"Ethical agents are growing more and more reluctant to show Windermere listings these days, and potentially expose their clients to such catastrophic jeopardy. WindermereWatch.com is an indispensable internet news and opinion resource that provides hard evidence why consumers and prospective realty franchisees should avoid Windermere Real Estate at all costs."

 

 

 

 

WindermereWatch

A public service consumer advocate reporting clear, compelling evidence of America's most dangerous and unethical corporate predator, Windermere Real Estate. When your home is listed for sale by Windermere, the resulting commission will fund Windermere's predatory legal strategies against other Windermere customers damaged by unscrupulous Windermere brokers, agents and franchise owners. 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.

ABOUT WINDERMEREWATCH.COM CONTENT: Various image and editorial WindermereWatch.com content is protected from copyright infringement by 17 U.S.C. § 107, Non-Commercial Fair Use. Learn more about Fair Use here. ALL legal documents, pleadings, and case summaries presented on WindermereWatch.com have been collected from public resources available to everyone. Challenges to WindermereWatch.com and/or Windermere Victims' First Amendment speech rights will be vigorously defended. FOR PROOF THAT WINDERMERE INTIMIDATES, THREATENS AND SUBMITS FALSE STATEMENTS TO WEBSITE HOSTING COMPANIES, CLICK HERE.

Is WindermereWatch.com of social benefit to consumers and the public? Decide by clicking here.

WindermereWatch Home • Got a Comment, Question, Case Tip or Windermere Story? Email WindermereWatch

WINDERMERE REAL ESTATE: THE BRAND OF RUINED LIVES and INCOMPREHENSIBLE HUMAN TRAGEDY

 

WINDERMERE REAL ESTATE SERVICES COMPANY, WINDERMERE REAL ESTATE SOCAL, INC., and WINDERMERE REAL ESTATE COACHELLA VALLEY—dba BENNION & DEVILLE FINE HOMES—SUED FOR WRONGFUL DEATH DUE TO NEGLIGENCE IN RENTAL HOME CHILD DROWNING (Above left) Subject home of tragic drowning on Redbud Road in Desert Hot Springs, California...

...THE BENNION & DEVILLE FINE HOMES/WINDERMERE CROSS-COMPLAINT NAMES ITS OWN SALES ASSOCIATE, RON LINDEMANN, AS A CROSS-DEFENDANT...

...WINDERMERE ALSO BLAMES THE GRIEVING PARENTS: THE BENNION & DEVILLE FINE HOMES/WINDERMERE COACHELLA VALLEY ANSWER STATES, "This Answering Defendant is informed and believes and thereon alleges that Plaintiffs were aware of, perceived, appreciated, comprehended and understood the hazards associated with the existence of a swimming pool. Despite their appreciation of such risk, Plaintiffs unreasonably exposed themselves to the risk of harm, thereby causing and/or contributing to their own damages, if any."

"...fair market value, at the time Plaintiff purchased it, was only $80,000, or $230,000 less than Plaintiff had paid for it, on the advice of Windermere."

BENNION & DEVILLE FINE HOMES, DBA WINDERMERE REAL ESTATE COACHELLA VALLEY, SUED FOR CONSTRUCTIVE FRAUD AND OTHER CLAIMS

 

 

WINDERMERE SUED FOR UNFAIR TRADE PRACTICES... Windermere Coachella Valley and franchiser Windermere Services sued for Unfair Trade Practices in California: Bennion & Deville Fine Homes, Realtor Peggy Shambaugh, sued for Professional Negligence and other claims in $30 million-plus deal. Complaint alleges Windermere Services is an "unlicensed entity." READ THIS REPORT

 

WINDERMERE SUED FOR CONSTRUCTIVE FRAUD... Bennion & Deville Fine Homes, doing business as Windermere Real Estate Coachella Valley sued for Constructive Fraud, Unfair Trade Practices and other claims: "...Plaintiff discovered that the Baseline Property's fair market value, at the time Plaintiff purchased it, was only $80,000, or $230,000 less than Plaintiff had paid for it, on the advice of Windermere." READ THIS REPORT

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

 

Franchiser Windermere Services Company Files Breach of Contract Lawsuit against previous franchisees Lifestyles Services Corporation, Lifestyles Services Solana Beach/RSF Corp., MRJR, Inc., all formerly Windermere Exclusive Properties.

STORY HERE

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ALTERNATIVE SERVICE PROVIDERS:
• COLDWELL BANKER
• CENTURY 21
• JOHN L. SCOTT
• RE/MAX
• PRUDENTIAL
• KELLER WILLIAMS
• HELP-U-SELL
• ASSIST-2-SELL

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Smart Consumer SideBar:
 
Read the FINANCIAL CRIMES ENFORCEMENT NETWORK REPORT...

"SUSPECTED MONEY LAUNDERING IN THE RESIDENTIAL REAL ESTATE INDUSTRY"

Courtesy of www.FinCEN.gov
Download this important info here.

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CONSUMERS ARE URGED TO EXERCISE CAUTION IN THEIR SELECTION OF REAL ESTATE SERVICES...

What everyone who is currently doing business with Windermere Real Estate—or what anyone who is CONSIDERING doing business with Windermere Real Estate—should know about this predatory and consumer abusive company:

In most cases, your home is the single biggest and most important investment you will ever make. Your ability to afford a home, and your home itself, are at the core of your happiness and human survival. If you can, just imagine for a moment what it would mean to lose your home; or what it would mean to lose the financial resources you’ve toiled so hard to earn—that allow you to own a home. This website is about the many individuals who have actually lost their homes or financial resources—or both—because they had the misfortune to deal with public predator Windermere Real Estate. And the cases presented here are only the ones we KNOW about—we’re finding more all the time. Please consider this next information VERY carefully, for how diligently you consider it may determine if you are willing to risk losing EVERYTHING you have ever worked for, including your home itself.

There are plenty of deceitful Realtors out there, Realtors who are willing to ruin your whole life just to make a buck. Have you ever thought about what might happen if something goes wrong with your home transaction? Most of the national brand real estate companies have policies in place to address agent or broker misconduct, but not Windermere Real Estate—it’s privately held by a single family, with no stockholders.

After all, your home is not a shirt from Macy’s you can return under a well-mandated return policy. It’s true that most home sales and purchases go smoothly, but have you ever asked yourself… “Who will be responsible if I end up with a crooked real estate agent who lies, or who doesn’t disclose something awful they know about the property I’m buying? Who will be responsible if I’m dealing with some agent who’s running a financial scam they’re not revealing? Who will be responsible if my agent is in cahoots with a dishonest seller, or is conspiring with an inspector who looks the other way at serious problems so the agent will recommend him again?”

The answer is, in most cases, it’s the franchise owner and/or the broker to whom the agent is licensed, that is responsible for agent malfeasance. And nobody would be willing to buy a Windermere franchise, or be a Windermere broker, if they’d actually end up being legally responsible for all the damage a dishonest Realtor will cause, because that damage is not done to a simple shirt from Macy’s that you can return: THAT DAMAGE IS DONE TO SOME INNOCENT AND UNSUSPECTING HUMAN BEING’S HOME, LIFE and FINANCIAL FUTURE.

If you're a buyer and some variety of agent misconduct has occurred, the subject property may not be habitable for various reasons, which will turn your life upside down, fast. There’s enormous money and emotional distress at stake. And there will be lawyers, lots of lawyers. Windermere Real Estate employs and profits on so many corrupt franchise owners, brokers and agents, that it maintains its own fulltime, in-house legal services, the Demco Law Firm. If you think for one moment that when your Windermere home deal goes bad, your Windermere broker or franchise owner is going to run over, apologize, and ask what they can do to help you, you’ve got another, very serious think coming. When your Windermere agent crosses over the Realtor code of ethics line, YOU AND YOUR HOME BECOME THE ENEMY.

That broker and/or franchise owner are legally on-the-hook for their agent’s misconduct, and the Windermere Legal War Machine will come down on you like a supersonic ton of bricks. If Windermere did not provide its franchise clients such hardcore legal resources, nobody would even BE a Windermere broker or franchise owner—the exposure is too great. And make no mistake, Windermere will do nothing—and spend nothing—to settle your problem amicably, no matter what indecency the agent or broker has committed. Windermere will force you to sue. Windermere's much-ballyhooed and heavily promoted commitment to "The highest ethical standards. Uncompromising honesty and integrity," is nothing but a marketing lie designed to induce business volume.

Windermere's Demco Law Firm is so unethical, so deceitful and intimidating, that it’s famous in law circles. Its 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 costly, 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—while your legal expenses will be coming out of your savings, retirement account, home equity or credit cards, if you even have those resources. And in the end, Windermere/Davis/Demco will try to coerce silence about your bad Windermere experience by forcing you into signing a legal "settlement" agreement that terminates your speech rights, so you can't ever tell anybody or inform the public about your Windermere debacle. When you sign, they'll let you out of the bogus lawsuit.

Don't be fooled when your particular local Windermere office says "Oh... OUR Windermere franchise doesn't work that way." Every Windermere franchise in every state pays a portion of every commission to franchise policy-maker Windermere Services Company, and its legal war chest. If you are dealing with Windermere Real Estate, you are unwittingly being duped into funding Windermere's financial genocide against other damaged Windermere customers.

If anything does indeed go wrong with your Windermere home transaction—like it has for so many—you may never recover. When these profoundly devastating problems occur, the resulting irreversible human toll of precious time, money and brutal emotional distress will forever ruin your life and future. If you are considering doing business with Windermere Real Estate, think VERY carefully about doing so.

REMEMBER: IF SOMETHING GOES WRONG WITH YOUR WINDERMERE DEAL, IT'S FAR EASIER—AND CHEAPER—FOR WINDERMERE LAWYERS TO STALL AND SLOWLY WASTE YOUR ENTIRE NET WORTH ON LITIGATION, THAN IT IS FOR WINDERMERE TO STEP UP AND MAKE YOU WHOLE.

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WINDERMERE'S PRIVITY ARGUMENT

DO YOU HAVE A LEGAL DISPUTE WITH WINDERMERE REAL ESTATE? YOU MAY BE ABLE TO ADD FRANCHISER WINDERMERE SERVICES COMPANY TO YOUR COMPLAINT.

Franchiser Windermere Services Company prevailed in a motion in which it has admitted that it is in tradename privity with its Windermere network owner franchisees. (Access the motion here)

Are you suing or litigating against Windermere Real Estate? Are you the victim of a dishonest Windermere agent, broker, or franchise owner who is forcing you to sue to recover honest damages? Franchiser Windermere Services Company has prevailed in a motion in which it has admitted that it is in tradename privity with its franchisees, which may allow you to add  Windermere Services and/or the entire Windermere Real Estate Network of franchise owners to your complaint. Ask your lawyer. Read what follows here, then print out Windermere’s Motion for Partial Summary Judgment and take it to your legal counsel, or send your legal counsel the link to this story.

In King County Superior Court case number 05-2-34433 SEA, to dispose of a defendant’s counterclaims in their  defamation and trade libel lawsuit of intimidation brought against a buyer who publicized Windermere lies and its refusal to honor its public commitment to the “highest ethical standards, uncompromising honesty and integrity,” franchiser Windermere Services Company and franchisee broker Windermere Real Estate/Northeast—and their lawyer, Matthew Davis of Demco Law Firm—argued in a motion for partial summary judgment that “It is true that Windermere Services Company was not itself a party to the first lawsuit, but as the owner of the Windermere tradename, it is in privity with Windermere Real Estate/Northeast.”

Black’s Law Dictionary defines privity as:

privity (priv-e-tee) 1. The connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property); mutuality of interest <privity of contract>

The court agreed with Windermere’s argument and granted its motion. But when it was clear Windermere would face a jury, it voluntarily dismissed its own lawsuit under CR 41, after first pressuring the defendant without success to be silent and sign away his protected speech rights.

While this writer is not an attorney or legal expert, and this news coverage is not intended in any way to be legal advice, it has been noted that privity works both ways, and suggested that the court’s ruling on Windermere tradename privity could be interpreted or construed to mean that Windermere Services Company shares automatic mutual liability for any harmful act or violation of law committed by any Windermere franchisee broker, because the parties share the same tradename; and/or that ALL Windermere Network franchisee brokers share automatic mutual liability for ANY OTHER Windermere Network franchisee broker’s harmful act or violation of law, through sharing the same tradename. When you are damaged by any Windermere broker or agent, the entire Windermere Network may now be mutually liable.

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CALIFORNIA FRANCHISE INVESTMENT LAWCASE HISTORY:

In DOLLAR SYSTEMS, INC. v. AVCAR LEASING SYSTEMS, the Court RESCINDED THE FRANCHISE AGREEMENT, awarded restitution and damages, dismissed DSI’s breach of contract action, and awarded attorneys’ fees to franchisee Avcar, in part because “At the end of the meeting of June 15, 1984, DSI gave Schroff a document entitled "FTC DISCLOSURE STATEMENT," dated July 30, 1982. The document DID NOT DISCLOSE that Caruso and Francis were prohibited from offering or selling franchises in California because of their previous failure to comply with the registration requirements. THE DOCUMENT ALSO FAILED TO DISCLOSE THE EXISTENCE OF FIVE CIVIL ACTIONS INVOLVING DSI AND TWO 1982 WISCONSIN CRIMINAL CONVICTIONS FOR UNLAWFUL FRANCHISE SALES ACTIVITY, one for DSI, and one for Dollar Rent A Car- Wisconsin, Inc., a wholly owned DRACSI subsidiary. Download the case here. California Corporations Code—Fraudulent Practices 31201: "It is unlawful for any person to offer or sell a franchise in this state by means of any written or oral communication not enumerated in Section 31200 which includes an untrue statement of a material fact or OMITS TO STATE A MATERIAL FACT necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.

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AGGRESSIVE, HARDBALL LEGAL TACTICS:

WINDERMERE ABUSES THE LEGAL PROCESS THROUGH FILING FALSE AND MENDACIOUS LAWSUITS TO INTIMIDATE, BANKRUPT, SILENCE AND COERCE DAMAGED CUSTOMERS OUT OF THEIR CONSTITUTIONAL SPEECH RIGHTS

REALTY GIANT DEMANDS "DARK CLAUSE SETTLEMENT AGREEMENTS" THAT TERMINATE DAMAGED CUSTOMER SPEECH RIGHTS, BUT THEN RUNS AWAY AND VOLUNTARILY DISMISSES ITS OWN LAWSUIT WHEN VICTIMS WON'T SIGN...

As WindermereWatch proves, there are many Windermere victims—more all the time—and when those victims use the media to complain and warn others, franchiser Windermere Services Company and local franchise owners sue them for libel and defamation through specious lawsuits that are intended to intimidate and silence. Read one of the phony lawsuits here.

Then Windermere tries to coerce victims into signing a “dark clause settlement agreement” that permanently terminates their speech rights.

In the Mark and Carol DeCoursey case dark clause, Windermere even tried to dictate what the DeCourseys could say to other individuals in simple conversation: "The DeCourseys agree that they shall not communicate with any person about their dispute with Windermere unless asked, and if asked, will only state that they have resolved their claim to their satisfaction." Read the DeCoursey Case Dark Clause here.

And in another of its dark clauses, Windermere required "...that he will cease all efforts of any kind (c) to publicly state opinions or beliefs about Windermere Real Estate." Read the Kruger Case Dark Clause here.

This predatory legal tactic is known as abuse of process or malicious prosecution. When a victim refuses to sign, Windermere runs away and voluntarily dismisses its own lawsuit under Civil Rule 41—just before trial, after costing the victim years of distress and yet thousands more to defend against the false action.

In one example, franchisor Windermere Services Company served an outspoken victim a fallacious 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." Incredibly, Windermere implements both the aggression and arrogance to overtly and unabashedly order that a damaged customer it has falsely sued be unrepresented by counsel and resolve their dispute outside the very same legal system in which Windermere has brought suit against them.

In this day and age it all sounds so inconceivably Orwellian—but it's true.

"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

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FBI & U.S. ATTORNEY INVESTIGATE WINDERMERE COACHELLA VALLEY, CHARGED WITH PROFESSIONAL NEGLIGENCE, UNFAIR TRADE PRACTICES & OTHER CLAIMS IN $30 MILLION-PLUS DEAL—COMPLAINT ALLEGES WINDERMERE SERVICES IS AN "UNLICENSED ENTITY" FIFTH AMENDMENT CASE MANAGEMENT UPDATE: "...the following additional matters be considered or determined at the case management conference (specify): Fifth Amendment Privilege issue as to Peggy Shambaugh, defendant and major witness."

john jacobipaul drayna

Above L to R: (1) Joseph R. "Bob" Deville and (2) Bob Bennion of Windermere Services Southern California, Bennion & Deville Fine Homes, Inc., and Windermere Real Estate Coachella Valley. (3) Peggy Shambaugh, Realtor at Windermere Real Estate Coachella Valley, Indian Wells office. (4) Current Windermere Services Company governing persons John W. Jacobi, (5) Geoffrey P. Wood, (6) Jill Jacobi-Wood, (7) John O'Brien "OB"Jacobi, (8) attorney Paul Drayna—WSBA# 26636, (9) and Timothy Wissner.

ADDITIONAL CURRENT BENNION & DEVILLE FINE HOMES, WINDERMERE COACHELLA LAWSUITS:

 

BENNION & DEVILLE, DBA WINDERMERE REAL ESTATE COACHELLA VALLEY, SUED FOR CONSTRUCTIVE FRAUD AND OTHER CLAIMS

 

FEDERAL CASE: A&L PARTNERS, ANDREA MARQUEZ, JOSEPH R. DEVILLE, BOB BENNION, BENNION & DEVILLE FINE HOMES, SUED FOR TRADEMARK INFRINGEMENT

 

RELATED SIDEBAR: WINDERMERE PREFERRED LIVING, BREA, CALIFORNIA, CLAIMS TO BE WINDERMERE "PREFERRED PROPERTIESTM" IN FALSE AND PREDATORY WEBSITE TAKEDOWN LETTER WHILE SIMULTANEOUSLY BEING SUED FOR USING THE "PREFERRED PROPERTIES" PHRASE

 

WINDERMERE REAL ESTATE SERVICES COMPANY, WINDERMERE REAL ESTATE SOCAL, INC., and WINDERMERE REAL ESTATE COACHELLA VALLEY, SUED FOR WRONGFUL DEATH DUE TO NEGLIGENCE IN RENTAL HOME CHILD DROWNING

Andrea Turnage (left) of Windermere Real Estate, Indian Wells, California: "One of the worst experiences in real estate I've ever had..." and "...extremely unprofessional and unethical..." READ ANDREA'S REVIEW HERE

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ATTENTION AGENTS AND REALTY FRANCHISE OPERATORS: CONSIDERING A BUSINESS ASSOCIATION WITH WINDERMERE REAL ESTATE?

"In Retaliation Windermere Sought to Make the Litigation as Expensive and Time Consuming as Possible to Dissuade Mr. Rodriguez and other Agents from Asserting Claims against Windermere"

"On April 4, 2005, without explanation, Mr. Jacobsen terminated Mr. Rodriguez's agency with Windermere. CP 92. As part of the termination agreement, Mr. Jacobsen reviewed the files for five pending transactions and agreed that Mr. Rodriguez was entitled to one half of the listing commission on those transactions... In November 2005, however, before the Brady transaction closed, Mr. Jacobsen unilaterally changed the commission disbursement form in a way that eliminated Mr. Rodriguez's share of the listing commission. CP 92; TE 14. Neither Mr. Jacobsen nor Ms. Thompson ever told Mr. Rodriguez of the change or that he would not receive his $16,800 share of the commission from the Brady transaction. CP 94." Windermere Wall Street's Richard "Jake" Jacobsen (shown left).

THE PERIL IN BEING A WINDERMERE AGENT: READ EX-WINDERMERE AGENT ROBERTO RODRIGUEZ'S RESPONDENT'S BRIEF HERE

WINDERMERE SERVICES COMPANY v. MAXWELL (FORMER WINDERMERE PCR OWNER) UPDATE: VOLUNTARY DISMISSAL OF CLAIMS FILED

A REAL ESTATE FRANCHISE OWNER'S ULTRA-NIGHTMARE: "...Jacobi decided to open another Windermere office in the territory in which WPCR was operating..."

PLEADINGS AND THE ENTIRE SAGA OF WINDERMERE PUYALLUP CANYON ROAD

 

WINDERMERE EAST SUES ITS OWN AGENT—DEFAULT JUDGMENT OF $76, 535.47

WINDERMERE SERVICES LITIGATION with DISGRUNTLED FORMER FRANCHISEES

21 Former California Offices Drop the Windermere Brand

 

Get the Popular Windermere Franchise News here

 

8-Office Powerhouse Quits the Windermere Brand: Windermere Exclusive Properties Changes to Real Living Lifestyles

 

THE WINDERMERE RELOCATION RAPE CASE • COMPLETE LIST OF PIERCE COUNTY, WASHINGTON, WINDERMERE CASES

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paul draynaLITIGATION WITH WINDERMERE REAL ESTATE? DON'T EXPECT HONEST, AVERAGE LEGAL COMPETENCE—OR EVEN COMMON DECENCY: Opposing counsel and legal professionals should take note of Windermere Services Company and Demco Law Firm Lying Lawyers and Legal Process Cheats, Paul Stephen Drayna and Matthew F. Davis (shown left, respectively), by clicking here for salient review of these two princes of process abuse and unethical misconduct. Holding lawyers in low esteem has become a national pastime, and absolutely craven, crooked characters like Drayna and Davis are just a couple of the many reasons why. Windermere must often be compelled by courts to provide or participate in discovery—as in this example. For information on Windermere Services Company's privity with franchises—click here.

PROSPECTIVE WINDERMERE FRANCHISEES and RENEWING WINDERMERE FRANCHISEES HAVE A RIGHT TO KNOW: John W. Jacobi and franchisor WSC demand fees and commissions, but won't protect the brand image that Windermere franchise owners pay for—as graphically evidenced by this website. Prospective and renewing Windermere franchisees should click here for FEDERAL TRADE COMMISSION RULES, PART 436, FRANCHISOR DISCLOSURE REQUIREMENTS.

 

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

• WINDERMERE SERVICES COUNTERSUED FOR TRADE LIBEL AND VIOLATION OF THE CALIFORNIA UNFAIR/UNLAWFUL COMPETITION LAW •

 

Cross-Complaint filed by former Windermere Exclusive Properties franchisees alleges:

"Cross-Defendants [Windermere Real Estate Services Company and Windermere Services Southern California] Engage in a Scheme to Disrupt and Destroy Cross-Complainants' Current Businesses and Future Business Endeavors"

 

ALLEGATIONS FROM THE CROSS-COMPLAINT: "17. From the time that the Cross-Complainants exercised their contractual right to terminate the Franchise License Agreement, and while Cross-Complainants were still operating as Windermere franchisees, Cross-Defendants engaged in a pattern of unlawful and predatory acts designed to specifically harm Cross-Complainants and destroy their businesses as Windermere franchisees and their future business endeavors. 18. Namely, Windermere SoCal actively solicited Cross-Complainants' agents and managers and did, in fact, hire some of these individuals away from Cross-Complainants. This act is specifically prohibited by Windermere. These newly retained agents and managers were hired away to work at a Windermere franchise that is owned or operated by Windermere SoCal and which was located 1/2 of a block across the street from one of Cross-Complainants' Windermere franchises." REPORT AND CROSS-COMPLAINT HERE

 

SIMILAR CASE OF INTEREST: Maxwell Answer and Counterclaims allege: “Plaintiff's [Windermere Services] claims are barred by Plaintiff’s fraud, duress, and unclean hands.”

 

$4,000,000 in Damages and Violation of Washington Franchise Investment Protection Act alleged: "16. After WPCR opened the Tacoma office as agreed, Jacobi and WSC agreed to the opening of another WSC franchise located only blocks away from WPCR’s Tacoma office. This was done without the knowledge or consent of Maxwell." and... "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 THIS REPORT HERE

 

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• WINDERMERE SUED FOR UNFAIR TRADE PRACTICES •

Bennion & Deville Fine Homes, Windermere Real Estate Coachella Valley and Realtor Peggy Shambaugh, sued for Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Breach of Fiduciary Duty and Professional Negligence in $30 million-plus deal. Windermere Services sued for Breach of Fiduciary Duty, Professional Negligence and Unfair Trade Practices. Complaint alleges Windermere Services is an "unlicensed entity."

 

FROM THE COMPLAINT: "Windermere Coachella was and is licensed by the State of California as a real estate broker, doing business as a real estate broker and operating an unlawful franchise arrangement with defendant Windermere Real Estate Services Company ("Windermere Services") from which both Windermere Coachella and Windermere Services have unlawfully split over a million dollars in commissions from real estate transactions within the State of California."

"(d) Windermere Coachella's unlawfully sharing real estate commissions with Windermere Services, an unlicensed entity, on not only the Echo Trail property transaction but also, on information and belief, various other real estate transactions with consumers other than Plaintiffs throughout the State of California, all in violation of California law. 66. On information and belief, Windermere Coachella (and its owner, operator, manager and alter ego Deville) and Windermere Services engaged in the above-mentioned acts for the purpose of injuring Plaintiffs and other prospective purchasers of real property similarly situated. By virtue of the conduct alleged herein, there is a likelihood of actual and pernicious confusion and an unfair and inequitable advantage for any real estate broker employing the aforementioned business model or device, and based on the unlawful, unfair and fraudulent practices of these Defendants, a permanent injunction should issue to prevent these Defendants from engaging in such unlawful and fraudulent conduct and restitution should be ordered from these Defendants of all unlawful commissions derived from the real estate transactions involving Plaintiffs." REPORT HERE

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 DROPPING 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 to know 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.

Like the former Las Vegas Windermere brokerage, Windermere Summerlin, “…one of Las Vegas’ top-selling real estate offices…” which 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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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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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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Franchiser Windermere Services Company Sues Windermere Puyallup Canyon Road owner Joe Maxwell and his marital community for default on “Unconditional Guaranty of Payment” Promissory Note

Complaint in case number: 10-2-36192-8 SEA, filed in King County Superior Court on October 12, 2010.

Under “1. PARTIES” the Complaint states in part:

“2. Defendant ELDON J. MAXWELL, II, is a married man a/k/a JOE MAXWELL, a/k/a JOSEPH MAXWELL, residing in Spanaway, Washington.”

Under “III FACTS” the Complaint in part states:

“5.On or about December 1, 2008, Defendant ELDON J. MAXWELL, II, (hereafter “MAXWELL”) executed an “Unconditional Guaranty of Payment” (the “Guaranty”) dated November 7, 2008, a true and correct copy of which is attached hereto as Exhibit 1.

6. Under the Guaranty MAXWELL agreed, individually and on behalf of his marital community, to unconditionally guarantee the performance of payment  of a certain Promissory Note dated November 7, 2008 in the original principal amount of $185, 257.66 (the “Note”).

7. Windermere-Puyallup/Canyon Road, LLC (WPCR) was the maker of the Note. MAXWELL signed the note as Manager of WPCR. A true and correct copy of the Note is attached hereto as Exhibit 2.

8. In executing the Note and Guaranty MAXWELL was acting in furtherance of the interests of his business, the profits of which accrued to the benefit of MAXWELL’S marital community

9. The Note required monthly payments of $3,581.55 starting in December 2009 and continuing monthly through November 2014.

10. The Note provided for a late fee of 10% on any payment more than ten days late. The last five payments by WPCR (December 2009 through April 2010 inclusive) under the note were all more than ten days late. Late charges were therefore deducted from those payments and the balance applied to principal and interest as provided in the Note.

 11. WPCR has failed to make six payments as required by the Note (payments for May through October 2010, inclusive).  As of the date of this Complaint accrued and unpaid late charges of $2,148.93 are owing to WSC. See attached Exhibit 4. Additional late charges of $358.16 continue to accrue for each month that a payment is not timely made.

12. The last payment was received from WPCR on April 30, 2010. After application of that payment there remained a principal balance owing under the Note of $172,465.63. See attached Exhibit 4.

13. The Note provided for interest at six percent (6%) per annum.

14. The Note and Guaranty contain contractual attorney fee provisions under which the Maker and the Guarantors are liable for attorney fees and costs incurred by WSC in this action.

Under “a. IV CAUSES OF ACTION” the Complaint further states:

15. WPCR is in default under the terms of the Note for failure to make payments as required, and WSC has declared all outstanding sums owed under the Note to be immediately due and payable.

16. MAXWELL and his marital community are liable as guarantors under the Guaranty for all amounts owing by WPCR to WSC.

Under “V. PRAYER FOR RELIEF” the Complaint continues:

“Wherefore Plaintiff now requests judgment against all Maxwell and his marital community in the following amounts:

A. $172, 465.63, representing the principal amount owing on the Note, plus pre-judgment interest on said amount at the rate of six percent per annum (6%) from April 30, 2010 through the date of judgment.

B. $2,148.93 for accrued and unpaid late charges for the months of May – October, 2010, inclusive, plus and additional $358.16 for each additional month that payment is not made until the date of judgment.

C. Attorney’s fees and costs incurred by WSC in this matter, as provided by the Note and Guaranty.

D. Post-judgment interest on the total judgment amount at the statutory rate.

E. Such other relief as the Court may deem just and proper.

Dated October 12, 2010
By Paul S. Drayna, WSBA #26636
Attorney for Plaintiff

Maxwell Defendants’ Counsel filed a NOTICE OF APPEARANCE on November 1, 2010.

Windermere Services Company filed a MOTION FOR DEFAULT AND DEFAULT JUDGMENT on November 4, 2010.

 

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Maxwell Answer and Counterclaims: “Plaintiff's claims are barred by Plaintiff’s fraud, duress, and unclean hands.” $4,000,000 in Damages and Violation of Washington Franchise Investment Protection Act alleged.

In Case No. 10-2-36192-8 SEA, filed November 16, 2010 in King County Superior Court.

DEFENDANTS ELDON J. MAXWELL, II AND JANE DOE MAXWELL’S ANSWER TO COMPLAINT AND COUNTERCLAIMS

The Answer to Complaint and Counterclaims states in part under:

II. AFFIRMATIVE DEFENSES

In further answer to the Verified Complaint and as affirmative defense thereto, Defendants allege:

1. The Complaint fails to state a claim upon which relief can be granted.

2. Defendants have not been properly served with process and the courts lacks personal jurisdiction.

3. The alleged Note and Guarantee are unconscionable and unenforceable.

4.The terms and conditions of the alleged Note and Guarantee do not reflect the understanding and intent of Defendants and were misrepresented by Plaintiff.

5. The Note and Guarantee are unenforceable due to the breach by Plaintiff of the terms of the written operating agreement for Windermere Puyallup-Canyon Road, LLC which required all members to guarantee any notes or other indebtedness of the company.

6. The Note and Guarantee violate the Washington Franchise Investment Protection Act and are unenforceable.

7. Plaintiff’s claims are barred by Plaintiff’s fraud, duress, and unclean hands.

8. Plaintiffs claims are subject to set-off for any damages Defendants are awarded on their counterclaims alleged herein.

9. Plaintiff’s claims are barred by failure of consideration.

10. Plaintiff’s claims are barred by accord and satisfaction.

11. Plaintiffs claims are barred by waiver.

The Answer to Complaint and Counterclaims continues in part under:

III. COUNTERCLAIMS

1. Maxwell is an individual residing in Pierce County, Washington.

2. Maxwell is the President and shareholder of Maxwell & Associates, Inc. (“MAI”). Maxwell is also a licensed real estate broker and the designated broker for Windermere Puyallup-Canyon Road, LLC (“WPCR”).

3. MAI is the majority owner of WPCR and Maxwell is its Manager.

4. WPCR is a real estate brokerage formed on or about September 11, 2000. The original members of WPCR were MAI, P & U Capital Partners I, LLC (“PCP”), Windermere South, Inc. and John Jacobi (“Jacobi”). Jacobi was the President and founder of WSC. The members entered into a written Operating Agreement for WPCR (“Operating Agreement”) on or about January 17, 2001.

5. WPCR was formed to operate as a WSC real estate franchise. WSC and its attorneys prepared the documents necessary to form WPCR including the WPCR Operating Agreement entered into by MAI and other members of WPCR.

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.

7. Maxwell was the manager of WPCR and was responsible for the day-to-day operations of WPCR. As a result, of Maxwell’s efforts in operating WPCR, WPCR become a very successful WSC franchise and was the largest WSC franchise in the State of Washington.

8. Maxwell and another WPCR member, Michael Ratcliffe, (“Ratcliffe”), met with WSC’s representatives to discuss opening another WSC office in Tacoma. WSC and Jacobi told Maxwell and Ratcliffe they must buyout PCP’s membership interest in WPCR before WSC allow them to open a WSC office in Tacoma.

9. WSC loaned WPCR approximately $550,000 to purchase PCP’s interest in WPCR with the condition that WPCR would immediately obtain financing to repay the WSC loan.

10. In late 2005, the purchase of PCP’s interest in WPCR was completed and WPCR borrowed approximately $550,000 from U.S. Bank to repay WSC.

11. In 2006, WPCR opened another WSC office in downtown Tacoma as agreed with WSC. WPCR incurred substantial start-up expenses for opening the Tacoma office.

12. Before the buyout of PCP and the opening of the Tacoma office, WPCR had no long-term debt and was very profitable.

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.

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.

15. Maxwell made repeated verbal and written complaints to WSC and Jacobi about the decision to open the office in Graham. Maxwell filed a formal written complaint with WSC’s internal dispute resolution board. WSC and Jacobi did not take any action in response to Maxwell’s complaints.

16. After WPCR opened the Tacoma office as agreed, Jacobi and WSC agreed to the opening of another WSC franchise located only blocks away from WPCR’s Tacoma office. This was done without the knowledge or consent of Maxwell.

17. WSC and Jacobi’s actions in directing Maxwell and Ratcliffe to buy PCP’s interest in WPCR and borrow over $550,000 to pay for PCP’s interest, opening the WSC office in Graham, and allowing another WSC franchise to open in the same location a WPCR’s Tacoma office, severely damaged WPCR’s business and WPCR’s financial condition.

18. Despite the impairment to WPCR’s business and financial condition, WSC demanded WPCR pay it license fees in a timely manner or its franchise would be terminated.

19. The WPCR Operating Agreement requires all members to personally guarantee any loan or other obligation of the company that another member is required to personally guarantee.

20. Maxwell and Ratcliffe were required to sign personal guarantees of WPCR’s obligation to Bank of America. WSC demanded that Maxwell and Ratcliffe sign personal guarantees of license fees allegedly due WSC, including the Note and Guarantee on which WSC is seeking to collect in this action.

21. Despite Jacobi’s contractual obligation to personally guarantee WPCR obligations to Bank of America and WSC, and demands by members to do so, WSC did not seek personal guarantees from Jacobi and Jacobi failed to sign personal guarantees of these WPCR’s obligations.

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.

23. After WSC terminated WPCR’s franchise agreement, Maxwell entered into a franchise agreement with Better Homes and Gardens (“BHG”). When WSC learned Maxwell had entered into the BHG franchise agreement, WSC’s corporate counsel, Paul Drayna, sent an email directly to BHG’s corporate counsel. Mr. Drayna’s email stated that WSC had recently terminated WPCR’s franchise for failure to pay license fees and other amounts and that WSC reserved reserved all rights to pursue all amounts owing against Maxwell personally.

24. Mr. Drayna’s email to BHG’s counsel also informed them that Jacobi, the founder and Chairman of the Board of WSC, was also a member of WPCR, and included portions of the WPCR Operating Agreement which gave Jacobi “veto” power. Mr. Drayna further warned BHG that Jacobi was preparing to commence legal action against Maxwell and his new company.

A. First Counterclaim—Violation of Washington Franchise Investment Protection Act

25. The acts of Counterdefendants WSC alleged hereinabove constitute numerous violations of the Washington Franchise Investment Protection Act (“FIPA”). As a proximate result of Counterdefendants violations of FIPA, Counterclaimant has suffered damages in excess of $4,000,000.

B. Second Counterclaim—Interference with Business Relations

26. The acts of Counterdefendant alleged hereinabove constitute intentional interference with the business and contractual relations of Counterclaimant. As a proximate result, Counterclaimant has suffered damaged in excess of $4,000,000.

C. Third Counterclaim—Unfair Competition

27. The acts of Counterdefendant alleged hereinabove constitute unfair and deceptive acts and practices in violation of RCW 19.86. As a proximate result, Counterclaimant has suffered damage in excess of $4,000,000.

D. Fourth Counterclaim—Breach of Duty of Good Faith and Fair Dealing

28. Counterdefendant owed Counterclaimant a duty to act in good faith and treat Counterclaimant fairly. The actions of Counterdefendant alleged hereinabove constitute numerous breaches of its duty of good faith and fair dealing. As a proximate result, Counterclaimant has suffered damages in excess of $4,000,000.

The Answer to Complaint and Counterclaims continues in part under:

IV. PRAYER FOR RELEIF

ii) For an award of damages against Plaintiff and Counterdefendant Windermere Real Estate Services Company in an amount in excess of $4,000,000;

iii) That the amount of said damages be trebled pursuant to RCW 19.100.190;

 

Download the entire Answer to Complaint and Counterclaims here.

 

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CALIFORNIA FRANCHISE INVESTMENT LAW:

CASE HISTORY

In DOLLAR SYSTEMS, INC. v. AVCAR LEASING SYSTEMS, the Court RESCINDED THE FRANCHISE AGREEMENT, awarded restitution and damages, dismissed DSI’s breach of contract action, and awarded attorneys’ fees to franchisee Avcar, in part because “At the end of the meeting of June 15, 1984, DSI gave Schroff a document entitled "FTC DISCLOSURE STATEMENT," dated July 30, 1982. The document DID NOT DISCLOSE that Caruso and Francis were prohibited from offering or selling franchises in California because of their previous failure to comply with the registration requirements. THE DOCUMENT ALSO FAILED TO DISCLOSE THE EXISTENCE OF FIVE CIVIL ACTIONS INVOLVING DSI AND TWO 1982 WISCONSIN CRIMINAL CONVICTIONS FOR UNLAWFUL FRANCHISE SALES ACTIVITY, one for DSI, and one for Dollar Rent-A-Car — Wisconsin, Inc., a wholly owned DRACSI subsidiary. Download the case here. California Corporations Code—Fraudulent Practices 31201: "It is unlawful for any person to offer or sell a franchise in this state by means of any written or oral communication not enumerated in Section 31200 which includes an untrue statement of a material fact or OMITS TO STATE A MATERIAL FACT necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.

 

 

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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.

john jacobipaul drayna

(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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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.

 

paul draynajohn jacobi

(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.

 

________________________________

 

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.

john jacobiBefore 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.

 

jill jacobi woodGoverning 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.

 

 

paul draynaWindermere 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

 

john demcoAttorney 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.

 

matthew davisWindermereWatch 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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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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Title 16--Commercial Practices; Revised as of January 1, 1986

CHAPTER I--FEDERAL TRADE COMMISSION
SUBCHAPTER D--TRADE REGULATION RULES

PART 436--DISCLOSURE REQUIREMENTS AND PROHIBITIONS CONCERNING FRANCHISING AND BUSINESS OPPORTUNITY VENTURES

16 CFR 436.1

In connection with the advertising, offering, licensing, contracting, sale, or other promotion in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, of any franchise, or any relationship which is represented either orally or in writing to be a franchise, it is an unfair or deceptive act or practice within the meaning of section 5 of that Act for any franchisor or franchise broker:

(a) To fail to furnish any prospective franchisee with the following information accurately, clearly, and concisely stated, in a legible, written document at the earlier of the "time for making of disclosures"or the first "personal meeting":

(1) (i) The official name and address and principal place of business of the franchisor, and of the parent firm or holding company of the franchisor, if any;

(ii) The name under which the franchisor is doing or intends to do business; and

(iii) The trademarks, trade names, service marks, advertising or other commercial symbols (hereinafter collectively referred to as "marks") which identify the goods, commodities, or services to be offered, sold, or distributed by the prospective franchisee, or under which the prospective franchisee will be operating.

(2) The business experience during the past 5 years, stated individually, of each of the franchisor's current directors and executive officers (including, and hereinafter to include, the chief executive and chief operating officer, financial, franchise marketing, training and service officers). With regard to each person listed, those persons' principal occupations and employers must be included.

(3) The business experience of the franchisor and the franchisor's parent firm (if any), including the length of time each:

(i) Has conducted a business of the type to be operated by the franchisee;

(ii) has offered or sold a franchise for such business;

(iii) has conducted a business or offered or sold a franchise for a business:

(A) operating under a name using any mark set forth under paragraph (a)(1)(iii) of this section, or

(B) involving the sale, offering, or distribution of goods, commodities, or services which are identified by any mark set forth under paragraph (a)(1)(iii) of this section; and
(iv) has offered for sale or sold franchises in other lines of business, together with a description of such other lines of business.

(4) A statement disclosing who, if any, of the persons listed in paragraphs (a) (2) and (3) of this section:

(i) Has, at any time during the previous seven fiscal years, been convicted of a felony or pleaded nolo contendere to a felony charge if the felony involved fraud (including violation of any franchise law, or unfair or deceptive practices law), embezzlement, fraudulent conversion, misappropriation of property, or restraint of trade;

(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:

(A) involving allegations of fraud (including violation of any franchise law, or unfair or deceptive practices law), embezzlement, fraudulent conversion, misappropriation of property, or restraint of trade, or

(B) which was brought by a present or former franchisee or franchisees and which involves or involved the franchise relationship; Provided, however, That only material individual civil actions need be so listed pursuant to this paragraph (4)(ii), including any group of civil actions which, irrespective of the materiality of any single such action, in the aggregate is material;

(iii) Is subject to any currently effective State or Federal agency or court injunctive or restrictive order, or is a party to a proceeding currently pending in which such order is sought, relating to or affecting franchise activities or the franchisor-franchisee relationship, or involving fraud (including violation of any franchise law, or unfair or deceptive practices law), embezzlement, fraudulent conversion, misappropriation of property, or restraint of trade.

Such statement shall set forth the identity and location of the court or agency; the date of conviction, judgment, or decision; the penalty imposed; the damages assessed; the terms of settlement or the terms of the order; and the date, nature, and issuer of each such order or ruling. A franchisor may include a summary opinion of counsel as to any pending litigation, but only if counsel's consent to the use of such opinion is included in the disclosure statement.

(5) A statement disclosing who, if any, of the persons listed in paragraphs (a) (2) and (3) of this section at any time during the previous 7fiscal years has:

(i) Filed in bankruptcy;

(ii) Been adjudged bankrupt;

(iii) Been reorganized due to insolvency; or

(iv) Been a principal, director, executive officer, or partner of any other person that has so filed or was so adjudged or reorganized, during or within 1 year after the period that such person held such position in such other person. If so, the name and location of the person having so filed, or having been so adjudged or reorganized, the date thereof, and any other material facts relating thereto, shall be set forth.

(6) A factual description of the franchise offered to be sold by the franchisor.

(7) A statement of the total funds which must be paid by the franchisee to the franchisor or to a person affiliated with the franchisor, or which the franchisor or such affiliated person imposes or collects in whole or in part on behalf of a third party, in order to obtain or commence the franchise operation, such as initial franchise fees, deposits, down payments, prepaid rent, and equipment and inventory purchases. If all or part of these fees or deposits are returnable under certain conditions, these conditions shall be set forth; and if not returnable, such fact shall be disclosed.

(8) A statement describing any recurring funds required to be paid, in connection with carrying on the franchise business, by the franchisee to the franchisor or to a person affiliated with the franchisor, or which the franchisor or such affiliated person imposes or collects in whole or in part on behalf of a third party, including, but not limited to, royalty, lease, advertising, training, and sign rental fees, and equipment or inventory purchases.

(9) A statement setting forth the name of each person (including the franchisor) the franchisee is directly or indirectly required or advised to do business with by the franchisor, where such persons are affiliated with the franchisor.

(10) A statement describing any real estate, services, supplies, products, inventories, signs, fixtures, or equipment relating to the establishment or the operation of the franchise business which the franchisee is directly or indirectly required by the franchisor to purchase, lease or rent; and if such purchases, leases or rentals must be made from specific persons (including the franchisor) , a list of the names and addresses of each such person. Such list may be made in a separate document delivered to the prospective franchisee with the prospectus if the existence of such separate document is disclosed in the prospectus.

(11) A description of the basis for calculating, and, if such information is readily available, the actual amount of, any revenue or other consideration to be received by the franchisor or persons affiliated with the franchisor from suppliers to the prospective franchisee in consideration for goods or services which the franchisor requires or advises the franchisee to obtain from such suppliers.

(12) (i) A statement of all the material terms and conditions of any financing arrangement offered directly or indirectly by the franchisor, or any person affiliated with the franchisor, to the prospective franchisee; and

(ii) A description of the terms by which any payment is to be received by the franchisor from (A) any person offering financing to a prospective franchisee; and (B) any person arranging for financing for a prospective franchisee.

(13) A statement describing the material facts of whether, by the terms of the franchise agreement or other device or practice, the franchisee is:

(i) Limited in the goods or services he or she may offer for sale;

(ii) Limited in the customers to whom he or she may sell such goods or services;

(iii) Limited in the geographic area in which he or she may offer for sale r sell goods or services; or

(iv) Granted territorial protection by the franchisor, by which, with respect to a territory or area,

(A) the franchisor will not establish another, or more than any fixed number of, franchises or company-owned outlets, either operating under, or selling, offering or distributing goods, commodities or services, identified by any mark set forth under paragraph (a)(1)(iii) of this section; or

(B) the franchisor or its parent will not establish other franchises or company-owned outlets selling or leasing the same or similar products or services under a different trade name, trademark, service mark, advertising or other commercial symbol.

(14) A statement of the extent to which the franchisor requires the franchisee (or, if the franchisee is a corporation, any person affiliated with the franchisee) to participate personally in the direct operation of the franchise.

(15) A statement disclosing, with respect to the franchise agreement and any related agreements:

(i) The term (i.e., duration of arrangement), if any, of such agreement, and whether such term is or may be affected by any agreement (including leases or subleases) other than the one from which such term arises;

(ii) The conditions under which the franchisee may renew or extend;

(iii) The conditions under which the franchisor may refuse to renew or extend;

(iv) The conditions under which the franchisee may terminate;

(v) The conditions under which the franchisor may terminate;

(vi) The obligations (including lease or sublease obligations) of the franchisee after termination of the franchise by the franchisor, and the obligations of the franchisee (including lease or sublease obligations) after termination of the franchise by the franchisee and after the expiration of the franchise;

(vii) The franchisee's interest upon termination of the franchise, or upon refusal to renew or extend the franchise, whether by the franchisor or by the franchisee;

(viii) The conditions under which the franchisor may repurchase, whether by right of first refusal or at the option of the franchisor (and if the franchisor has the option to repurchase the franchise, whether there will be an independent appraisal of the franchise, whether the repurchase price will be determined by a predetermined formula and whether there will be a recognition of goodwill or other intangibles associated therewith in there purchase price to be given the franchisee);

(ix) The conditions under which the franchisee may sell or assign all or any interest in the ownership of the franchise, or of the assets of the franchise business;

(x) The conditions under which the franchisor may sell or assign, in whole or in part, its interest under such agreements;

(xi) The conditions under which the franchisee may modify;

(xii) The conditions under which the franchisor may modify;

(xiii) The rights of the franchisee's heirs or personal representative upon the death or incapacity of the franchisee; and

(xiv) The provisions of any covenant not to compete.

(16) A statement disclosing, with respect to the franchisor and as to the particular named business being offered:

(i) The total number of franchises operating at the end of the preceding fiscal year;

(ii) The total number of company-owned outlets operating at the end of the preceding fiscal year;

(iii) The names, addresses, and telephone numbers of:

(A) The 10 franchised outlets of the named franchise business nearest the prospective franchisee's intended location; or

(B) all franchisees of the franchisor; or

(C) all franchisees of the franchisor in the State in which the prospective franchisee lives or where the proposed franchise is to be located, Provided, however, That there are more than 10 such franchisees. If the number of franchisees to be disclosed pursuant to paragraph (a)(16)(iii)(B) or (C) of this section exceeds 50, such listing may be made in a separate document delivered to the prospective franchisee with the prospectus if the existence of such separate document is disclosed in the prospectus;

(iv) The number of franchises voluntarily terminated or not renewed by franchisees within, or at the conclusion of, the term of the franchise agreement, during the preceding fiscal year;

(v) The number of franchises reacquired by purchase by the franchisor during the term of the franchise agreement, and upon the conclusion of the term of the franchise agreement, during the preceding fiscal year;

(vi) The number of franchises otherwise reacquired by the franchisor during the term of the franchise agreement, and upon the conclusion of the term of the franchise agreement, during the preceding fiscal year;

(vii) The number of franchises for which the franchisor refused renewal of the franchise agreement or other agreements relating to the franchise during the preceding fiscal year; and

(viii) The number of franchises that were canceled or terminated by the franchisor during the term of the franchise agreement, and upon conclusion of the term of the franchise agreement, during the preceding fiscal year.

With respect to the disclosures required by paragraphs (a)(16)(v), (vi), (vii), and (viii) of this section, the disclosure statement shall also include a general categorization of the reasons for such reacquisitions, refusals to renew or terminations, and the number falling within each such category, including but not limited to the following: failure to comply with quality control standards, failure to make sufficient sales, and other breaches of contract.

(17) (i) If site selection or approval thereof by the franchisor is involved in the franchise relationship, a statement disclosing the range of time that has elapsed between signing of franchise agreements or other agreements relating to the franchise and site selection, for agreements entered into during the preceding fiscal year; and

(ii) If operating franchise outlets are to be provided by the franchisor, a statement disclosing the range of time that has elapsed between the signing of franchise agreements or other agreements relating to the franchise and the commencement of the franchisee's business, for agreements entered into during the preceding fiscal year.

With respect to the disclosures required by paragraphs (a)(17)(i) and (ii) of this section, a franchisor may at its option also provide a distribution chart using meaningful classifications with respect to such ranges of time.

(18) If the franchisor offers an initial training program or informs the prospective franchisee that it intends to provide such person with initial training, a statement disclosing:

(i) The type and nature of such training;

(ii) The minimum amount, if any, of training that will be provided to a franchisee; and

(iii) The cost, if any, to be borne by the franchisee for the training to be provided, or for obtaining such training.

(19) If the name of a public figure is used in connection with a recommendation to purchase a franchise, or as a part of the name of the franchise operation, or if the public figure is stated to be involved with the management of the franchisor, a statement disclosing:

(i) The nature and extent of the public figure's involvement and obligations to the franchisor, including but not limited to the promotional assistance the public figure will provide to the franchisor and to the franchisee;

(ii) The total investment of the public figure in the franchise operation; and

(iii) The amount of any fee or fees the franchisee will be obligated to pay for such involvement or assistance provided by the public figure.

(20) (i) A balance sheet (statement of financial position) for the franchisor for the most recent fiscal year, and an income statement (statement of results of operations) and statement of changes in financial position for the franchisor for the most recent 3 fiscal years. Such statements are required to have been examined in accordance with generally accepted auditing standards by an independent certified or licensed public accountant.

Provided, however, That where a franchisor is a subsidiary of another corporation which is permitted under generally accepted accounting principles to prepare financial statements on a consolidated or combined statement basis, the above information may be submitted for the parent if: (A) the corresponding unaudited financial statements of the franchisor are also provided, and (B) the parent absolutely and irrevocably has agreed to guarantee all obligations of the subsidiary;

(ii) Unaudited statements shall be used only to the extent that audited statements have not been made, and provided that such statements are accompanied by a clear and conspicuous disclosure that they are unaudited. Statements shall be prepared on an audited basis as soon as practicable, but, at a minimum, financial statements for the first full fiscal year following the date on which the franchisor must first comply with this part shall contain a balance sheet opinion prepared by an independent certified or licensed public accountant, and financial statements for the following fiscal year shall be fully audited.

(21) All of the foregoing information in paragraphs (a) (1) through (20) of this section shall be contained in a single disclosure statement or prospectus, which shall not contain any materials or information other than that required by this part or by State law not preempted by this part. This does not preclude franchisors or franchise brokers from giving other nondeceptive information orally, visually, or in separate literature so long as such information is not contradictory to the information in the disclosure statement required by paragraph (a) of this section. The disclosure statement shall carry a cover sheet distinctively and conspicuously showing the name of the franchisor, the date of issuance of the disclosure statement, and the following notice imprinted thereon in upper and lower case bold-face type of not less than 12 point size:


Information for Prospective Franchisees
Required by Federal Trade Commission

* * *

To protect you, we've required your franchisor to give you this information. We haven't checked it, and don't know if it's correct. It should help you make up your mind. Study it carefully. While it includes some information about your contract, don't rely on it alone to understand your contract. Read all of your contract carefully. Buying a franchise is a complicated investment. Take your time to decide. If possible, show your contract and this information to an advisor, like a lawyer or an accountant. If you find anything important that's been left out, you should let us know about it. It may be against the law. There may also be laws on franchising in your state. Ask your state agencies about them.

FEDERAL TRADE COMMISSION, Washington, D.C.

Provided, That the obligation to furnish such disclosure statement shall be deemed to have been met for both the franchisor and the franchise broker if either such party furnishes the prospective franchisee with such disclosure statement.

(22) All information contained in the disclosure statement shall be current as of the close of the franchisor's most recent fiscal year. After the close of each fiscal year, the franchisor shall be given a period not exceeding 90 days to prepare a revised disclosure statement and, following such 90 days, may distribute only the revised prospectus and no other. The franchisor shall, within a reasonable time after the close of each quarter of the fiscal year, prepare revisions to be attached to the disclosure statement to reflect any material change in the franchisor or relating to the franchise business of the franchisor, about which the franchisor or franchise broker, or any agent, representative, or employee thereof, knows or should know. Each prospective franchisee shall have in his or her possession, at the "time for making of disclosures," the disclosure statement and quarterly revision for the period most recent to the "time for making of disclosures" and available at that time. Information which is required to be audited pursuant to paragraph (a)(20) of this section is not required to be audited for quarterly revisions, Provided, however, That the unaudited information be accompanied by a statement in immediate conjunction there with that clearly and conspicuously discloses that such information has not been audited.

(23) A table of contents shall be included within the disclosure statement.

(24) The disclosure statement shall include a comment which either positively or negatively responds to each disclosure item required to be in the disclosure statement, by use of a statement which fully incorporates the information required by the item. Each disclosure item therein must be preceded by the appropriate heading, as set forth in Note 3 of this part.

(b) To make any oral, written, or visual representation to a prospective franchisee which states a specific level of potential sales, income, gross or net profit for that prospective franchisee, or which states other facts which suggest such a specific level, unless:

(1) At the time such representation is made, such representation is relevant to the geographic market in which the franchise is to be located;

(2) At the time such representation is made, a reasonable basis exists for such representation and the franchisor has in its possession material which constitutes a reasonable basis for such representation, and such material is made available to any prospective franchisee and to the Commission or its staff upon reasonable demand.

Provided, further, That in immediate conjunction with such representation, the franchisor shall disclose in a clear and conspicuous manner that such material is available to the prospective franchisee; and Provided, however, That no provision within paragraph (b) of this section shall be construed as requiring the disclosure to any prospective franchisee of the identity of any specific franchisee or of information reasonably likely to lead to the disclosure of such person's identity; and Provided, further, That no additional representation as to a prospective franchisee's potential sales, income, or profits may be made later than the "time for making of disclosures";

(3) Such representation is set forth in detail along with the material bases and assumptions therefor in a single legible written document whose text accurately, clearly and concisely discloses such information, and none other than that provided for by this part or by State law not preempted by this part. Each prospective franchisee to whom the representation is made shall be furnished with such document no later than the "time for making of disclosures"; Provided, however, That if the representation is made at or prior to a "personal meeting" and such meeting occurs before the "time for making of disclosures", the document shall be furnished to the prospective franchisee to whom the representation is made at that "personal meeting";

(4) The following statement is clearly and conspicuously disclosed in the document described by paragraph (b)(3) of this section in immediate conjunction with such representation and in not less than twelve point upper and lower-case boldface type;

CAUTION

These figures are only estimates of what we think you may earn. There is no assurance you'll do as well. If you rely upon our figures, you must accept the risk of not doing as well.

(5) The following information is clearly and conspicuously disclose in the document described by paragraph (b)(3) of this section in immediate conjunction with such representation:

(i) The number and percentage of outlets of the named franchise business which are located in the geographic markets that form the basis for any such representation and which are known to the franchisor or franchise broker to have earned or made at least the same sales, income, or profits during a period of corresponding length in the immediate past as those potential sales, income, or profits represented; and

(ii) The beginning and ending dates for the corresponding time period referred to by paragraph (b)(5)(i) of this section, Provided, however, That any franchisor without prior franchising experience as to the named franchise business so indicate such lack of experience in the document described in paragraph (b)(3) of this section. Except, That representations of the sales, income or profits of existing franchise outlets need not comply with this paragraph (b).

(c) To make any oral, written or visual representation to a prospective franchisee which states a specific level of sales, income, gross or net profits of existing outlets (whether franchised or company-owned) of the named franchise business, or which states other facts which suggest such a specific level, unless:

(1) At the time such representation is made, such representation is relevant to the geographic market in which the franchise is to be located;

(2) At the time such representation is made, a reasonable basis exists for such representation and the franchisor has in its possession material which constitutes a reasonable basis for such representation, and such material is made available to any prospective franchisee and to the Commission or its staff upon reasonable demand;

Provided, however, That in immediate conjunction with such representation, the franchisor discloses in a clear and conspicuous manner that such material is available to the prospective franchisee; and Provided, further, That no provision within paragraph (c) of this section shall be construed as requiring the disclosure to any prospective franchisee of the identity of any specific franchisee or of information reasonably likely to lead to the disclosure of such person's identity; and Provided, further, That no additional representation as to the sales, income, or gross or net profits of existing outlets (whether franchised or company-owned) of the named franchise business may be made later than the "time for making of disclosures";

(3) Such representation is set forth in detail along with the material bases and assumptions therefor in a single legible written document which accurately, clearly and concisely discloses such information, and none other than that provided for by this part or by State law not preempted by this part. Each prospective franchisee to whom the representation is made shall be furnished with such document no later than the "time for making of disclosures",

Provided, however, That if the representation is made at or prior to a "personal meeting" and such meeting occurs before the "time for making of disclosures," the document shall be furnished to the prospective franchisee to whom the representation is made at that "personal meeting";

(4) The underlying data on which the representation is based have been prepared in accordance with generally accepted accounting principles;

(5) The following statement is clearly and conspicuously disclosed in the document described by paragraph (c)(3) of this section in immediate conjunction with such representation, and in not less than twelve point upper and lower case boldface type:

CAUTION

Some outlets have [sold] [earned] this amount. There is no assurance you'll do as well. If you rely upon our figures; you must accept the risk of not doing as well.

(6) The following information is clearly and conspicuously disclosed in the document described by paragraph (c)(3) of this section in immediate conjunction with such representation:

(i) The number and percentage of outlets of the named franchise business which are located in the geographic markets that form the basis for any such representation and which are known to the franchisor or franchise broker to have earned or made at least the same sales, income, or profits during a period of corresponding length in the immediate past as those sales, income, or profits represented; and

(ii) The beginning and ending dates for the corresponding time period referred to by paragraph (c)(6)(i) of this section,

Provided, however, That any franchisor without prior franchising experience as to the named franchise business so indicate such lack of experience in the document described in paragraph (c)(3) of this section.

(d) To fail to provide the following information within the document(s) required by paragraphs (b)(3) and (c)(3) of this section whenever any representation is made to a prospective franchisee regarding its potential sales, income, or profits, or the sales, income, gross or net profits of existing outlets (whether franchised or company-owned) of the named franchise business:

(1) A cover sheet distinctively and conspicuously showing the name of the franchisor, the date of issuance of the document and the following notice imprinted thereon in upper and lower case boldface type of not less than twelve point size:

INFORMATION FOR PROSPECTIVE FRANCHISEES ABOUT FRANCHISE [SALES] [INCOME] [PROFIT] REQUIRED BY THE FEDERAL TRADE COMMISSION.

To protect you, we've required the franchisor to give you this information. We haven't checked it and don't know if it's correct. Study these facts and figures carefully. If possible, show them to someone who can advise you, like a lawyer or an accountant. Then take your time and think it over.

If you find anything you think may be wrong or anything important that's been left out, let us know about it. It may be against the law.

There may also be laws on franchising in your State. Ask your State agencies about them.

FEDERAL TRADE COMMISSION, Washington, D.C.

(2) A table of contents.

Provided, however, That each prospective franchisee to whom the representation is made shall be notified at the "time for making of disclosures" of any material change (about which the franchisor, franchise broker, or any of the agents, representatives, or employees thereof, knows or should know) in the information contained in the document(s) described by paragraphs (b)(3) and (c)(3) of this section.

(e) To make any oral, written, or visual representation for general dissemination (not otherwise covered by paragraph (b) or (c) of this section) which states a specific level of sales, income, gross or net profits, either actual or potential, of existing or prospective outlets (whether franchised or company-owned) of the named franchise business or which states other facts which suggest such a specific level, unless:

(1) At the time such representation is made, a reasonable basis exists for such representation and the franchisor has in its possession material which constitutes a reasonable basis for such representation and which is made available to the Commission or its staff upon reasonable demand;

(2) The underlying data on which each representation of sales, income or profit for existing outlets is based have been prepared in accordance with generally accepted accounting principles;

(3) In immediate conjunction with such representation, there shall be clearly and conspicuously disclosed the number and percentage of outlets of the named franchise business which the franchisor or the franchise broker knows to have earned or made at least the same sales, income, or profits during a period of corresponding length in the immediate past as those sales, income, or profits represented, and the beginning and ending dates for said time period;

(4) In immediate conjunction with each such representation of potential sales, income or profits, the following statement shall be clearly and conspicuously disclosed:

CAUTION
These figures are only estimates; there is no assurance you'll do as well. If you rely upon our figures, you must accept the risk of not doing as well.

Provided, however, That if such representation is not based on actual experience of existing outlets of the named franchise business, that fact also should be disclosed;

(5) No later than the earlier of the first "personal meeting"or the "time for making of disclosures," each prospective franchisee shall be given a single, legible written document which accurately, clearly and concisely sets forth the following information and materials (and none other than that provided for by this part or by State law not preempted by this part):

(i) The representation, set forth in detail along with the material bases and assumptions therefor;

(ii) The number and percentage of outlets of the named franchise business which the franchisor or the franchise broker knows to have earned or made at least the same sales, income or profits during a period of corresponding length in the immediate past as those sales, income, or profits represented, and the beginning and ending dates for said time period;

(iii) With respect to each such representation of sales, income, or profits of existing outlets, the following statement shall be clearly and conspicuously disclosed in immediate conjunction therewith, printed in not less than 12 point upper and lower case boldface type:

CAUTION
Some outlets have [sold] [earned] this amount. There is no assurance you'll do as well. If you rely upon our figures, you must accept the risk of not doing as well.

(iv) With respect to each such representation of potential sales, income, or profits, the following statement shall be clearly and conspicuously disclosed in immediate conjunction therewith, printed in not less than 12 point upper and lower case boldface type:

CAUTION
These figures are only estimates. There is no assurance that you'll do as well. If you rely upon our figures, you must accept the risk of not doing as well.

(v) If applicable, a statement clearly and conspicuously disclosing that the franchisor lacks prior franchising experience as to the named franchise business;

(vi) If applicable, a statement clearly and conspicuously disclosing that the franchisor has not been in business long enough to have actual business data;

(vii) A cover sheet, distinctively and conspicuously showing the name of the franchisor, the date of issuance of the document, and the following notice printed thereon in not less than 12 point upper and lower case boldface type:

INFORMATION FOR PROSPECTIVE FRANCHISEES ABOUT FRANCHISE [SALES] [INCOME] [PROFIT] REQUIRED BY THE FEDERAL TRADE COMMISSION

To protect you, we've required the franchisor to give you this information. We haven't checked it and don't know if it's correct. Study these facts and figures carefully. If possible, show them to someone who can advise you, like a lawyer or an accountant. If you find anything you think may be wrong or anything important that's been left out, let us know about it. It may be against the law. There may also be laws about franchising in your State.

Ask your State agencies about them.

FEDERAL TRADE COMMISSION, Washington, D.C.

(viii) A table of contents;

(6) Each prospective franchisee shall be notified at the "time for making of disclosures" of any material changes that have occurred in the information contained in this document.

(f) To make any claim or representation which is contradictory to the information required to be disclosed by this part.

(g) To fail to furnish the prospective franchisee with a copy of the franchisor's franchise agreement and related agreements with the document, and a copy of the completed franchise and related agreements intended to be executed by the parties at least 5 business days prior to the date the agreements are to be executed.

Provided, however, That the obligations defined in paragraphs (b) through (g) of this section shall be deemed to have been met for both the franchisor and the franchise broker if either such person furnishes the prospective franchisee with the written disclosures required thereby.

(h) To fail to return any funds or deposits in accordance with any conditions disclosed pursuant to paragraph (a)(7) of this section.

16 CFR 436.2

As used in this part, the following definitions shall apply:

(a) The term "franchise" means any continuing commercial relationship created by any arrangement or arrangements whereby:

(1)(i)(A) a person (hereinafter "franchisee") offers, sells, or distributes to any person other than a "franchisor" (as hereinafter defined), goods, commodities, or services which are:

(1) Identified by a trademark, service mark, trade name,advertising or other commercial symbol designating another person (hereinafter "franchisor" ); or

(2) Indirectly or directly required or advised to meet the quality standards prescribed by another person (hereinafter " franchisor" ) where the franchisee operates under a name using the trademark, service mark, tradename, advertising or other commercial symbol designating the franchisor; and

(B) (1) The franchisor exerts or has authority to exert a significant degree of control over the franchisee's method of operation, including but not limited to, the franchisee's business organization, promotional activities, management, marketing plan or business affairs; or

(2) The franchisor gives significant assistance to the franchisee in the latter's method of operation, including, but not limited to, the franchisee's business organization, management, marketing plan, promotional activities, or business affairs; Provided, however, That assistance in the franchisee's promotional activities shall not, in the absence of assistance in other areas of the franchisee's method of operation, constitute significant assistance; or

(ii)(A) A person (hereinafter "franchisee") offers, sells, or distributes to any person other than a "franchisor" (as hereinafter defined), goods, commodities, or services which are:

(1) Supplied by another person (hereinafter "franchisor" ), or

(2) Supplied by a third person (e.g., a supplier) with whom the franchisee is directly or indirectly required to do business by another person (hereinafter " franchisor" ); or

(3) Supplied by a third person (e.g., a supplier) with whom the franchisee is directly or indirectly advised to do business by another person (hereinafter " franchisor" ) where such third person is affiliated with the franchisor; and

(B) The franchisor:

(1) Secures for the franchisee retail outlets or accounts for said goods, commodities, or services; or

(2) Secures for the franchisee locations or sites for vending machines, rack displays, or any other product sales display used by the franchisee in the offering, sale, or distribution of said goods, commodities, or services; or

(3) Provides to the franchisee the services of a person able to secure the retail outlets, accounts, sites or locations referred to in paragraph (a)(1)(ii)(B) (1) and (2) above; and

(2) The franchisee is required as a condition of obtaining or commencing the franchise operation to make a payment or a commitment to pay to the franchisor, or to a person affiliated with the franchisor.

(3) Exemptions. The provisions of this part shall not apply to a franchise:

(i) Which is a "fractional franchise"; or

(ii) Where pursuant to a lease, license, or similar agreement, a person offers, sells, or distributes goods, commodities, or services on or about premises occupied by a retailer-grantor primarily for the retailer-grantor's own merchandising activities, which goods, commodities, or services are not purchased from the retailer-grantor or persons whom the lessee is directly or indirectly: (A) required to do business with by the retailer-grantor, or (B) advised to do business with by the retailer-grantor where such person is affiliated with the retailer-grantor; or

(iii) Where the total of the payments referred to in paragraph (a)(2) of this section made during a period from any time before to within 6 months after commencing operation of the franchisee's business, is less than $500; or

(iv) Where there is no writing which evidences any material term or aspect of the relationship or arrangement.

(4) Exclusions. The term "franchise" shall not be deemed to include any continuing commercial relationship created solely by:

(i) The relationship between an employer and an employee, or among general business partners; or

(ii) Membership in a bona fide "cooperative association"; or

(iii) An agreement for the use of a trademark, service mark, trade name, seal, advertising, or other commercial symbol designating a person who offers on a general basis, for a fee or otherwise, a bona fide service for the evaluation, testing, or certification of goods, commodities, or services;

(iv) An agreement between a licensor and a single licensee to license a trademark, trade name, service mark, advertising or other commercial symbol where such license is the only one of its general nature and type to be granted by the licensor with respect to that trademark, tradename, service mark, advertising, or other commercial symbol.

(5) Any relationship which is represented either orally or in writing to be a franchise (as defined in this paragraphs (a) (1) and (2) of this section) is subject to the requirements of this part.

(b) The term "person" means any individual, group, association, limited or general partnership, corporation, or any other business entity.

(c) The term " franchisor" means any person who participates in a franchise relationship as a franchisor, as denoted in paragraph (a) of this section.

(d) The term "franchisee" means any person: (1) who participates in a franchise relationship as a franchisee, as denoted in paragraph (a) of this section, or (2) to whom an interest in a franchise is sold.

(e) The term "prospective franchisee" includes any person, including any representative, agent, or employee of that person, who approaches or is approached by a franchisor or franchise broker, or any representative, agent, or employee thereof, for the purpose of discussing the establishment, or possible establishment, of a franchise relationship involving such a person.

(f) The term "business day" means any day other than Saturday, Sunday, or the following national holidays: New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving, and Christmas.

(g) The term "time for making of disclosures" means ten (10) business days prior to the earlier of: (1) the execution by a prospective franchisee of any franchise agreement or any other agreement imposing a binding legal obligation on such prospective franchisee, about which the franchisor, franchise broker, or any agent, representative, or employee thereof, knows or should know, in connection with the sale or proposed sale of a franchise, or (2) the payment by a prospective franchisee, about which the franchisor, franchise broker, or any agent, representative, or employee thereof, knows or should know, of any consideration in connection with the sale or proposed sale of a franchise.

(h) The term "fractional franchise" means any relationship, as denoted by paragraph (a) of this section, in which the person described therein as a franchisee, or any of the current directors or executive officers thereof, has been in the type of business represented by the franchise relationship for more than 2 years and the parties anticipated, or should have anticipated, at the time the agreement establishing the franchise relationship was reached, that the sales arising from the relationship would represent no more than 20 percent of the sales in dollar volume of the franchisee.

(i) The term "affiliated person" means a person (as defined in paragraph (b) of this section):

(1) Which directly or indirectly controls, is controlled by, or is under common control with, a franchisor; or

(2) Which directly or indirectly owns, controls, or holds with power to vote, 10 percent or more of the outstanding voting securities of a franchisor; or

(3) Which has, in common with a franchisor, one or more partners, officers, directors, trustees, branch managers, or other persons occupying similar status or performing similar functions.

(j) The term "franchise broker" means any person other than a franchisor or a franchisee who sells, offers for sale, or arranges for the sale of a franchise.

(k) The term "sale of a franchise" includes a contract or agreement whereby a person obtains a franchise or interest in a franchise for value by purchase, license, or otherwise. This term shall not be deemed to include the renewal or extension of an existing franchise where there is no interruption in the operation of the franchised business by the franchisee, unless the new contracts or agreements contain material changes from those in effect between the franchisor and franchisee prior thereto.

(l) A "cooperative association" is either (1) an association of producers of agricultural products authorized by section 1 of the Capper-Volstead Act, 7 U.S.C. 291; or (2) an organization operated on a cooperative basis by and for independent retailers which wholesales goods or furnishes services primarily to its member-retailers.

(m) The term "fiscal year" means the franchisor's fiscal year.

(n) The terms "material," "material fact," and "material change" shall include 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.

(o) The term "personal meeting" means a face-to-face meeting between a franchisor or franchise broker (or any agent, representative, or employee thereof) and a prospective franchisee which is held for the purpose of discussing the sale or possible sale of a franchise.

16 CFR 436.3

If any provision of this part or its application to any person, act, or practice is held invalid, the remainder of the part or the application of its provisions to any person, act, or practice shall not be affected thereby.

NOTE 1: The Commission expresses no opinion as to the legality of any practice mentioned in this part. A provision for disclosure should not be construed as condonation or approval with respect to the matter required to be disclosed, nor as an indication of the Commission's intention not to enforce any applicable statute.

NOTE 2: By taking action in this area, the Federal Trade Commission does not intend to annul, alter, or affect, or exempt any person subject to the provisions of this part from complying with the laws or regulations of any State, municipality, or other local government with respect to franchising practices, except to the extent that those laws or regulations are inconsistent with any provision of this part, and then only to the extent of the inconsistency. For the purposes of this part, a law or regulation of any State, municipality, or other local government is not inconsistent with this part if the protection such law or regulation affords any prospective franchisee is equal to or greater than that provided by this part. Examples of provisions which provide protection equal to or greater than that provided by this part include laws or regulations which require more complete record keeping by the franchisor or the disclosure of more complete information to the franchisee.

NOTE 3: [As per § 436.1(a)(24) of this part]:

DISCLOSURE STATEMENT
Pursuant to 16 CFR 436.1 et seq., a Trade Regulation Rule of the Federal Trade Commission regarding Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, the following information is set forth on [name of franchisor] for your examination:

1. Identifying information as to franchisor.
2. Business experience of franchisor's directors and executive officers.
3. Business experience of the franchisor.
4. Litigation history.
5. Bankruptcy history.
6. Description of franchise.
7. Initial funds required to be paid by a franchisee.
8. Recurring funds required to be paid by a franchisee.
9. Affiliated persons the franchisee is required or advised to do business with by the franchisor.
10. Obligations to purchase.
11. Revenues received by the franchisor in consideration of purchases by a franchisee.
12. Financing arrangements.
13. Restriction of sales.
14. Personal participation required of the franchisee in the operation of the franchise.
15. Termination, cancellation, and renewal of the franchise.
16. Statistical information concerning the number of franchises (and company-owned outlets).
17. Site selection.
18. Training programs.
19. Public figure involvement in the franchise.
20. Financial information concerning the franchisor
SOURCE: 43 FR 59614, Dec. 21, 1978
AUTHORITY: 38 Stat. 717, as amended, 15 U.S.C. 41-58.

Source: United States Federal Trade Commission, www.ftc.gov

 

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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 then complain in writing through legal counsel to franchisor Windermere Services Company, it is absolutely silent in the face of clear, 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 crystal clear evidence, many victims go on to lose in court because they can't afford attorneys, 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 go away without their lives and homes, merely for just buying a house through Windermere Real Estate, innocently.

Although documented and irrefutable evidence of Windermere broker/agent misconduct has been openly exposed to franchisor 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 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 visit more websites about Windermere's predatory business practices, like windermere-victims.com, windermere-gallery.com, and renovationtrap.com.

When victims use the media to complain and warn others, Windermere sues them for libel and defamation through specious lawsuits that are intended to intimidate and silence—read one of those phony lawsuits here. Then Windermere tries to coerce victims into signing a “settlement agreement” that permanently terminates their speech rights. And when a victim refuses to sign, Windermere voluntarily dismisses its own lawsuit under Civil Rule 41 just before trial, after costing the victim years of distress 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, franchisor Windermere Services Company served an outspoken victim a fallacious lawsuit for libel and defamation, and then immediately sent them an email instructing that they "...need not to hire an attorney," and further stating, “…we will try to resolve this directly and outside the legal system." Incredibly, Windermere implements both the aggression and arrogance to overtly and unabashedly order that a customer it has falsely sued be unrepresented by counsel and resolve their dispute outside the very same legal system in which Windermere has brought suit against them.

Every Windermere office in every state is legally tied to franchisor 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.

WE BELIEVE THE NEWS AND INFORMATION REPORTED HERE ARE OF PROFOUND SOCIAL BENEFIT TO THE COMMUNITY, AND ARE DEDICATED TO PROVIDING IT.

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