITLE OF PUGET SOUND, LLC’S AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM

 

COMES NOW Defendant Commonwealth Land Title Company of Puget Sound, LLC (“Defendant Commonwealth") by and though its undersigned counsel and hereby answers Plaintiffs’' Complaint by admitting, denying,  and otherwise pleading as set forth below. Any pleadings not specifically admitted we hereby denied.

 

I. JURISDICTION AND VENUE

 

1. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

2. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

 

3. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

4. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

5. Admit.

 

6. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

7. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

8. Defendant Commonwealth lacks sufficient knowledge and information with which to

form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

9. The allegations in this paragraph appear to call for legal conclusions and do not require an answer. Without waving any defenses or responses, and to the extent that an answer is required, Defendant Commonwealth lacks sufficient knowledge to admit or deny the remainder of the allegations contained in this paragraph and, therefore, denies the same.

 

II. BACKGROUND FACTS

 

10. Defendant Commonwealth admits that a 5-acre property was sold to the City of Bellevue recently, which transaction forms the basis of this dispute. The remainder of this paragraph appears to call for a legal conclusion. To the extent a response is required and without waiving any objections,  Defendant Commonwealth denies the remaining allegations contained in this paragraph.

 

11. Defendant Commonwealth lacks sufficient knowledge and information with which to form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

12. This allegation does no appear to call for a response. However, to the extent an answer is required, Defendant Commonwealth denies the allegations made in this paragraph. Defendant Commonwealth further states that the Holdback Agreement speaks for itself.

 

13. The Holdback Agreement speaks for itself.

 

14. This allegation does not appear to call for a response. However, to the extent an answer is required, Defendant Commonwealth lacks sufficient knowledge to admit or deny the remainder of the allegations contained in this paragraph and, therefore denies the same.

 

III. CLAIMS

 

15. The allegations in this paragraph appear to call for a legal conclusion and do not require an answer. Without waiving any defenses or responses, and to the extent that an answer is required, Defendant Commonwealth denies the allegations in this paragraph as alleged against Commonwealth.

 

16. The allegations in this paragraph appear to call for a legal conclusion and do not require an answer. Without waiving any defenses or responses, and to the extent that an answer is required, Defendant Commonwealth lacks sufficient knowledge and information with which to form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

17. The allegations in this paragraph appear to call for a legal conclusion and do not require an answer. Without waiving any defenses or responses, and to the extent that an answer is required, Defendant Commonwealth lacks sufficient knowledge and information with which to form a reasonable belief as to the truth of the allegations contained in this paragraph, and therefore, denies the same.

 

IV. REQUEST FOR RELIEF

 

The Plaintiffs' Request for Relief appears to call for a legal conclusion and thus no response is required. Without waiving any defenses any defenses or responses, and to the extent that an answer is required, Defendant Commonwealth denies the request in its entirety.

 

V. AFFIRMATIVE DEFENSES

 

BY WAY OF FURTHER ANSWER to Plaintiffs’ Complaint and without waiving any allegations previously denied, the below affirmative defenses are asserted in good faith by Defendant Commonwealth. Should discovery reveal that one or more of these affirmative defenses are not applicable, Defendant Commonwealth will withdraw the same.

 

1. Defendant Commonwealth asserts herein all defenses stated in CR 12 (b).

 

2. Plaintiffs’ action should be dismissed in whole or in part because Plaintiffs' alleged damages, if any, resulted from alleged acts or omissions by other persons, parties, and/or entities over whom Defendant Commonwealth had no responsibility or control, including but not limited to the named parties and other parties later identified and/or added to this lawsuit after further discovery.

 

3. Plaintiffs' action should be dismissed in whole or in pan because Plaintiffs' alleged damages, if any, resulted from its own negligence.

 

4. Plaintiffs' action should be dismissed in whole or in part because Plaintiffs may have failed to file a claim within the statutory deadline set forth in the appropriate Statute of the Revised Code of Washington.

 

5. Plaintiffs have failed in whole or in part to mitigate, minimize, or avoid the damages allegedly sustained, and any recovery must be reduced by that amount.

 

6. Pursuant to RCW 4.22.070, the trier of fact must determine the percentage of total fault that is attributable to every party/entity/individual that caused Plaintiffs' alleged damages. To the extent Defendant Commonwealth is found liable for any part of Plaintiffs’ damages, Defendant Commonwealth is entitled to an offset for any and all amounts attributable to the fault of other parties/entities individuals. Furthermore, to the extent Defendant Commonwealth pays, or is found liable in this lawsuit, Defendant Commonwealth  is entitled to contribution and/or indemnification from any third parties, Including but not limited to Dennis Schnabel, Cherie Schnabel, Sterling Gray Investments, LLC, Foundation Bank, and Banner Bank, who may be responsible for Plaintiffs’ damages.

 

7. Plaintiffs have entered into a separate agreement with defendants in this manor to settle the title claims alleged herein. Defendant Commonwealth his complied with the terms of that agreement, and thus the Plaintiffs’ claims should be dismissed.

 

8. Plaintiffs' allegations and causes of action in the Complaint were barred by the Statute of Frauds.

 

9. Plaintiffs' claims should be dismissed in whole or in part because plaintiff’s failed to state a claim upon which relief can be granted upon which relief be granted.

 

10. Plaintiffs’ claims may be barred by the doctrines of Latches, Waiver, Estoppel and/or Accord and Satisfaction.

 

11. Plaintiffs' claims should be dismissed in whole or in part because truth is an absolute bar to recovery for slander.

 

12. Plaintiffs’ claims may be barred or limited or limited by terms of the contract including any resolution mechanisms.

 

13. Plaintiffs' claims should be dismissed, limited or barred by the terms and/or conditions of the Closing Agreement and Escrow Instructions.

 

14. Plaintiffs’ claim against Defendant Commonwealth lack a good faith basis under CR 11.

 

I5. Defendant Commonwealth reserves the right to amend this Answer, to assert additional Affirmative Defenses, cross-claims or counter-claims based upon future discovery in this case. Further, nothing contained in this Answer should be construed as a waiver of any such additional defenses or claims.

 

IV. COUNTERCLAIM AGAINST ALL PLAINTIFFS

(BREACH OF ESCROW INSTRUCTIONS)

 

By way of supplemental answer and as a counterclaim to the Plaintiffs’ complaint, Defendant Commonwealth alleges as follows:

 

1. Plaintiff Tyler Homes Corporation entered into a Closing Agreement and Escrow Instructions for Purchase and Sale Transaction with the City of Bellevue ("Escrow Instructions”) that governed the sale of the 5-acre property referred to by Plaintiffs as the “Property” in Plaintiffs’ Complaint as the "Property' in Plaintiffs’ Complaint for Declaratory Judgment and Damages.

 

2. The Escrow Instructions includes a provision that requires the parties to the Escrow Instructions to pay the closing agent’s attorney’s fees and costs incurred in any legal action arising out of or in connection with the transaction. Defendant Commonwealth was the closing agent for the sale of the "Property." Plaintiff Tyler Homes Corporation and the City of Bellevue were the parties to the Escrow Instructions. Plaintiff Shannon Calvin 0’Neil is the sole shareholder and sole officer of Tyler Homes Corporation and signed the Escrow Instructions on behalf of Tyler Homes Corporation.

 

3. On June 8. 2011, Defendant Commonwealth tendered defense to Plaintiffs and payment of its attorney’s fees and costs incurred in this legal action, which arises out of and in connection with the transaction governed by the Escrow Instructions. Plaintiffs have failed to accept this tender.

 

4. Plaintiffs owe Defendant Commonwealth its attorney’s fees and costs and defense of this present lawsuit. By failing to accept tender, Plaintiffs have breached the Escrow Instructions.

 

5. Defendant Commonwealth has incurred damages as a proximate result of Plaintiffs’ breach of the Escrow Instructions in an amount to be proven at trial.

 

6. Plaintiffs breach is ongoing and unjustified.

 

VI. RELIEF REQUESTED

 

Having answered Plaintiffs’ Complaint and having asserted Affirmative Defenses thereto, Defendant requests that judgment be entered in this matter as follows:

 

1. Dismissal of Plaintiffs' claims against Defendant Commonwealth with prejudice;

 

2. Indemnity and Contribution from other parties;

 

3. All other fees and costs to the extent permitted by law or contract;

 

4. Answering Defendant Commonwealth damages on its counterclaim in an amount to be established at the time of trial, plus interest;

 

5. Injunctive Relief in the form of an order requiring Plaintiffs to perform under the Escrow Instructions by paying Defendant Commonwealth’s attorney’s fees and costs as they accrue;

 

6. Such other relief as the Court deems just and equitable.

 

DATED this 14 day of July, 2011

 

                                                                        SCHEER & ZEHNDER LLP

 

           

                                                                        By _____________________

                                                                        John E. Zehnder, Jr., WSBA No. 29440

                                                                        jzehnder@scheerlaw.com

                                                                        Jonathan Dirk Holt, WSBA No. 28433

                                                                        dholt@scheerlaw.com

                                                                        William Elsinger, WSBA No. 42008

                                                                        welsinger@scheerlaw.com

                                                                        Attorneys for Defendant Commonwealth                                                                                                             Land Title Company of Puget Sound, LLC                               

 

________________________________

 

DEFENDANTS' MOTION TO STAY PROCEEDINGS: "...Moving Parties [Peggy Shambaugh, Bennion & Deville Fine Homes, dba Windermere Real Estate Coachella Valley] Are Under Investigation by The Federal Bureau of Investigation And the United States Attorney As To The Allegations In Plaintiffs' Complaint" READ IT HERE

 

WISE BRANDING BOMBSHELL: Windermere Exclusive Properties Announces Change to Real Living LIFESTYLES. 8-OFFICE SAN DIEGO POWERHOUSE DROPS THE WINDERMERE BRAND. STORY HERE

NEW LITIGATION: Franchiser Windermere Services Company Files Breach Of Contract / Warranty Lawsuit Against Lifestyles Services Corporation DOWNLOAD COMPLAINT WITH EXHIBITS HERE

 

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Windermere Founder John W. Jacobi's Washington Loan Company, Windermere Real Estate S.C.A. Redmond and its Agent Christopher Judd, Sued for Intentional Misrepresentation and Other Claims in Alleged "...unlawful scheme to enrich themselves at the expense of plaintiffs and others..."

Defendants Washington Loan Company and Windermere Real Estate S.C.A. Redmond must be compelled by court to produce discovery.

(Above L to R) The Governing Persons of the Washington Loan Company: Windermere Founder John W. Jacobi is listed as President of the Washington Loan Company; Timothy Wissner, CFO of franchiser Windermere Services Company is listed as the Washington Loan Company Vice President; Kendra Vita, Manager at franchiser Windermere Services Company is listed as Secretary of the Washington Loan Company; franchiser Windermere Services Company General Counsel, attorney Paul S. Drayna—WSBA #26636—is listed as Registered Agent of the Washington Loan Company. The Washington Loan Company's business license states that its registered trade name is Windermere Real Estate / Eastlake. Generic silhouette heads above are from the Windermere web pages of Timothy Wissner, Windermere Real Estate S.C.A. Redmond owners Craig and Rosalie Shriner, and their agent Christopher Judd. As the public truth of Windermere Real Estate continues emerging, more and more Windermere personnel delete their photos and put up generic silhouette heads.

NO. 09-2-46671-8 SEA; COMPLAINT FOR: INTENTIONAL MISREPRESENTATION; QUIET TITLE; BREACH OF WARRANTY; DECLARATORY AND INJUNCTIVE RELIEF; filed in King County Superior Court on December 28, 2009.

Under “I. PARTIES” the Complaint in part states:

2. Christopher Judd (“Judd”) is believed to be a single man residing in King County. At all times material herein, Judd was a licensed real estate agent employed by or working under Windermere Real Estate / SCA, Inc. (“Windermere Real Estate”) a real estate office located in Kirkland, Washington.

3. Windermere Real Estate is a Washington corporation engaged in the business of representing members of the public in purchasing and selling real estate in King County, Washington. Windermere Real Estate employs licensed real estate agents to engage in such services, and either it or its principals act as a broker responsible for oversight and supervision of the sales and purchase related real estate activities of its employees.

4. Washington Loan Company, Inc. (“WLC”) is a Washington corporation owned by or related to Windermere Real Estate or its principals. On information and belief, WLC makes loans to customers and/or real estate salespersons of Windermere Real estate in connection with real estate related transactions.

5. Alison A. Haig (“Trustee Haig”) is a successor trustee under a deed of Trust dated March 29, 2007 recorded under King County Recording No. 20070330002740 (“Deed of Trust”) originally between Judd and WLC. This defendant is included in this action solely in her capacity as trustee.

6. Defendants Judd, Windermere and WLC are hereafter sometimes referred to jointly as “Real Estate Professionals.”

The Complaint in part under “II BACKGROUND” continues:

7. Defendants Judd, Windermere Real estate, and WLC created or participated in an unlawful scheme to enrich themselves at the expense of the plaintiff and others, by permitting and/or facilitating the sale of a residence to Mr. and Mrs. Repass by misrepresentations and omissions of adverse facts known to them but not known to the plaintiffs.

8. Judd is a licensed real estate salesperson. At all times herein, Judd worked for and was supervised by Windermere Real Estate which served as a supervising broker of Judd’s work-related activities. Using funds and/or credit of Windermere Real Estate and related party WLC, Judd purchased residential properties for his own account for resale.

9. In April 2004, Judd purchased a residential property located at 8812 Golden Gardens Drive N.W. (“Golden Gardens House”) for $475,000. Shortly after the purchase, Judd encumbered the property with several mortgages. In late 2005 or early 2006, WLC loaned Judd $400,000. Some months later, WLC and Judd agreed to record a deed of trust on the heavily encumbered Golden Gardens house purportedly to secure the antecedent debt.

10. On information and belief, the WLC loan to Judd was guaranteed by Windermere Real Estate or one of its principal owners.

11. In April 2006, and after the defendants completed the loan in connection with the above transactions, Judd purchased the Kirkland Property which is the subject of this action in Kirkland, Washington. Judd encumbered that property with mortgages exceeding the value of the Kirkland Property.

12. Thereafter, on March 30, 2007, Judd and WLC executed another deed of trust purportedly using the Kirkland Property to secure the same previous antecedent loans involving the Real Estate Professionals in 2005 or early 2006.  This deed of trust is dated March 29, 2007 and recorded under King County Recording No. 20070330002740 (“Deed of Trust”). The amount of this encumbrance exceeded  the value of the Kirkland Property by several hundred thousand dollars.  The defendant Real Estate Professionals, Judd, Windermere Real Estate and WLC were aware that this Deed of Trust was worthless to secure the prior debt and that it was inferior to all prior encumbrances for which the aggregate indebtedness already exceeded the value of the Kirkland Property.

13. In February 2008, prior secured lenders on the Kirkland Property initiated foreclosure proceedings. The defendant Real Estate Professionals were each aware of these proceedings and were aware that a result of the foreclosure proceedings would be the extinguishment of their junior deed of trust.

14. Judd and Windermere Real Estate undertook to sell the Kirkland Property before the foreclosure. Windermere Real Estate (or its affiliate office) was the listing broker. When the Kirkland Property was listed for sale, the total encumbrances against it exceeded the value of the property by several hundred thousand dollars. Defendants and each of them (excluding the Trustee Haig) knew that if the Deed of Trust between them was disclosed to a purchaser, the Kirkland Property could not be sold.

15. At no time did any of the defendant Real Estate Professionals disclose the existence of the Deed of Trust to plaintiffs. However, prior to closing, Mr. Repass discovered the subject Deed of Trust of record. He objected to it. Defendant Judd and other representatives of Windermere Real Estate assured him that the Deed of Trust would be eliminated from title before closing and placed on another property. Mr. Repass relied upon this representation. Subsequently, plaintiffs were provided a title report prior to closing which did not disclose the subject Deed of Trust and they assumed that defendants had eliminated the Deed of Trust from title as had been represented would be done. In fact, the Real estate Professionals became aware that the title report omitted the Deed of Trust by mistake. With knowledge of this material mistake, defendants intentionally remained silent and deliberately refrained from removing the Deed of Trust from the title to the property as promised. Plaintiffs were unaware of the mistake and in good faith relied at their substantial detriment upon defendants to do what was promised — remove the deed of trust from title before closing.

16. The Real Estate Professional Defendants’ purpose in remaining  silent in the face of adverse material facts affecting the transaction was purposeful and intended to serve their own interest at the expense of others. The defendants’ silence was intended to allow: (1) defendants Judd and/or Windermere Real estate to receive substantial commissions on a sale which would not have otherwise occurred; (2) to give an otherwise worthless and questionable Deed of Trust value and priority on the property of innocent persons; (3) to avoid personal guaranty obligations owed by Windermere Real Estate or its principal; (4) defendant Judd to totally avoid any personal obligations on his loan; and (5) to attempt to secure an involuntary payment by other innocent persons through foreclosure of the Deed of Trust who were never a party to the defendants’ transactions. Defendants’ intentional silence continued through the closing of the Kirkland Property and the purchase by the plaintiffs. Shortly thereafter, within hours of closing, the defendants’ representatives demanded payment for the Judd loan as a condition of removing their Deed of Trust against plaintiffs’ property.

17. Contemporaneous with the plaintiffs’ closing, WLC and Windermere Real Estate restructured the original loan transaction with defendant Judd so that WLC could avoid accountability for its participation in the surrounding circumstances and so that Windermere Real Estate and/or its principals could avoid preexisting guaranty obligations of the antecedent debt and attempt to wrongfully realize payment against plaintiffs’ property. The restructuring was consummated by an assignment of the Deed of Trust by WLC to Windermere Real Estate but the assignment was not recorded until weeks after the plaintiffs’ transaction closed.

18. Within two weeks of the closing of the plaintiffs’ transaction, defendant Judd sold his Golden Gardens home, which also had a Deed of Trust against it purportedly securing the same loan obligations between Judd and WLC, guaranteed by Windermere Real Estate. Defendants released and reconveyed the Deed of Trust on the Golden Gardens home for the same underlying obligations in connection with that sale transaction in return for receipt of a fraction of the amount of Judd’s underlying obligation.

19. Based upon the foregoing allegation, plaintiffs assert the following causes of action:

The Complaint continues in part:

III. FIRST CAUSE OF ACTION
(AGAINST ALL REAL ESTATE PROFESSIONAL DEFENDANTS)

INTENTIONAL MISREPRESENTATION

20. The Real Estate Professionals, individually and collectively, knew the Deed of Trust remained on the Kirkland Property at the time the plaintiffs purchased the Kirkland Property.

22. The Real Estate Professionals, individually and collectively, knew plaintiffs were acting under a mistake as to the removal of the Deed of Trust on the Kirkland Property. On information and belief, each Real Estate Professional defendant was aware that (1) this Deed of Trust had not been removed from the title to the Kirkland Property; (2) the title report had mistakenly omitted disclosure of the Deed of Trust; and (3) Mr. and Mrs. Repass would not consummate the purchase of the Kirkland Property unless the Deed of Trust was first removed from the title.

23. The Real Estate Professionals failed to inform the plaintiffs of the fact that the Deed of Trust remained on the Kirkland Property for the unlawful purposes of (1) fraudulently inducing the purchase and sale of the Kirkland Property to plaintiffs, (2) effecting commissions on the sale of Judd and Windermere Real Estate, (3) avoiding Windermere Real Estate’s personal guaranty obligation, and (4) ensuring priority of payment to Washington Loan Company on the $400,000 Deed of Trust to which it would not have otherwise received.

24. The knowing and intentional failure of the Real Estate Professionals to disclose the existence of the Deed of Trust resulted in a material impairment of the value of the Kirkland Property and a material impairment to Mr. and Mrs. Repass.

25. Under the circumstances, each of the Real Estate Professionals acted in concert to save their own interest at the expense of plaintiffs and are liable for all damage and loss proximately caused therefrom.

IV. SECOND CAUSE OF ACTION
QUIET TITLE

27. Based upon the foregoing and the conduct of the Real Estate Professionals, plaintiffs are entitled to have title to their property quieted, free and clear of the Deed of Trust recorded under King County Recording No. 20070330002740.

28. This Deed of Trust is of doubtful validity and is additionally, unenforceable under the circumstances.

29. Defendants always intended to remove the Deed of Trust prior to the sale of the Kirkland Property because it had no priority or value against the subject property. Defendants’ inequitable conduct in connection with this transaction effected an equitable forfeiture of foreclosure of the Deed of Trust as a result of their silence in failing to disclose to plaintiffs the continued encumbrance of the Deed of Trust in the face of a known mistake and knowing reliance by plaintiffs that it had been removed.

V. THIRD CAUSE OF ACTION
(AGAINST JUDD)
BREACH OF WARRANTY

31. Judd conveyed the subject property to plaintiffs free and clear by a Statutory Warranty Deed filed under King County Recording No. 20080327002203. Judd’s conveyance of the property free and clear by Statutory Warranty Deed to plaintiffs in the face of the Deed of Trust constitutes a breach of his warranty obligations of title under the Statutory Warranty Deed for which the plaintiffs are entitled to resulting monetary damages and attorney fees and costs, in an amount to be proven at trial.

VI. FOURTH CAUSE OF ACTION
(AGAINST ALL DEFENDANTS)
DECLARATORY RELIEF

33. PURSUANT TO RCW 7.24.010 et seq., plaintiffs are entitled to a judgment of declaratory relief decreeing that the subject Deed of Trust is of no force and effect against plaintiffs’ property and/or that the subject Deed of Trust was equitably foreclosed as a result of the actions and conduct of the Real estate Professional defendants.

VII. FIFTH CAUSE OF ACTION
(AGAINST WINDERMERE REAL ESTATE AND TRUSTEE HAIG)
INJUNCTIVE RELIEF

35. Plaintiffs would be irreparably and wrongfully harmed by any action undertaken to foreclose the subject Deed of Trust under the surrounding circumstances.

36. Plaintiffs are entitled to a preliminary and permanent injunction restraining defendant Windermere Real Estate as assignee of the subject Deed of Trust and Trustee Haig, from undertaking any action to foreclose the Deed of Trust or adversely effect the title to plaintiffs’ property or their right to peaceful enjoyment thereof.

WHEREFORE, plaintiffs pray for judgment against defendants as follows:

1. Quiet title. A decree quieting title in their property free and clear of that Deed of Trust dated March 29, 2007 and recorded under King County Recording No. 20070330002740;

2. Misrepresentation. Judgment jointly and severally against the Real Estate Professionals (Judd, Windermere Real Estate and WLC) for all damages resulting from their intentional and material misrepresentations and unlawful acts;

3. Breach of Warranty. For monetary damages in an amount to be proven at trial against defendant Judd for breach of his warranty of title under the Statutory Warranty Deed dated March 19, 2008 and recorded under King County Recording No. 20080327002203, including attorneys’ fees;

4. Declaratory Relief. Declaratory judgment declaring and decreeing that the Deed of Trust, filed under King County Recording No. 20070330002740, no force or effect against plaintiffs’ property; or in the alternative, that the subject Deed of Trust was equitably forfeited or foreclosed as a result of the wrongful conduct of defendants.

5. Injunctive Relief. For preliminary and permanent  injunctive relief restraining defendant Windermere Real estate and Trustee Haig or any successor trustee from taking any action to foreclose or adversely affect plaintiffs property in any way related to the subject Deed of Trust.

6. Attorneys’ Fees and Costs. For judgment of reasonable attorneys’ fees and costs against defendants in an amount to be proven at trial or by separate hearing thereafter.

THE WINDERMERE DEFENDANTS DO NOT ANSWER:

On March 15, 2010, Plaintiffs Repass filed a MOTION AND DECLARATION FOR ORDER OF DEFAULT, stating in part under:

 “I. RELIEF REQUESTED

Plaintiffs move the Court for an order of default against the defendants because they have failed to appear, plead or otherwise defend against the plaintiffs’ Complaint.”

WINDERMERE REAL ESTATE S.C.A. REDMOND FINALLY ANSWERS:

In its Answer and Affirmative Defenses of Defendant Windermere Real Estate/S.C.A., Inc., filed on March 22, 20110, Windermere S.C.A. states in part under:

1. ANSWER TO COMPLAINT

2. Insufficient knowledge as to first sentence. Deny that Judd was employed by Windermere. Admit that Judd was a real estate salesperson licensed with Windermere. Deny all remaining allegations.

8. Insufficient knowledge as to first sentence. Admit that Judd was formerly a licensed real estate salesperson with Windermere. Deny all remaining allegations.

Editorial notes:

1. To escape liability, Windermere’s latest defense strategy is to state that agents of Windermere are NOT agents of Windermere; and instead it now portrays Windermere agents as “independent contractors” and agents “licensed to…” Windermere.  As in the recent DeCoursey v. Paul Stickney/Windermere S.C.A. conflict of interest case where the Washington State Appeals Court recently upheld the trial court’s verdict and award in excess of $1,000,000, agent Paul Stickney was presented at trial as NOT BEING an agent of Windermere S.C.A., why the court did not buy. Indeed, even Windermere’s own website refers to its agents as being “agents.”

2. At this writing, despite Windermere S.C.A.'s assertion that Judd was "formerly" with Windermere, Judd is still listed as an agent at Windermere S.C.A. Redmond, selling homes with Windermere S.C.A. Redmond agent Lynn Sanborn.

Under “II. AFFIRMATIVE DEFENSES,” Windermere’s Answer in part continues:

2. WLC and Windermere are unrelated entities.

WINDERMERE FOUNDER JOHN W. JACOBI’S WASHINGTON LOAN COMPANY FINALLY ANSWERS

In its Answer and Affirmative Defenses of Defendant Washington Loan Company, Inc., filed on March 22, 20110, the Washington Loan Company states in part under:

II. AFFIRMATIVE DEFENSES

2. WLC and Windermere Real Estate/S.C.A., Inc. are unrelated entities;

3. WLC is no longer in any way related to the loans to Judd or the security interests supporting those loans. WLC conveyed its interests to Windermere Real estate/S.C.A., Inc. in March, 2008 for adequate consideration. As such, WLC is improperly named as a defendant in this matter.

An ORDER OF DEFAULT RE DEFENDANT CHRISTOPHER JUDD is filed on March 29, 2010

WINDERMERE S.C.A. AND WASHINGTON LOAN COMPANY REFUSE TO PROVIDE DISCOVERY

A MOTION TO COMPEL DISCOVERY FROM WASHINGTON LOAN COMPANY, INC. AND WINDERMERE REAL ESTATE/S.C.A., INC. is filed on August 19, 2010, by Plaintiffs Repass, stating in part under:

RELIEF REQUESTED

Pursuant to CR 37(a)(2) and (4) of the Civil Rules for Superior Court and LR 37, plaintiffs move for order compelling responses to discovery and for terms against both defendants, Windermere Real Estate/S.C.A., Inc. (“Windermere Realty”) and Washington Loan Company (“WLC”). Separate sets of discovery were served upon counsel for both defendants several months ago. To date, responses have not been provided after several extensions and accommodations. Specifically, the following deficiencies exist:

1. Plaintiffs’ First Set of Interrogatories and Requests for Production of Documents to Windermere Real Estate/S.C.A., Inc. No written responses to interrogatories or requests for production have been provided. What documents have been produced do not allow anyone to determine what, if any, requests for production they are intended to relate.

2. Plaintiffs’ First Set of Interrogatories and Requests for Production of Documents to Washington Loan Company, Inc.

a. No responses to any requests for production;

b. No signed verification as provided.

FACTS

The same attorneys represent both Windermere Realty and WLC. Separate sets of the above discussed discovery were served upon counsel, Lars Neste and David Daniel of the Demco Law Firm, P.S. via U.S. Mail on April 22, 2010. Responses to both sets of discovery were due May 27. No responses were received. On June 1, a CR 37 conference was held with the defendants’ attorney regarding both sets of discovery. By email on June 15, attorney Daniel provided responses to WLC related interrogatories.  Documents from WLC were promised shortly; they have never been provided. Responses to the Windermere Realty discovery were not provided, but were promised the following week. Although some documents were produced by Windermere Realty, no written response to the Windermere Realty discovery has ever been provided and what documents were provided were not identified as responsive to any particular request or interrogatory. Consequently, plaintiffs cannot determine whether compliance  has been made to any Windermere Realty request for production.  CR 34(b) requires documents produced to be organized and labeled to correspond with categories produced, which was not done either.

On August 31, 2010, the court filed an ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM WASHINGTON LOAN COMPANY, INC. AND WINDERMERE REAL ESTATE/S.C.A., INC.

 

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Franchiser Windermere Services Company’s False Public Statements and Representations of Wyoming Market Coverage: There Aren't Really Any Windermere Offices IN Wyoming

(Above) Windermere's current state offices artwork appearing on its website includes "WY" as of 12/21/2010.

To look at Windermere website pages and sales promotion, RE consumers, the public and Windermere franchisees would think that Windermere Real Estate provides offices and market coverage in Wyoming State, but there aren't any more Windermere offices IN Wyoming. WindermereWatch recently reported that one-time Windermere franchisee Julie Bryan turned the last lights out on the former Jackson and Teton Valley Windermere offices and joined Jackson Hole Real Estate Associates as of November 1, 2010, leaving Wyoming vacant of any Windermere offices at all. Additionally, all the windermere.com website promotion continues to state in its page footers and various other locations that Windermere offices still serve Wyoming.

 

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21 Former Windermere California Offices Drop the Windermere Brand

(1) Former Windermere Real Estate Bay Area, Berkeley, CA, office has become a Keller Williams Realty office.

(2, 3, 4 and 5) Former Windermere Real Estate Welcome Home, with locations in Castro Valley, Livermore, Pleasanton, and San Ramon, CA, have all become Prudential Real Estate Affiliates.

(6) Former proprietor of Windermere Silicon Valley Properties, Mountain View, CA, has moved to The Sereno Group.

(7) Windermere North State Properties, Redding, CA, has gone out of business.

(8 and 9) Former Windermere Dunnigan Realtors of Sacramento, CA, with locations in American River and Land Park has become Dunnigan Realtors.

(10 and 11) Former Windermere Pacific Coast Properties, CA, with locations in La Mesa and San Diego have joined the Sotheby’s International Realty Network.

(12) Former Windermere Property Professionals of Tracy, CA, have become RE/MAX Property Professionals.

(13) Former Windermere Placer County Properties of Auburn, CA, has become Gold Country Realty.

(14 and 15) The former Carlsbad Village Windermere Exclusive Properties has become Real Living Lifestyles Carlsbad Village; and the former Carlsbad Village Faire Windermere Exclusive Properties has become Real Living Lifestyles Carsbad Faire.

(16) Former Windermere Exclusive Properties Escondido has become Real Living Lifestyles Real Estate, Escondido.

(17) Former Windermere Exclusive Properties La Costa / Encinitas has become Real Living Lifestyles La Costa / Encinitas Real Estate.

(18) Former Windermere Exclusive Properties Rancho Bernardo has become Real Living Lifestyles Rancho Bernardo Real Estate.

(19) The former Windermere Exclusive Properties Rancho Santa Fe has become Real Living Lifestyles Rancho Santa Fe / Fairbanks Ranch Real Estate.

(20) Former Windermere Exclusive Properties San Diego — Carmel Valley / La Jolla has become Real Living Lifestyles Carmel Valley Real Estate.

(21) The Former Windermere Exclusive Properties Solana Beach has become Real Living Lifestyles Solana Beach Real Estate.

 

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4 Realty Partners Offices in Oregon and 1 in Washington Drop the Windermere Brand:

Better Homes and Gardens Real Estate Adds Former Windermere Realty Partners to its Franchise Network

From the online report of Realogy Franchise Group Press Releases:

"PARSIPPANY, N.J. 12-14-2010 — Better Homes and Gardens Real Estate LLC today announced that Clackamas-based Realty Partners, Inc., has joined its franchise network, adding a brand presence in the state of Oregon.  The brokerage will now operate as Better Homes and Gardens Real Estate Realty Partners, serving the Portland metropolitan area and surrounding communities, including Canby, Molalla and Vancouver, Washington.  The company's co-owners, John Tate and Eric Post, bring a partnership-oriented culture and 100 sales associates across five offices to the Better Homes and Gardens® Real Estate network. 

"Eric and John founded their business on perhaps one of the best mission statements I have ever read," recalls Sherry Chris, president and CEO of Better Homes and Gardens Real Estate LLC.  "It simply says; Serve our clients with distinction, grow our businesses with passion and live our lives with balance."  "When you begin with that foundation, you are well on your way to epitomizing the 'next generation broker' who leverages the best social and digital media tools to have a dialogue with employees and clients alike."

"By affiliating with Better Homes and Gardens® Real Estate, we're taking the next logical step in communicating to our clients that we are committed to being a complete lifestyle service provider," said Tate.  "Our agents and clients are more informed and tech-savvy than ever before.  The incredible tools and support provided by Better Homes and Gardens Real Estate will help us to better anticipate the agents' needs and to continue raising the bar for service in our industry."

"This is much more than a name change," said Post. "It's a declaration of our commitment to customer service. This affiliation reinforces our dedication to delivering what consumers need right now – a trusted, loyal advisor who has the ability to change with the market and technology tides.  "From a corporate standpoint, our goal to create a supportive, successful, collaborative and focused organization can be fully realized with our partnership with Better Homes and Gardens Real Estate."

Established in 2005 Realty Partners' past achievements include being named one of Oregon's "100 Best Companies to Work For" by Oregon Business magazine with high scores for benefits, attraction and retention; work environment; charity/community work; collaboration, trust and openness; rewards and, incentives; and career development.

Realty Partners takes its corporate responsibility very seriously and has been commended for its citizenship efforts and active involvement with numerous community and charitable organizations, including: Parrott Creek Child and Family Services, Habitat for Humanity, Oregon Food Bank, North Clackamas School District, The Canby Center, and the Molalla Buckeroo Association. 

For more information on the Better Homes and Gardens Real Estate Realty Partners, please visit BHGRealtyPartners.com."

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Former Windermere Pacific Coast Properties of San Diego, California, Joins Sotheby's International Realty Network

From the online report of Realogy Franchise Group Press Releases:

"PARSIPPANY, N.J., 11-22-2010 — Sotheby's International Realty Affiliates LLC announced that Pacific Sotheby's International Realty in San Diego is the newest member of its luxury real estate network. The firm, owned by Brian Arrington, serves San Diego County.

“San Diego is an international community, both economically and from a lifestyle point of view,” said Philip White, president and chief operating officer, Sotheby’s International Realty Affiliates LLC. “Brian Arrington and his team of professionals truly understand this market, which is a critical one for the Sotheby’s International Realty brand, and we are proud to have them represent us here.”

Pacific Sotheby's International Realty has 160 agents located in four offices throughout San Diego.

“We strive to provide our clients with the highest level of customer service and feel our core values truly match that of the Sotheby’s International Realty brand,” said Arrington. “We understand that buying and selling a home is a major decision for our clients and that each person comes from a unique background with varying experiences and expectations. Our agents are extremely dynamic in their approach, and we look forward to the global reach this renowned brand offers us.”

The Sotheby’s International Realty® network currently has more than 11,000 sales associates located in approximately 500 offices in 42 countries and territories worldwide. Pacific Sotheby’s International Realty listings will be marketed on the sothebysrealty.com global website. In addition to the referral opportunities and widened exposure generated from this source, the firm’s brokers and clients will benefit from an association with the Sotheby’s auction house and worldwide Sotheby’s International Realty marketing programs."

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WYOMING, IDAHO, ARIZONA AND NEVADA WINDERMERE OFFICES QUIT THE BRAND

FORMER WYOMING WINDERMERE OFFICES SWITCH TO JACKSON HOLE REAL ESTATE ASSOCIATES

It's happening a lot lately.

 

Ethical realty franchise operators are dropping the Windermere logo and embracing other brands, like the former Jackson and Teton Valley Windermere offices in Wyoming and Driggs, Idaho, that have switched to Jackson Hole Real Estate Associates. Windermere now has no presence at all in Wyoming, and has lost yet more market share in Idaho when Windermere Garden Valley dropped the brand and joined up with John L. Scott.

 

RealEstateRama reports that, "Julie Bryan and 24 of the agents formerly of Windermere will join Jackson Hole Real Estate Associates by November 1, 2010. Julie Bryan’s reputation for hard work, client service and community involvement is unsurpassed. The opportunity to grow our presence in Teton Valley made perfect sense. We are optimistic about the future of real estate in the Idaho market and view this expansion as a positive investment," said Bomber Bryan, another principal of JHRE Associates," and "The former Windermere location at 65 South Main Street in Driggs, Idaho will be the new Idaho office for Jackson Hole Real Estate Associates and marks the company’s seventh office location throughout western Wyoming and Eastern Idaho."

ARIZONA OFFICES FLEE THE FLAGGING WINDERMERE BRAND, TOO

In January of 2010, WindermereWatch was concentrating heavily on informing Arizona residents and Windermere listers about Windermere Real Estate's predatory business conduct. Just the previous December, there were numerous Windermere offices in Arizona—we think more than 21—across the state. But in what seemingly was an instant, there were only two Windermere offices remaining, both in Prescott, Arizona.

Perhaps you're at this website because you've received a postcard from WindermereWatch. A central theme in the WindermereWatch message is that—despite false Windermere franchise claims of the opposite—a portion of commission from every Windermere transaction at every Windermere office in every state where Windermere operates goes to fund Windermere’s legal war machine and aggressive litigation against damaged Windermere customers. But once again, decent and responsible Windermere brokers and agents got the message, and acted quickly to protect their customer pool. By January 15 of 2010, WindermereWatch discovered that 19 of the 21 Windermere Arizona offices had disappeared from Windermere.com website. Fair-minded Windermere brokers and agents had demonstrated their esteem for honest and ethical business practice by dropping the Windermere brand. Former Windermere agents and brokers went to Long Realty so fast that their email lineup got switched right in the middle of Windermere webpage boilerplate.

Jerry and Joy Pickles, two previous Arizona Windermere folks now affiliated with Long Realty, were so quick to change the Windermere brand that the banner on their current Long Realty enterprise inadvertently displayed “Windermere” in the copy. Windermere Phoenix West Valley altered individual page links on their site to reflect the Long Realty domain, but left a “Windermere” banner on the webpage.

The prime component in any relationship with a real estate company is trust, and there are so many more-ethical outfits to choose from than Windermere Real Estate. When a real estate company makes a steady practice of mistreating and outright victimizing its customers, those customers go away. Decent, responsible and wise franchise owners, brokers and agents have no alternative but to follow them, and provide a brand which CAN be trusted. Windermere Real Estate is not worthy of your trust.

IN A GROWING NATIONAL TREND, DECENT AND RESPONSIBLE REAL ESTATE FRANCHISE OWNERS, BROKERS AND AGENTS ARE DUMPING THE WINDERMERE BRAND...

Residential real estate listings are conspicuously public. Most, if not all, residential listings are put on the internet by actual street address, town, city and zip code. This industry standard practice has made it extremely easy to directly inform Windermere listing clients through direct mail and WindermereWatch.com about the true nature of the company to which they’ve entrusted their most valuable asset, their home.

WindermereWatch.com and myriad Windermere victims are providing unsuspecting consumers with the truth about public predator Windermere Real Estate, and have not only sponsored their informational websites, but have also delivered an effective direct mail postcard campaign to Windermere home listers throughout the western states in which Windermere operates. After receiving a WindermereWatch postcard and visiting the WindermereWatch website, many Windermere listers decide to cancel or not renew their Windermere listing. Former Windermere home listers are grateful for being enlightened about the risks of dealing with Windermere Real Estate. The upshot seems to be that decent and responsible real estate franchise owners, brokers and agents—who depend on repeat traffic, goodwill of brand, and honest franchiser support—drop the Windermere brand altogether.

Last year, In June of 2009, a huge Las Vegas Windermere brokerage, Windermere Summerlin, “…one of Las Vegas’ top-selling real estate offices…” quit the Windermere brand in favor of Prudential. Windermere Summerlin had grown from 20 agents to more than 100 in the previous 5 years. Windermere Summerlin owners, Heidi and Peter Kasama said they were taking their big Las Vegas operation to a more consumer-friendly enterprise:

“We found that Prudential offered more value to our agents and clients than any other franchise...” Kasama continued, “I would be remiss if I didn’t look for the best opportunities to grow my services, tools and marketing capabilities to survive and thrive in this new economy.” Read the official press release here. The “spin” that Windermere Summerlin was actually “merging” with Windermere was just a lot of softball, let-down hooey. When you visit their website, it’s Prudential all the way.

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JUDGMENT DEBTOR, WINDERMERE CEO GEOFF WOOD’S WINDERMERE RELOCATION “…ABANDONED AND VACATED THE PREMISES” IN BREACH OF OFFICE LEASE, “…AMOUNT OF ALL DAMAGES IS $168,597.30…”

In Complaint No. 09-2-12257-1 SEA, Filed in King County Superior Court on March 12, 2009, Plaintiff Legacy Partners states:

"1. Defendant Windermere Relocation, Inc., is a Washington corporation, doing business in this state and county.

5. Defendant leased the Premises from Plaintiff for the purpose of operating a commercial business.

6. Defendant has abandoned and vacated the Premises. Although Defendant’s rent is current, it has anticipatorily breached the lease by informing Plaintiff that it will be abandoning and will not be continuing to perform its obligations under the lease.

7. As a result of Defendant’s default, Plaintiff will suffer monetary damages. Plaintiff is entitled to accelerated rent and CAM charges through the term of the Lease. The amount of all damages is $168,597,30, as detailed in Exhibit A.”

Filed October 27, 2009, ORDER AND JUDGMENT ON ANSWER OF GARNISHEE AND ORDER TO PAY.

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ARE YOU CONSIDERING A WINDERMERE REAL ESTATE FRANCHISE? CONSIDER CAREFULLY:

Does franchisor Windermere Services Company comply with Federal Trade Commission Disclosure Requirements by revealing its litigation history and vast PR troubles to prospective new franchisees? Does it disclose its many adverse websites, like windermere-victims.com, renovationtrap.com, windermere-gallery.com, and windermerewatch.com? Does it inform prospective franchisees that sales volume and reputation is reduced by consumer search engine results that include these adverse websites along with listings for their specific Windermere office? Does Windermere Services tell prospective franchisees that it falsely sues victims of Windermere misconduct in an effort to silence and coerce them out of their speech rights? Does franchisor Windermere Services Company inform prospective franchisees of its privity argument which may legally tie all Windermere franchisees to Windermere Services' predatory conduct, policies and marketing fraud?

 

Under Federal Trade Commission Rules, Part 436, Disclosure Requirements, any franchiser has a legal duty to disclose:

16 CFR 436.2 (5)(n) ...any fact, circumstance, or set of conditions which has a substantial likelihood of influencing a reasonable franchisee or a reasonable prospective franchisee in the making of a significant decision relating to a named franchise business or which has any significant financial impact on a franchisee or prospective franchisee."

16 CFR 436.1(4) A statement disclosing who, if any, of the persons listed in paragraphs (a) (2) and (3) of this section: (ii) Has, at any time during the previous seven fiscal years, been held liable in a civil action resulting in a final judgment or has settled out of court any civil action or is a party to any civil action:

 

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Windermere’s legal strategy of costly, interminable, vexatious litigation drives a dispute over a $16,800 agent commission to a judgment of $186,195.41—in favor of the agent. And Windermere—of course—is appealing...

...while also trying to enforce the cult-like “Windermere Way:" 

“Shortly before the sale of the Brady Property closed, and without Mr. Rodriguez knowledge or consent, Windermere Wall Street altered the Commission Disbursement Form to disburse 100% of the listing agents’ commission to Ms. Thompson…

…Windermere’s arbitration provision, however, requires Mr. Rodriguez to submit his claims to a partisan panel of “Windermere owners, brokers, managers, and sales associates” as arbitrators…

…Because Windermere’s arbitration provision requires submission of disputes to a partisan panel the provision cannot provide an impartial decision maker. Provisions requiring arbitration before a party to the action are “repugnant to a proper sense of justice” and are not enforceable”

MYSTERIOUSLY TERMINATED WINDERMERE AGENT CLAIMS WILLFUL WITHHOLDING OF WAGES UNDER STATE LAW; ALSO VIOLATION OF THE CONSUMER PROTECTION ACT, BREACH OF CONTRACT, UNJUST ENRICHMENT, BREACH OF FIDUCIARY DUTY, FRAUD AND MISREPRESENTATION

From the Complaint of Case No. 06-2-35308-1SEA, stated in part under:

“III. FACTS

7. Mr. Rodriguez worked at Windermere Wall Street as a “sales associate” until April 2005. While at Windermere Wall Street, Mr. Rodriguez had a 50/50 equal partnership with Ms. Thompson ) also a “sales associate” at Windermere Wall Street) where they sold properties jointly and shared the agents’ portion of the commission fee on an equal basis.

8. During the partnership, Mr. Rodriguez and Ms. Thompson jointly listed a property owned by Michael (and Doreen?) Brady (“Brady Property”). The Purchase and Sale Agreement for the  for the Brady Property lists Mr. Rodriguez and Ms. Thompson jointly as the “Listing Broker” The Commission Disbursement Form states that Mr. Rodriguez and Ms. Thompson were each to receive 50% each of the listing agents’ commission of $16,800 each.

 9. Mr. Rodriguez’s association with Windermere Wall Street was terminated, abruptly and without cause, before the Brady Property sale was finalized. Although Windermere Wall Street stated that Mr. Rodriguez’ license would be transferred to an office in which he could list and sell property, Mr. Rodriguez license was transferred to a “referral office” where Mr. Rodriguez was unable to list or sell property.

10. Before leaving Windermere Wall Street, Mr. Rodriguez and Windermere Wall Street management signed a salesperson Exit Form confirming the agreement that Mr. Rodriguez would receive $16,800 from the sale of the Brady Property up[on its finalization.

11. Nothwithstanding the agreement, upon the closing of the sale on the Brady Property Windermere Wall Street refused to pay Mr. Rodriguez his share of the agents’ commission fee.

12. Shortly before the sale of the Brady Property closed, and without Mr. Rodriguez knowledge or consent, Windermere Wall Street altered the Commission Disbursement Form to disburse 100% of the listing agents’ commission to Ms. Thompson.

13. Only after obtaining discovery in this case, Mr. Rodriguez learned that Ms. Thompson had been involved in a number of transactions during the period of their partnership, for which she received a commission. Ms. Thompson did not disclose these transactions to Mr. Rodriguez and she sought to hide from Mr. Rodriguez. Mr. Rodriguez was unaware of these transactions and he did not receive any portion of the commissions from them.

IV. WINDERMERE’S ARBITRATION CLAUSE IS UNENFORCEABLE

14. Windermere’s agreement with Mr. Rodriguez includes an arbitration provision. Windermere’s arbitration provision, however, requires Mr. Rodriguez to submit his claims to a partisan panel of “Windermere owners, brokers, managers, and sales associates” as arbitrators. Windermere attempts to mask the inherent bias of a Windermere-only arbitration panel by inserting provisions superficially providing participation in selection and requiring fairness and lack of bias.

15. Because Windermere’s arbitration provision requires submission of disputes to a partisan panel the provision cannot provide an impartial decision maker. Provisions requiring arbitration before a party to the action are “repugnant to a proper sense of justice” and are not enforceable. Contract provisions requiring arbitration before arbitrators designated through one party’s unrestricted choice would not provide an impartial decision maker and are unenforceable”

On March 11, 2010, the court entered a 2nd Amended Judgment for an amount of $186,191.45 in favor of Plaintiff Roberto Rodriguez and against Judgment Debtors Windermere Real Estate / Wall Street and Sara and John Doe Thompson, Jointly and Severally: Principal Amount: $12,338.92; Interest Owed on Principal: $9,097.00 (at 18% through March 5, 2010); Attorneys Fees & Costs: $164, 755.53

On April 6, 2010, Windermere Demco Attorney Matthew F. Davis filed a Notice of Appeal to Court of Appeals, Division One.

 

Notwithstanding Windermere's E&O insurance provider, maybe Windermere-Demco-Davis will push this $16,800 commission dispute all the way to $1,000,000.

 

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"The trial court refused to compel arbitration because of inherent unfairness in Windermere's arbitration procedure."

WASHINGTON STATE APPEALS COURT SLAMS THE "WINDERMERE WAY"

"The arbitrators are expected to reflect the “Windermere Way." Excerpted from the Washington State Court of Appeals Opinion:

"To recoup the commission, Rodriguez's attorney sent a letter requesting binding arbitration before a single, independent, non-partisan arbitrator, to which Windermere Wall Street never responded. Rodriguez filed suit against Windermere Wall Street and Thompson in November 2006, in which he alleged willful withholding of wages, violations of the Consumer Protection Act, breach of contract, and unjust enrichment. Windermere Wall Street provided no responses to Rodriguez's requests for production or interrogatories. Instead, Windermere Wall Street brought a motion to compel arbitration based on the arbitration provision in Rodriguez's contract. The trial court refused to compel arbitration because of inherent unfairness in Windermere's arbitration procedure.  “RCW 7.04A.110(2) requires that an arbitration be neutral as defined in the statute. Limiting the panel of arbitrators exclusively to those selected by Windermere Real Estate Service, Co., even if the local franchise office is excluded from the ‘list’, violates the language and spirit of the statute.” Windermere Wall Street appeals this ruling.

 

Rodriguez had received a written acknowledgment of a commission due from Windermere. After his employment was terminated, Windermere changed position and paid most of the acknowledged commission to an agent still in its employ. We do not decide whether this was proper or not;  the merits are not before us. The question is whether the arbitration process prescribed by Windermere should be applied to these facts. Windermere provided the contract, wrote the arbitration procedures, and selects the arbitrators. The arbitrators must be solely from current employees within the Windermere franchisee family. The arbitrators are all brokers or agents of sister franchisees, which have a continuing, mutually beneficial relationship with the franchisor. The arbitrators are expected to reflect the “Windermere Way.” The “Windermere Way” may mean that it is in the interests of Windermere Wall Street to have the commission in dispute paid to a continuing employee rather than to someone whose employment it has terminated. We conclude the potential arbitrators have a known, existing and substantial relationship with the party-franchisee. On these facts, the process does not satisfy the neutrality requirements of the arbitration statute.

We affirm the trial court's denial of the motion to compel arbitration."

Read the entire Washington Appeals Court Opinion here.

 

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The Windermere Real Estate Relocation Rape Case:

Court Declares that Windermere "...condoned a rape by a business colleague..."

 

Editorial Preface: The incredibly violent and insidious psychological ramifications of rape, connected through an “abusive work environment” serves as an unfortunate yet credible subtext for the way in which Windermere Real Estate treats employees and damaged customers alike: Windermere’s application of aggressive, wasteful and mendacious litigation to stall and ruin innocent consumers, serves as the coercive metaphor of corporate power and arrogance: Windermere has no concern for the social damage it has done to people or communities. It cares only about how to manipulate the law and the courts to avoid any legal responsibility.

 

(Above L to R) Windermere CEO Geoff Wood (far left) is currently listed as a Governing Person of Windermere Relocation. Peggy Scott (second from left), also a current Governing Person of Windermere Relocation, "... did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little." Windermere General Counsel, attorney Paul Drayna (third from left) is listed as the registered agent of RELO LLC, the current entity name of Windermere Relocation. Windermere Founder John W. Jacobi (fourth from left) along with Gayle Glew (far right) are listed as Governing Persons of Windermere Relocation during the Little case. Glew told Ms. Little he did not want any "clouds in the office," and subsequently, after she would not accept a pay cut, that she should clean out her desk.

All citizens who abhor such treatment of women in the workplace should recall Maureen Little v. Windermere Relocation when choosing real estate services. WindermereWatch visitors will also want to read the United States District Court of Appeals Ninth Circuit's Order and Amended Opinion from the Little case.

 

Summarized and excerpted from a decision by the U.S. Court of Appeals

 

Maureen Little was employed by Windermere Relocation Services (“Windermere”) as a Corporate Services Manager, a position that required her “to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees.” Until she was terminated, she received only positive feedback from her supervisors. Windermere’s records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.

Unlike the other managers, Little’s employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The override was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make the target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.

One of Windermere’s clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would “do whatever it takes to get this account” and that Little should “do the best job she could.” Thus, little believed that, as part of her job, she was to build a business relationship with Guerrero to try and get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.

On October 14, Little accepted Guerrero’s invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drover her to her car.

Little was reluctant to tell anyone at Windermere about the rape because, in her own words, “I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account.” This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little’s supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared “what might happen to [Little] if [she] did tell.”

On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere’s Harassment Policy as a complaint-receiving manager. Little described Scott’s response:

She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].

 

Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.

 

Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks ... a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position.... I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.

 

When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's" immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.

 

Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.'" When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.

 

Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims.

 

Little appealed dismissal of her claims, and the appeals court reversed in part, and ruled:

 

In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career[]."

 

Incredibly, Windermere asked for a rehearing, but "...the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

 

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WINDERMERE: AMERICA'S PREDATORY REAL ESTATE ENTERPRISE

Consumer advocates, legal experts and elected lawmakers all agree that the American real estate industry demands greater regulation to protect consumers from the human disaster of real estate fraud perpetrated by unethical realtors employed at companies like Windermere Real Estate. Windermere manipulates our clogged, inundated courts and the justice system to stall, wear down and financially exhaust victimized consumers, many of whom are wiped-out by the cost of pursuing civil justice in a process where innocent victims must CHASE perpetrators of real estate fraud through the courts AFTER a fraudulent offense has been committed. Acts of fraud are so common and widespread throughout the Windermere real estate network, that the defense of real estate fraud has become has become just another bottomline expense on the Windermere balance sheet. And the litigation nightmare of real estate fraud can happen to anyone who deals with Windermere Real Estate. It could happen to you. Windermere is by far the most unethical, deceitful, and culturally toxic real estate company operating in the United States. Windermere knowingly, deliberately, and unabashedly profits on corrupt franchise owners, brokers and agents with proven histories of fraud and ethical misconduct, many of whom are profiled in the pages of WindermereWatch.com. Despite Windermere's well-documented assault on victim speech rights, more and more unconscionable cases of Windermere fraud continue emerging.

Windermere is headquartered in Seattle, at franchiser Windermere Services Company. It was founded by John W. Jacobi, and he has kept the company a private, family-owned enterprise, eluding the transparency and ethical accountability required by stockholders. For decades, Windermere has harnessed the art of positive PR, affixing itself—however superficially—to community art events, the homeless, and even an annual college rowing competition which opens Seattle's boating season—the Windermere Cup—irresponsibly promoted by, and in conjunction with, the University of Washington. But those are the disingenuous and cynical sideshows created by an adept market manipulator, shown only briefly to the public, to obscure and obfuscate Windermere's true predatory nature.

FRANCHISER WINDERMERE SERVICES' MANAGEMENT TEAM AND DESIGNATED GOVERNING PEOPLE: EXPERTS IN MARKETING FRAUD, ABUSE OF THE LEGAL PROCESS, AND AT COERCING DAMAGED WINDERMERE CLIENTS INTO SILENCE BY SUPPRESSING THEIR SPEECH RIGHTS

The shameless greed and repugnant ethics of Seattle's Jacobi family, deliberately profiting on the loss and suffering of Windermere victims through commissions on the fraudulent home deals and unlawful misconduct of dishonest Windermere agents, brokers and franchise owners. Forget human decency, commercial reputation or social responsibility—it's all about the money.

Before turning the business over to his children and son-in-law, Windermere founder John W. Jacobi (left) simply ignored any complaints of fraud from Windermere victims, sending them straight to the lawyers. Yet despite claims of retirement, Jacobi is still indeed quite active at franchiser Windermere Services Company:

In Complaint 10-2-36192-8 SEA, filed in King County Superior Court on October 12, 2010, Windermere Services Company has sued former Windermere Puyallup Canyon Road owner Joe Maxwell for default on an “Unconditional Guaranty of Payment” promissory note. The Maxwell Answer and Counterclaims state that the “Plaintiff's [Windermere Services Company] claims are barred by Plaintiff’s fraud, duress, and unclean hands,” and alleges $4,000,000 in damages and violation of Washington's Franchise Investment Protection Act; and also that "The alleged Note and Guarantee are unconscionable and unenforceable." Maxwell's Counterclaims state "6. The WPCR Operating Agreement contains a provision granting Jacobi a special veto power which among other things, states that the company shall conduct its business and manage its affairs in accordance with the directions of Jacobi and all management decisions are subject to Jacobi’s review," and "13. In early 2006, WSC and Jacobi decided to open another WSC office in the territory in which WPCR was operating, despite the objections of Maxwell. As a result of the opening of this new WSC office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new office in Graham, Washington," and "14. As a direct result of these actions taken by WSC and Jacobi, WPCR was left with a large debt burden and overhead, and WPCR’s revenue was significantly reduced... 22. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received and email from WSC notifying him WPCR’s franchise had been terminated. This notice was sent to WPCR’s real estate agents before Maxwell learned of the termination of WPCR’s franchise." Read the complete report on this case here.

Jacobi's Washington Loan Company is also currently being sued for Intentional Misrepresentation—read that report here. And the Windermere affiliated service company, Commonwealth Land Title Company of Puget Sound, has recently been found negligent by a jury who awarded the third-party plaintiffs $1,190,000. Read the Commonwealth report here.

 

Current Governing Person and Windermere Services Company CEO Geoffrey P. Wood (left) is married to John W. Jacobi's daughter, Jill Jacobi-Wood. Wood is the chief architect of Windermere marketing fraud, inducing business volume through—among other fraudulent promotion—an express warranty of "The highest ethical standards. Uncompromising honesty and integrity." When called upon to honor his company's warranty, Wood instructs Demco lawyers—led by Matthew F. Davis–to sue vocal victims for libel and defamation. Wood is also a Governing Person of Windermere Relocation, the subject enterprise of Windermere's employee rape case. He was briefly a real estate sales person in 1994, but that license was CANCELLED in 1995, and Wood currently has no real estate license of any kind that WindermereWatch can find.

 

Governing Person Jill Jacobi-Wood (left), Windermere Services President, is a licensed real estate broker in Washington State, and as such is subject to the statutory condition of RCW 18.86.030 "(d) To deal honestly and in good faith." For her part in Windermere's marketing fraud and malfeasance, Jacobi-Wood's RE license should be cancelled by the Washington State DOL's real estate division. By promoting honesty and integrity—while in reality—she is suing and coercing Windermere victims to shutup about their Windermere experience, Jacobi-Wood is hardly dealing honestly and in good faith.

 

 

Governing Person John O'Brien "OB"Jacobi (left) is General Manager of franchiser Windermere Services Company and also has many Windermere realty brokerage offices. He's a licensed real estate broker who is also called upon by statutory law to "Deal honestly and in good faith." But John "OB" Jacobi instead promotes fraudulent claims of honesty and integrity, and falsely sues victims of Windermere misconduct for libel and defamation to intimidate them and coerce their silence. Then this junior Jacobi runs away and voluntarily dismisses his own mendacious lawsuit when a victim refuses to sign Windermere's dark clause settlement agreement that has cost the victimized party so much distress and money and to defend.

 

 

Windermere Services Governing Person and attorney—WSBA# 26636—Paul Drayna (left) has even more stringent ethical requirements placed upon him through his collateral professions of Lawyer and Notary Public; and Drayna is also bound by the Model Rules of Professional Conduct. But Mr. Drayna is not just practicing marketing fraud at Windermere. As Windermere in-house counsel, Drayna oversees Windermere's legal strategy of abusing process by falsely suing victims for libel and defamation, and then attempting to intimidate and coerce those victims out of their speech rights and into Windermere's Dark Clause silence agreement. When victims WON'T sign the Windermere Dark Clause, Drayna runs away too, and voluntarily dismisses his own company's lawsuit under Civil Rule 41—but only after first costing the victim thousands to defend the phony lawsuit. Drayna is even copied on the mendacious, Demco-authored settlement documents meant to quash speech rights and be signed by Windermere victims.

 

WINDERMERE'S DEMCO LAW FIRM: ESCHEWING ETHICS and DOING WHAT OTHER LAWYERS JUST WON'T DO

 

Attorney and multi-office Windermere broker John Demco (left) is the ethically-elastic Windermere kingpin lawyer who operates Demco Law, Windermere’s in-house legal firm, whose primary job is to stall and outspend small fry consumers damaged by dishonest Windermere brokers, agents and franchise owners. When an innocent real estate consumer has the misfortune to suffer one of Windermere’s many bad apples, Demco Law Firm will refuse to settle the matter forthrightly, no matter what conspicuously unlawful or offensive conduct the agent or broker has committed. Demco and Windermere will force the aggrieved party to sue or swallow their damage and go away—standard Windermere operating procedure.

 

WindermereWatch has compiled voluminous evidence that Windermere-Demco attorney Matthew F. Davis (left), WSBA# 20939, is the kind of lawyer about which jokes are coined. Davis is franchiser Windermere Services' frontline bully—the guy in the legal trenches actually wrecking lives, making threats, and suing victims who speak out. When Shakespeare was recommending "The first thing we do, let's kill all the lawyers," in Henry the Sixth, Part 2, he was talking about egomaniacal lawyers like Matt Davis.

Attorney Matt Davis of Windermere's Demco Law Firm is so unethical, so deceitful and intimidating, that he's famous in law circles. As Windermere-Demco's lead attorney, Matthew F. Davis is renown for his dishonesty, dubious legal tactics, lack of decency and disrespect for the rules of professional conduct. He will do absolutely anything to win—without regard for truth or justice. He will lie to courts and opposing parties. He will file fallacious and erroneous documents with the court. He will email opposing parties telling them not to hire a lawyer when he has just served them a lawsuit. He will call a judge's chambers and request more time without informing the opposing party. He will file orders for a bench trial when he knows a jury trial has been demanded and paid for. He will trick, stall, coerce, menace and threaten. He will invent and extend mendacious Windermere litigation and abuse the legal process for no other reason than to exhaust an opponent’s pocketbook. If he can, he will get YOUR attorney to quit—a favorite tactic.

Windermere, Davis and Demco Law will push a $5 cat poop case all the way to the state supreme court just to avoid paying damages—because it’s all in the Windermere operating budget. And in the end, Windermere and Davis will try to coerce silence about your Windermere experience by trying to make you sign a "settlement" agreement that terminates your speech rights, so you can't ever inform the public about your Windermere debacle. What if you DON'T sign that you'll shut up, and then SPEAK UP instead? Windermere-Demco's Matt Davis will sue you for libel and defamation, then run away and dismiss his own lawsuit on the eve of trial—because after all—you're telling the truth.

Windermere's Clear and Overt Marketing Fraud:

"THE HIGHEST ETHICAL STANDARDS. UNCOMPROMISING HONESTY AND INTEGRITY."

—The Windermere Real Estate Mission Statement

Windermere widely promotes its deceptive express warranty in sales documents and on the internet which states "We are committed to... The highest ethical standards. Uncompromising honesty and integrity." In other Windermere promotion, like the Puget Sound Business Journal, Windermere CEO Geoff Wood is quoted as saying "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." The article goes on to say, "Geoff oversees marketing, legal, financial and internet development services throughout the Windermere network..." Mr. Wood claims absolute dominion over both Windermere legal and internet strategy, making him chief architect of Windermere marketing fraud.

Effective reportage can be harsh in recounting facts, but it must be said in consideration of all the Windermere victims profiled here who truly sought Windermere's vaunted honesty and integrity, that Windermere Services CEO Geoffrey P. Wood is simply lying when he states his company's utterly false and fraudulent commitment to honesty and integrity. He both lies and deceives again when he says that "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." Wood clearly doesn't do what he says he's going to do—be committed to uncompromising honesty and integrity. Wood himself is indeed IN the real estate business and his word is absolutely no good at all. He sues victims of Windermere misconduct for trade libel and defamation to shut them up, and then he tries to use the legal system to suppress victims' speech rights when they ask him to actually perform on the warranty he promotes. As this website proves, Mr. Wood does anything BUT what he says he's gonna do. Far from providing victimized Windermere customers a commitment to high ethical standards, honesty and integrity, Wood and Windermere run away and hide behind their lawyers when innocent consumers are ruined by their Windermere experience.

John W. Jacobi, Geoff Wood, his wife Jill Jacobi-Wood, and governing cohorts John O'brien "OB" Jacobi and attorney Paul Drayna have gone to the absolute ends of the earth in stonewalling, ignoring, denying and fleeing any and all responsibility for Windermere wrongdoing and misconduct. When called upon by victimized Windermere consumers to make good on its warranty of honesty and integrity, Windermere even states in legal pleadings that Windermere agents are NOT agents of Windermere at all—but independent contractors. As the legally-designated Governing People and top managers of the Windermere empire who drive policy, ethics and market promotion, it demands repeating that John W, Jacobi, Geoff Wood, Jill Jacobi-Wood, John OB Jacobi and attorney Paul Drayna are all clearly lying when they promise high ethical standards and uncompromising honesty to the public and consumers of real estate services.

Protect your life, home, family and future by cancelling or not renewing your Windermere listing. Don't risk doing business with Windermere Real Estate, the brand built on lies, fraud and ruined lives. Refuse to fund public predator Windermere Real Estate with commission from the sale of your home.

 

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Is WindermereWatch.com of social benefit to consumers and the public? You decide:

Windermere Real Estate is one of our country’s largest real estate companies and widely promotes a fraudulent express warranty that states “We are committed to... The highest ethical standards. Uncompromising honesty and integrity.” The definition of an express warranty from Black's Law Dictionary is: "A warranty created by the overt words or actions of the seller. • Under the UCC, an express warranty is created by any of the following: (1) an affirmation of fact or promise made by the seller to the buyer relating to the goods that becomes the basis of the bargain."

But when customers are victimized by dishonest Windermere brokers and agents, and complain in writing through legal counsel to franchiser Windermere Services Company, it is absolutely silent in the face of clear and convincing evidence, and forces the customer to sue or go away. In many cases, unsuspecting consumer lives are thrown into complete chaos through costly litigation; and also because the subject homes may actually be uninhabitable or unserviceable for reasons about which Windermere knew and had a legal obligation to disclose—but did not. For some victims, the long and expensive litigation forced upon them even results in bankruptcy and homelessness. Despite their clear evidence, many victims go on to lose in court because they can't afford attorneys or have no legal experience, and Windermere exploits those impediments to endless advantage—lives, homes, and personal finances are ruined forever. And Windermere expects those victims to just go away without their lives and homes, merely for buying a house through Windermere Real Estate, innocently.

Although such irrefutable evidence of Windermere broker/agent misconduct has been presented to franchiser Windermere Services Company, it knowingly continues collecting commissions from dishonest agents and brokers by deliberately passing them on to other unwitting consumers. Just one example is Windermere S.C.A. Redmond's Paul Stickney, who received a $522,200 court judgment for not disclosing a conflict of interest, but is still producing commissions for his Windermere SCA franchise, and Windermere Services Company. Is that the "Highest ethical standards. Uncompromising honesty and integrity?" You may want to search and visit more websites about Windermere's predatory business conduct.

When victims use the media to report their Windermere experiences honestly, Windermere sues them for libel and defamation through false lawsuits to intimidate, silence, and hush bad PR—read one of those lawsuits here. It then tries to coerce victims into signing a “dark clause settlement agreement” that permanently terminates their speech rights—read some of those "settlement" agreements here. Through an expensive and emotionally distressing roller coaster ride with Windermere's nasty Demco lawyers, a victim of Windermere fraud is told they will be taken all the way to trial on trumped-up libel and defamation charges, and if they don't sign the dark clause, their life and future will be ruined. When a victim persists in refusing to sign, Windermere voluntarily dismisses its own lawsuit under Civil Rule 41, just before trial, after costing the victim years and yet thousands more to defend against the false action. This predatory legal tactic is known as abuse of process or malicious prosecution. In one example cited below, franchiser Windermere Services Company served an outspoken victim a lawsuit for libel and defamation, and then immediately sent them an email instructing that they "...need not hire an attorney," and further stating, “…we will try to resolve this directly and outside the legal system.”

Every Windermere office in every state is legally tied to franchiser Windermere Services Company's fraudulent express warranty, false advertising, predatory conduct and policies through privity and its pecuniary franchise agreement. Some legal observers believe that Windermere's conduct has RICO and Civil Rights violation implications. If you have recently purchased a Windermere franchise without having been disclosed Windermere's falling brand value, PR decline, and its adverse website problems, click here for its duty of disclosure under Federal Trade Commission rules. Proof that Windermere Services Company knew about WindermereWatch.com in March of 2007 is in this document.

Windermere Real Estate is a textbook corporate predator who operates franchises in Washington State, Oregon, California, Arizona, Nevada, Utah, Idaho, Montana, Hawaii and British Columbia. Windermere repeatedly makes the false claim that it has offices in Wyoming, but it does not. If you’re buying or selling property through ANY Windermere office, a percentage from your transaction will be used by franchiser Windermere Services Company to silence and financially ruin innocent parties who’ve encountered Windermere fraud. Windermere won't pay legitimate damages or acknowledge wrongdoing, and will stall settlement of cases all the way to state supreme courts, a legal strategy that Windermere routinely employs to bankrupt victims and exhaust their resources.

We believe the information presented here is of profound social benefit to consumers and the community, and we are dedicated to providing it.

THROUGH FEES AND COMMISSIONS PAID TO FRANCHISER WINDERMERE SERVICES COMPANY, EVERY WINDERMERE NETWORK OFFICE IN EVERY STATE IS AN ENTHUSIASTIC PARTNER AND KNOWING ACCESSORY TO WINDERMERE MARKETING FRAUD AND ITS PREDATORY POLICIES

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