"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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FORMER WINDERMERE FRANCHISEES IN LITIGATION WITH
PREDATORY FRANCHISER WINDERMERE SERVICES COMPANY:
THE SAGA OF WINDERMERE PUYALLUP CANYON ROAD
Read about more former Windermere franchisees in litigation with WSC here.
_______________________________________
CASE UPDATE: STIPULATION AND ORDER FOR VOLUNTARY DISMISSAL OF CLAIMS FILED OCTOBER 27, 2011.
Windermere Real Estate Founder John Jacobi Named as Third Party Defendant and Sued for Indemnification, Contribution, Breach of Fiduciary Duty and Breach of Contract in Bank of America vs. Windermere Puyallup Canyon Road. Windermere corporate counsel Paul Drayna alleged to have sent WPCR's new franchiser—Better Homes & Gardens—predatory email. (B of A's First Amended Complaint here.)
The Third Party Complaint Alleges, "Despite Jacobi's contractual obligation to personally guarantee WPCR obligations to Bank of America and demands by WPCR members to do so, Jacobi failed and refused to sign personal guarantees of these obligations," and "On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received an 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." (Windermere Founder John Jacobi, left.)
"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 all rights to pursue all amounts owing against Maxwell personally," and "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." (Windermere corporate counsel Paul Drayna, left; learn more about Drayna here.)
SUPERIOR COURT OF WASHINGTON
FOR PIERCE COUNTY
BANK OF AMERICA, N.A., a national banking association,
Plaintiff,
v.
WINDERMERE-PUYALLUP/CANYON ROAD, L.L.C., a Washington limited liability company; ELDON J. MAXWELL, II, an individual who resides in Washington State; and MICHAEL RATCLIFFE, an individual who resides in Washington State,
Defendants.
_______________________________________
WINDERMERE-PUYALLUP/CANYON ROAD, L.L.C., a Washington limited liability company; and ELDON J. MAXWELL, II, an individual,
Third Party Plaintiffs,
v.
John Jacobi, an individual,
Third Party Defendant
________________________________________
Case No. 10-2-09966-8
THIRD PARTY COMPLAINT
Defendants and Third Party Plaintiffs Windermere-Puyallup Canyon Road, L.L.C. ("WPCR”) and Eldon J. Maxwell, II ("Maxwell") allege as follows:
1. FACTUAL ALLEGATIONS
1. Third Party Plaintiffs are defendants in the above captioned action over which this court has jurisdiction.
2. Third Party Defendant John Jacobi is a resident of King County Washington and is a member of WPCR doing business in Pierce County, Washington.
3. Plaintiff Bank of America, N.A. ("Bank") has commenced this action against Defendants and Third Party Plaintiffs WPCR and Maxwell alleging that WPCR and Maxwell are indebted to the Bank for amounts due under certain loan and guarantee agreements. A copy of Plaintiff's First Amended Complaint is attached as Exhibit "A-1."
4. 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, L.L.C.
5. MAI is the majority owner of WPCR and Maxwell is its Manager.
6. 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, L.L.C. ("PCP"), Windermere South, Inc. and John Jacobi ("Jacobi"). Jacobi is the President and founder of Windermere Services Company ("WSC"). The members entered into a written Operating Agreement for WPCR on or about January 17, 2001. The Operating Agreement was amended on February 1, 2006, and both the original and Amended Operating Agreement are hereafter referred to collectively as the "WPCR Operating Agreement."
7. WPCR was formed to operate as a Windermere real estate franchise. WSC and its attorneys prepared the documents necessary to form WPCR including the WPCR Operating Agreement.
8. 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.
9. 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 Windermere franchise in the State of Washington.
10. Maxwell and another WPCR member, Michael Ratcliffe ("Ratcliffe"), met with WSC's representatives to discuss opening another Windermere office in Tacoma. WSC and Jacobi told Maxwell and Ratcliffe they must buyout PCP's membership interest in WPCR before WSC would allow them to open a Windermere office in Tacoma.
11. 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.
12. 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.
13. In 2006, WPCR opened another Windermere office in downtown Tacoma as agreed with WSC. WPCR incurred substantial start-up expenses for opening the Tacoma office.
14. Before the buyout of PCP and the opening of the Tacoma office, WPCR had no significant long-term debt and was very profitable.
15. In early 2006, WSC and Jacobi decided to open another Windermere office in the territory in which WPCR was operating, despite the objections of WPCR and Maxwell. As a result of the opening of this new Windermere office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new Windermere franchise in Graham, Washington.
16. 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.
17. Maxwell made repeated verbal and written complaints to WSC and Jacobi about the decision to open the office in Graham. Maxwell and WPCR filed a formal written complaint with WSC's internal dispute resolution board. WSC and Jacobi did not take any action in response to these complaints.
18. After WPCR opened the Tacoma office as agreed, Jacobi and WSC agreed to the opening of another Windermere franchise located only blocks away from WPCR's Tacoma office. This was done without the knowledge or consent of WPCR or Maxwell.
19. 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 as WPCR's Tacoma office, severely damaged WPCR's business and WPCR's financial condition.
20. 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.
21. 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.
22. Maxwell and Ratcliffe were required to sign personal guarantees of WPCR's obligation to Plaintiff Bank of America.
23. Despite Jacobi's contractual obligation to personally guarantee WPCR obligations to Bank of America and demands by WPCR members to do so, Jacobi failed and refused to sign personal guarantees of these obligations.
24. Before the Bank declared the loans in default, Maxwell was working directly with the Bank to restructure WPCR's loans. After a representative of WSC contacted the Bank regarding WPCR, the Bank declared the WPCR loans in default.
25. Up until the Bank declared the WPCR loans in default, WPCR had been current with its loan payments.
26. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received an 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.
27. 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 all rights to pursue all amounts owing against Maxwell personally.
28. 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.
II. CAUSES OF ACTION
A. First Claim for Relief - Indemnification
29. The default by WPCR on the loans made to WPCR by the Bank was caused by the acts of Jacobi and acts taken by WSC at the direction of Jacobi.
30. Third Party Plaintiffs are entitled to indemnification and to be held harmless by Jacobi for any damage awarded to Plaintiff against them and for costs incurred in defending against Plaintiffs' claims in this action.
B. Second Claim for Relief - Contribution
31. Under the terms of the WPCR Operating Agreement, Jacobi is obligated to contribute to the payment of any debts or other obligations of WPCR paid by Maxwell.
32. Jacobi has failed to contribute any monies toward payment of WPCR's debts and other obligations. Third Party Plaintiffs are entitled to contribution from Jacobi for all debts and obligation of WPCR paid by Third Party Plaintiffs.
C. Third Claim for Relief - Breach of Fiduciary Duty
33. Jacobi owed Maxwell and WPCR fiduciary duties as a member of WPCR and as President and Chairman of the Board of WSC, WPCR's franchisor. Jacobi breached his fiduciary duties and as a proximate result, Maxwell and WPCR have suffered damages in an amount to be proven at trial.
D. Fourth Claim for Relief - Breach of Contract
34. Jacobi was contractually obligated to personally guarantee any indebtedness of WPCR that another member was required to personally guarantee. Jacobi was also contractually obligated to disclose any conflicts of interest to the other members of WPCR.
35. Jacobi breached his contractual obligations under the WPCR Operating Agreement and as a proximate result of Jacobi's breaches of contract, Third Party Plaintiffs have suffered damages in an amount to be proven at trial.
III. PRAYER FOR RELIEF
Defendants and Third Party Plaintiffs WPCR and Maxwell request judgment be entered against Third Party Defendant John Jacobi as follows:
1. Awarding Defendants and Third Party Plaintiffs indemnification for any judgment and damages awarded against Third Party Plaintiffs on Plaintiff’s claims;
2. Awarding Defendants and Third Party Plaintiffs contribution towards all damages awarded against Third Party Plaintiffs on Plaintiff’s claims;
3. For damages in excess of $4,000,000;
4. For attorney's fees and other costs incurred by Third Party Plaintiffs; and
5. For such further additional relief which the court finds appropriate, equitable or just.
DATED this 31st day of March, 2011.
JACKSON & CO.
By: ____________________________
Ronald Jackson, WSBA #14903 for
Attorney for Defendants and Third Party Plaintiffs
_________________________________________________
The Honorable Stephanie A. Arend
SUPERIOR COURT OF WASHINGTON
FOR PIERCE COUNTY
BANK OF AMERICA, N.A., a national banking association,
Plaintiff,
vs.
WINDERMERE-PUYALLUP/CANYON ROAD, L.L.C., a Washington limited liability
company; ELDON J. MAXWELL, II, an individual who resides in Washington State; and MICHAEL RATCLIFFE, an individual who resides in Washington State,
Defendants.
No. 10-2-09966-8
FIRST AMENDED COMPLAINT
COMES NOW, the plaintiff, Bank of America, N.A. and for its first amended complaint, alleges as follows:
1. PARTIES AND JURISDICTION
1.1 Bank of America ("Plaintiff' or the "Bank") is a national banking association organized and existing under the laws of the United States of America, is the owner and holder of the below-described promissory notes, guaranties and security agreement, and is authorized to bring this suit pursuant to 12 U.S.C. § 24.
1.2 Defendant Windermere-Puyallup/Canyon Road, L.L.C. ("Windermere-Puyallup") is a limited liability company that is registered to do business in Washington State.
1.3 Defendant Windermere-Puyallup's principal place of business is in Puyallup,
Washington.
1.4 Defendant Eldon J. Maxwell, II is an individual residing in Spanaway,
Washington.
1.5 Defendant Michael Ratcliffe, who on information and belief, resides in Sumner,
Washington.
1.6 Jurisdiction and venue are proper in this Court pursuant to RCW 2.08.010, RCW 4.12.020.
II. BACKGROUND FACTS
2.1 On January 31, 2007, Defendant Windermere-Puyallup borrowed $200,000.00 ('Facility No. I") from the Bank, by then and there executing and delivering to the Bank a Loan Agreement setting forth the terms of the loan. A copy of the Loan Agreement is attached hereto as Exhibit A.
2.2 On January 31, 2007, Defendant Windermere-Puyallup borrowed an additional $440,000.00 from the Bank ("Facility No. 2"). by then and there executing and delivering to the Bank a Loan Agreement setting forth the terms of the loan. A copy of this Loan Agreement is attached hereto as Exhibit B.
2.3 On January 31, 2007, Defendant Windermere-Puyallup executed and delivered to the Bank a Security Agreement that granted the Bank a security interest in accounts, inventory and equipment, among other things (the "Collateral"), to secure all its indebtedness and to the Bank. A copy of the Security Agreement is attached hereto as Exhibit C.
2.4 The Collateral consists of:
(a) All accounts, contract rights, chattel paper, instruments, deposit accounts, letter of credit rights, payment intangibles and general intangibles, including all amounts due to [Borrower] from a factor; rights to payment of money from the Bank under any Swap Contract...; and all returned or repossessed goods which, on sale or lease, resulted in an account or chattel paper.
(b) All inventory, including all materials, work in process and finished goods.
(c) All machinery, furniture, fixtures and other equipment of every type now
owned or hereafter acquired by [Borrower]....
(d) All negotiable and nonnegotiable documents of title covering any Collateral.
(e) All accessions, attachments, and other additions to the Collateral, and all
tools. parts and equipment used in connection with the Collateral.
(f) All substitutes or replacements for any Collateral, all cash or non-cash proceeds, product, rents and profits of any Collateral, all income, benefits and property receivable on account of the Collateral, all rights under warranties and insurance contracts, letters of credit, guaranties or other supporting obligations covering the Collateral, and any causes of action relating to the Collateral.
(g) All books and records pertaining to any Collateral, including but not limited to any computer-readable memory and any computer hardware or software necessary to process such memory ("Books and Records").
Exhibit C, ¶ 1.
2.5 On January 31, 2007, Defendant Eldon J. Maxwell, II executed and delivered to the Bank a Continuing and Unconditional Guaranty of (the "Maxwell Guaranty") wherein he agreed to guaranty all Indebtedness of Windermere-Puyallup, including without limitation, Facility No. I and Facility No. 2. A copy of the Maxwell Guaranty is attached hereto as Exhibit D.
2.6 On January 31. 2007, Defendant Michael Ratcliffe executed and delivered to the
Bank a Continuing and Unconditional Guaranty of (the "Ratcliffe Guaranty") wherein he agreed to guaranty all Indebtedness of Windermere-Puyallup, including without limitation Facility No. I and Facility No. 2. A copy of the Ratcliffe Guaranty is attached hereto as Exhibit E.
2.7 Windermere-Puyallup is in default of its obligations under the Loan Agreements for each of Facility No. I and Facility No. 2 (collectively, "Loan Agreements").
2.8 Under Facility No. I there is due and owing to the Bank (as of May 18, 2010) a principal obligation of $197,000.00 along with interest of $320.12 and $7,880.00 in late charges.
2.9 Under Facility No. 2 there is due and owing to the Bank (also as of May 18, 2010) a principal obligation of $262,538.36 along with interest of $1,057.44 and $10,501.53 in late charges.
2.10 Pursuant to the Loan Agreements and the Security Agreement, in the event of default, the Bank may require Windermere-Puyallup to forward all payments and proceeds of the Collateral and/or assemble the Collateral and make it available to the Bank.
2.11 In the event of default under the Loan Agreements or the Security Agreement, the Bank may also enter upon the property where any Collateral is located and take possession of such Collateral for any use necessary or advisable in order to take possession of, hold, preserve, process, assemble, prepare for sale or lease, market for sale or lease, sell or lease, or otherwise dispose of such Collateral.
2.12 The Security Agreement also provides that the Bank is entitled to exercise any and all of the remedies set forth in the Security Agreement, that the remedies are cumulative, and the exercise of any remedy does not preclude further exercise or exercise of any alternate remedies granted by the Security Agreement.
2.13 Pursuant to the terms of the Security Agreement, Windermere-Puyallup is obligated to pay all expenses related to the Bank's actions to enforce the Security Agreement or take possession of, hold, preserve, process, assemble, prepare for sale or lease, market for sale or lease, sell or lease, or otherwise dispose of such Collateral.
2.14 Both Loan Agreements and the Maxwell and Ratcliffe Guaranties provide for the Bank's attorney fees and costs in enforcing their terms.
III. CAUSE OF ACTION - BREACH OF LOAN AGREEMEENTS
(against Windermere-Puyallup)
3.1 For valuable consideration Windermere-Puyallup made, executed and delivered to the Bank two Loan Agreements, whereby it borrowed a combined $640,000.00 under Facilities No. I and No. 2 and agreed to repay the same together with all interest thereon, plus all costs, expenses and attorney fees incurred by the Bank in connection with or relating to the collection of the indebtedness.
3.2 By the terms of the Loan Agreements, Windermere-Puyallup is liable to the Bank for repayment of loan principal in the amount of $479,297.45, interest, fees and costs in an amount to be proved at trial.
IV. CAUSE OF ACTION - REPLEVIN
(against Windermere-Puyallup)
4.1 Windermere-Puyallup has defaulted on its obligations to the Bank. The Loan Agreements and the Security Agreement provide that, in the event of default, the Bank, in addition to other remedies, can require Windermere-Puyallup to assemble the Collateral and make it available to the Bank, and the Bank may enter upon the property where any Collateral is located and take possession of such Collateral for any use necessary or advisable in order to take possession of, hold, preserve, process, assemble, prepare for sale or lease, market for sale or lease, sell or lease, or otherwise dispose of such Collateral.
4.2 The Bank is entitled to immediate possession of the Collateral by virtue of Windermere-Puyallup's default.
4.3 As of October 4, 2010, value of the Collateral is estimated to be less than the amount owed by Windermere-Puyallup to the Bank.
4.4 Pursuant to RCW 7.64.010, the Bank is entitled to recover immediate possession of the Collateral so that it may sell or otherwise dispose of the Collateral, as authorized by the Uniform Commercial Code, RCW 62A.9A-101, el seq.
V. CAUSE OF ACTION - BREACH OF GUARANTIES
(against Maxwell and Ratcliffe Defendants)
5.1. For valuable consideration, the Maxwell and Ratcliffe defendants each made, executed and delivered to the Bank a Guaranty whereby they unconditionally guarantied the payment of any and all of Windermere-Puyallup's Indebtedness to the Bank, together with all interest thereon, plus all costs, expenses and attorney fees incurred by the Bank in connection with or relating to the collection of the Indebtedness.
5.2. By the terms of the Guaranties, the Maxwell and Ratcliffe defendants are liable to the Bank for repayment of Windermere-Puyallup's obligation to the Bank under the Loan Agreements, which are now in default.
VI. PRAYER FOR RELIEF
WHEREEFORE, the plaintiff Bank of America, N.A. prays for relief as follows:
A. For a judgment against all the defendants in the principal sum of $479,297.45 together with accrued interest, costs and fees, including reasonable attorney fees.
B. For judgment granting the Bank immediate possession of the Collateral described in the Security Agreement, and authorizing law enforcement to break and enter, if necessary, and to take immediate possession thereof and to deliver the Collateral to the Bank.
C. For prejudgment relief in enforcement of the Bank's rights.
D. For such other and further relief as the Court deems equitable being advised in the premises.
DATED this 7th day of October, 2010.
GRAHAM & DUNN PC
By ________________________________________
Diane M. Meyers, WSBA# 40729
Email: dmeyers@grahamdunn.com
Steven A. Miller, WSBA# 30388
Email: smiller@grahamdunn.com
Attorneys for Plaintiff Bank of America, N.A.
_______________________________________________________
SUPERIOR COURT OF WASHINGTON
FOR PIERCE COUNTY
BANK OF AMERICA, N.A., a national banking association,
Plaintiff,
v.
WINDERMERE-PUYALLUP/CANYON ROAD, L.L.C., a Washington limited liability company; ELDON J. MAXWELL, II, an individual who resides in Washington State; and MICHAEL RATCLIFFE, an individual who resides in Washington State,
Defendants.
_________________________________
Case No. 10-2-09966-8
ANSWER TO FIRST AMENDED COMPLAINT BY DEFENDANTS WINDERMERE- PUYALLUP/CANYON ROAD, L.L.C. AND ELDON J. MAXWELL, II
1. ANSWER
Defendants Windermere-Puyallup Canyon Road, L.L.C. ("VVTCW') and Eldon J. Maxwell, II ("Maxwell") hereby answer the allegations in Plaintiff’s First Amended Complaint as follows:
I. Answering Paragraph 1.1, Defendants are without sufficient information to form a belief as to its truth or falsity and therefore deny the same.
2. Answering Paragraph 1.2, Defendants admit the allegations.
3. Answering Paragraph 1.3, Defendants admit the allegations.
4. Answering Paragraph 1.4, Defendants admit the allegations.
5. Answering Paragraph 1.5, Defendants are without sufficient information to form a belief as to its truth or falsity and therefore deny the same.
6. Answering Paragraph 2. 1, Defendants allege the documents referred to speak for themselves and deny all other allegations.
7. Answering Paragraph 2.2, Defendants allege the documents referred to speak for themselves and deny all other allegations.
8. Answering Paragraph 2.3, Defendants allege the documents referred to speak for themselves and deny all other allegations.
9. Answering Paragraph 2.4, Defendants allege the documents referred to speak for themselves and deny all other allegations.
10. Answering Paragraph 2.5, Defendants allege the documents referred to speak for themselves and deny all other allegations.
11. Answering Paragraph 2.6, Defendants allege the documents referred to speak for themselves and deny all other allegations.
12. Answering Paragraph 2.7, Defendants deny the allegations.
13. Answering Paragraph 2.8, Defendants deny the allegations.
14. Answering Paragraph 2.9, Defendants deny the allegations.
15. Answering Paragraph 2.10, Defendants allege the documents referred to speak for themselves and deny all other allegations.
16. Answering Paragraph 2.11, Defendants allege the documents referred to speak for themselves and deny all other allegations.
17. Answering Paragraph 2.12, Defendants allege the documents referred to speak for themselves and deny all other allegations.
18. Answering Paragraph 2.13, Defendants allege the documents referred to speak for themselves and deny all other allegations.
19. Answering Paragraph 2.14, Defendants allege the documents referred to speak for themselves and deny all other allegations.
20. Answering Paragraph 3.1, Defendants allege the documents referred to speak for themselves and deny all other allegations.
21. Answering Paragraph 3.2, Defendants deny the allegations.
22. Answering Paragraph 4. 1, Defendants allege the documents referred to speak for themselves and deny all other allegations.
23. Answering Paragraph 4.2, Defendants deny the allegations.
24. Answering Paragraph 4.3, Defendants deny the allegations.
25. Answering Paragraph 4.4, Defendants deny the allegations.
26. Answering Paragraph 5.1, Defendants deny the allegations.
27. Answering Paragraph 5.2, Defendants deny the allegations.
II. AFFIRMATIVE DEFENSES
In further answer to the First Amended Complaint and as affirmative defenses, Defendants allege as follows:
28. The First Amended Complaint fails to state a claim upon which relief can be granted.
29. Any alleged default was due solely to Plaintiff s refusal to accept payments timely made by Defendant WPCR and other breaches of the subject agreements by Plaintiff.
30. There has been a substantial failure of consideration bargained for in the alleged contract between the parties which are the subject of Plaintiff's First Amended Complaint.
31. Plaintiff by its actions has waived any claim of default or other breach of the alleged contracts by Defendants.
32. Plaintiff by its conduct, acts, words or silence, is estopped to claim that Defendants have breached any obligations under the alleged contracts.
33. Plaintiff s claims are barred for lack of jurisdiction to the extent they are subject to the mandatory arbitration provisions in the alleged contracts, which Plaintiff has failed to initiate.
DATED this 23rd day of March, 2011.
JACKSON & CO.
By: ___________________________________
Ronald A. Jackson, WSBA #14903
Attorney for Defendants
_______________________________________________
CASE UPDATE: STIPULATION AND ORDER FOR VOLUNTARY DISMISSAL OF CLAIMS FILED NOVEMBER 1, 2011.
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.
_________________________________________
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.
Download Windermere's Answer to Maxwell's Counterclaims here.
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The Windermere Real Estate Relocation Rape Case:
Court Declares that Windermere "...condoned a rape by a business colleague..."
Editorial Preface: The incredibly violent and insidious psychological ramifications of rape, connected through an “abusive work environment” serves as an unfortunate yet credible subtext for the way in which Windermere Real Estate treats employees and damaged customers alike: Windermere’s application of aggressive, wasteful and mendacious litigation to stall and ruin innocent consumers, serves as the coercive metaphor of corporate power and arrogance: Windermere has no concern for the social damage it has done to people or communities. It cares only about how to manipulate the law and the courts to avoid any legal responsibility.
(Above L to R) Windermere CEO Geoff Wood (far left) is currently listed as a Governing Person of Windermere Relocation. Peggy Scott (second from left), also a current Governing Person of Windermere Relocation, "... did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little." Windermere General Counsel, attorney Paul Drayna (third from left) is listed as the registered agent of RELO LLC, the current entity name of Windermere Relocation. Windermere Founder John W. Jacobi (fourth from left) along with Gayle Glew (far right) are listed as Governing Persons of Windermere Relocation during the Little case. Glew told Ms. Little he did not want any "clouds in the office," and subsequently, after she would not accept a pay cut, that she should clean out her desk.
All citizens who abhor such treatment of women in the workplace should recall Maureen Little v. Windermere Relocation when choosing real estate services. WindermereWatch visitors will also want to read the United States District Court of Appeals Ninth Circuit's Order and Amended Opinion from the Little case.
Summarized and excerpted from a decision by the U.S. Court of Appeals
Maureen Little was employed by Windermere Relocation Services (“Windermere”) as a Corporate Services Manager, a position that required her “to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees.” Until she was terminated, she received only positive feedback from her supervisors. Windermere’s records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.
Unlike the other managers, Little’s employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The override was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make the target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.
One of Windermere’s clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would “do whatever it takes to get this account” and that Little should “do the best job she could.” Thus, little believed that, as part of her job, she was to build a business relationship with Guerrero to try and get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.
On October 14, Little accepted Guerrero’s invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drover her to her car.
Little was reluctant to tell anyone at Windermere about the rape because, in her own words, “I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account.” This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little’s supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared “what might happen to [Little] if [she] did tell.”
On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere’s Harassment Policy as a complaint-receiving manager. Little described Scott’s response:
She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].
Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.
Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks ... a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position.... I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.
When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's" immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.
Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.'" When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.
Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims.
Little appealed dismissal of her claims, and the appeals court reversed in part, and ruled:
In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career[]."
Incredibly, Windermere asked for a rehearing, but "...the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
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WINDERMERE: AMERICA'S PREDATORY REAL ESTATE ENTERPRISE
Consumer advocates, legal experts and elected lawmakers all agree that the American real estate industry demands greater regulation to protect consumers from the human disaster of real estate fraud perpetrated by unethical realtors employed at companies like Windermere Real Estate. Windermere manipulates our clogged, inundated courts and the justice system to stall, wear down and financially exhaust victimized consumers, many of whom are wiped-out by the cost of pursuing civil justice in a process where innocent victims must CHASE perpetrators of real estate fraud through the courts AFTER a fraudulent offense has been committed. Acts of fraud are so common and widespread throughout the Windermere real estate network, that the defense of real estate fraud has become has become just another bottomline expense on the Windermere balance sheet. And the litigation nightmare of real estate fraud can happen to anyone who deals with Windermere Real Estate. It could happen to you. Windermere is by far the most unethical, deceitful, and culturally toxic real estate company operating in the United States. Windermere knowingly, deliberately, and unabashedly profits on corrupt franchise owners, brokers and agents with proven histories of fraud and ethical misconduct, many of whom are profiled in the pages of WindermereWatch.com. Despite Windermere's well-documented assault on victim speech rights, more and more unconscionable cases of Windermere fraud continue emerging.
Windermere is headquartered in Seattle, at franchiser Windermere Services Company. It was founded by John W. Jacobi, and he has kept the company a private, family-owned enterprise, eluding the transparency and ethical accountability required by stockholders. For decades, Windermere has harnessed the art of positive PR, affixing itself—however superficially—to community art events, the homeless, and even an annual college rowing competition which opens Seattle's boating season—the Windermere Cup—irresponsibly promoted by, and in conjunction with, the University of Washington. But those are the disingenuous and cynical sideshows created by an adept market manipulator, shown only briefly to the public, to obscure and obfuscate Windermere's true predatory nature.
FRANCHISER WINDERMERE SERVICES' MANAGEMENT TEAM AND DESIGNATED GOVERNING PEOPLE: EXPERTS IN MARKETING FRAUD, ABUSE OF THE LEGAL PROCESS, AND AT COERCING DAMAGED WINDERMERE CLIENTS INTO SILENCE BY SUPPRESSING THEIR SPEECH RIGHTS
The shameless greed and repugnant ethics of Seattle's Jacobi family, deliberately profiting on the loss and suffering of Windermere victims through commissions on the fraudulent home deals and unlawful misconduct of dishonest Windermere agents, brokers and franchise owners. Forget human decency, commercial reputation or social responsibility—it's all about the money.
Before turning the business over to his children and son-in-law, Windermere founder John W. Jacobi (left) simply ignored any complaints of fraud from Windermere victims, sending them straight to the lawyers. Yet despite claims of retirement, Jacobi is still indeed quite active at franchiser Windermere Services Company:
In Complaint 10-2-36192-8 SEA, filed in King County Superior Court on October 12, 2010, Windermere Services Company has sued former Windermere Puyallup Canyon Road owner Joe Maxwell for default on an “Unconditional Guaranty of Payment” promissory note. The Maxwell Answer and Counterclaims state that the “Plaintiff's [Windermere Services Company] claims are barred by Plaintiff’s fraud, duress, and unclean hands,” and alleges $4,000,000 in damages and violation of Washington's Franchise Investment Protection Act; and also that "The alleged Note and Guarantee are unconscionable and unenforceable." Maxwell's Counterclaims state "6. The WPCR Operating Agreement contains a provision granting Jacobi a special veto power which among other things, states that the company shall conduct its business and manage its affairs in accordance with the directions of Jacobi and all management decisions are subject to Jacobi’s review," and "13. In early 2006, WSC and Jacobi decided to open another WSC office in the territory in which WPCR was operating, despite the objections of Maxwell. As a result of the opening of this new WSC office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new office in Graham, Washington," and "14. As a direct result of these actions taken by WSC and Jacobi, WPCR was left with a large debt burden and overhead, and WPCR’s revenue was significantly reduced... 22. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received and email from WSC notifying him WPCR’s franchise had been terminated. This notice was sent to WPCR’s real estate agents before Maxwell learned of the termination of WPCR’s franchise." Read the complete report on this case here.
Jacobi's Washington Loan Company is also currently being sued for Intentional Misrepresentation—read that report here. And the Windermere affiliated service company, Commonwealth Land Title Company of Puget Sound, has recently been found negligent by a jury who awarded the third-party plaintiffs $1,190,000. Read the Commonwealth report here.
Current Governing Person and Windermere Services Company CEO Geoffrey P. Wood (left) is married to John W. Jacobi's daughter, Jill Jacobi-Wood. Wood is the chief architect of Windermere marketing fraud, inducing business volume through—among other fraudulent promotion—an express warranty of "The highest ethical standards. Uncompromising honesty and integrity." When called upon to honor his company's warranty, Wood instructs Demco lawyers—led by Matthew F. Davis–to sue vocal victims for libel and defamation. Wood is also a Governing Person of Windermere Relocation, the subject enterprise of Windermere's employee rape case. He was briefly a real estate sales person in 1994, but that license was CANCELLED in 1995, and Wood currently has no real estate license of any kind that WindermereWatch can find.
Governing Person Jill Jacobi-Wood (left), Windermere Services President, is a licensed real estate broker in Washington State, and as such is subject to the statutory condition of RCW 18.86.030 "(d) To deal honestly and in good faith." For her part in Windermere's marketing fraud and malfeasance, Jacobi-Wood's RE license should be cancelled by the Washington State DOL's real estate division. By promoting honesty and integrity—while in reality—she is suing and coercing Windermere victims to shutup about their Windermere experience, Jacobi-Wood is hardly dealing honestly and in good faith.
Governing Person John O'Brien "OB"Jacobi (left) is General Manager of franchiser Windermere Services Company and also has many Windermere realty brokerage offices. He's a licensed real estate broker who is also called upon by statutory law to "Deal honestly and in good faith." But John "OB" Jacobi instead promotes fraudulent claims of honesty and integrity, and falsely sues victims of Windermere misconduct for libel and defamation to intimidate them and coerce their silence. Then this junior Jacobi runs away and voluntarily dismisses his own mendacious lawsuit when a victim refuses to sign Windermere's dark clause settlement agreement that has cost the victimized party so much distress and money to defend.
Windermere Services Governing Person and attorney—WSBA# 26636—Paul Drayna (left) has even more stringent ethical requirements placed upon him through his collateral professions of Lawyer and Notary Public; and Drayna is also bound by the Model Rules of Professional Conduct. But Mr. Drayna is not just practicing marketing fraud at Windermere. As Windermere in-house counsel, Drayna oversees Windermere's legal strategy of abusing process by falsely suing victims for libel and defamation, and then attempting to intimidate and coerce those victims out of their speech rights and into Windermere's Dark Clause silence agreement. When victims WON'T sign the Windermere Dark Clause, Drayna runs away too, and voluntarily dismisses his own company's lawsuit under Civil Rule 41—but only after first costing the victim thousands to defend the phony lawsuit. Drayna is even copied on the mendacious, Demco-authored settlement documents meant to quash speech rights and be signed by Windermere victims. Drayna is also listed on the Board of Directors at Seattle Pro Musica, "a world of choral beauty," as being Pro Musica's Corporate Secretary and Legal Counsel. Pro Musica states as part of its mission "Respect/Integrity—a principle of respect and integrity in all our endeavors." So while Mr. Drayna is ruining lives by prosecuting costly, false and mendacious lawsuits that seek to intimidate Windermere victims and terminate their speech rights, he is also promoting "...a belief in the importance of music as a means of connection to each other and the community." Visitors to WindermereWatch.com and responsible citizens alike are urged to boycott Seattle Pro Musica concerts. An official Seattle Pro Musica protest page will be posted here soon.
WINDERMERE'S DEMCO LAW FIRM: ESCHEWING ETHICS and DOING WHAT OTHER LAWYERS JUST WON'T DO
Attorney and multi-office Windermere broker John Demco (left) is the ethically-elastic Windermere kingpin lawyer who operates Demco Law, Windermere’s in-house legal firm, whose primary job is to stall and outspend small fry consumers damaged by dishonest Windermere brokers, agents and franchise owners. When an innocent real estate consumer has the misfortune to suffer one of Windermere’s many bad apples, Demco Law Firm will refuse to settle the matter forthrightly, no matter what conspicuously unlawful or offensive conduct the agent or broker has committed. Demco and Windermere will force the aggrieved party to sue or swallow their damage and go away—standard Windermere operating procedure.
WindermereWatch has compiled voluminous evidence that Windermere-Demco attorney Matthew F. Davis (left), WSBA# 20939, is the kind of lawyer about which jokes are coined. Davis is franchiser Windermere Services' frontline bully—the guy in the legal trenches actually wrecking lives, making threats, and suing victims who speak out. When Shakespeare was recommending "The first thing we do, let's kill all the lawyers," in Henry the Sixth, Part 2, he was talking about egomaniacal lawyers like Matt Davis.
Attorney Matt Davis of Windermere's Demco Law Firm is so unethical, so deceitful and intimidating, that he's famous in law circles. As Windermere-Demco's lead attorney, Matthew F. Davis is renown for his dishonesty, dubious legal tactics, lack of decency and disrespect for the rules of professional conduct. He will do absolutely anything to win—without regard for truth or justice. He will lie to courts and opposing parties. He will file fallacious and erroneous documents with the court. He will email opposing parties telling them not to hire a lawyer when he has just served them a lawsuit. He will call a judge's chambers and request more time without informing the opposing party. He will file orders for a bench trial when he knows a jury trial has been demanded and paid for. He will trick, stall, coerce, menace and threaten. He will invent and extend mendacious Windermere litigation and abuse the legal process for no other reason than to exhaust an opponent’s pocketbook. If he can, he will get YOUR attorney to quit—a favorite tactic.
Windermere, Davis and Demco Law will push a $5 cat poop case all the way to the state supreme court just to avoid paying damages—because it’s all in the Windermere operating budget. And in the end, Windermere and Davis will try to coerce silence about your Windermere experience by trying to make you sign a "settlement" agreement that terminates your speech rights, so you can't ever inform the public about your Windermere debacle. What if you DON'T sign that you'll shut up, and then SPEAK UP instead? Windermere-Demco's Matt Davis will sue you for libel and defamation, then run away and dismiss his own lawsuit on the eve of trial—because after all—you're telling the truth.
Windermere's Clear and Overt Marketing Fraud:
"THE HIGHEST ETHICAL STANDARDS. UNCOMPROMISING HONESTY AND INTEGRITY."
—The Windermere Real Estate Mission Statement
Windermere widely promotes its deceptive express warranty in sales documents and on the internet which states "We are committed to... The highest ethical standards. Uncompromising honesty and integrity." In other Windermere promotion, like the Puget Sound Business Journal, Windermere CEO Geoff Wood is quoted as saying "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." The article goes on to say, "Geoff oversees marketing, legal, financial and internet development services throughout the Windermere network..." Mr. Wood claims absolute dominion over both Windermere legal and internet strategy, making him chief architect of Windermere marketing fraud.
Effective reportage can be harsh in recounting facts, but it must be said in consideration of all the Windermere victims profiled here who truly sought Windermere's vaunted honesty and integrity, that Windermere Services CEO Geoffrey P. Wood is simply lying when he states his company's utterly false and fraudulent commitment to honesty and integrity. He both lies and deceives again when he says that "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." Wood clearly doesn't do what he says he's going to do—be committed to uncompromising honesty and integrity. Wood himself is indeed IN the real estate business and his word is absolutely no good at all. He sues victims of Windermere misconduct for trade libel and defamation to shut them up, and then he tries to use the legal system to suppress victims' speech rights when they ask him to actually perform on the warranty he promotes. As this website proves, Mr. Wood does anything BUT what he says he's gonna do. Far from providing victimized Windermere customers a commitment to high ethical standards, honesty and integrity, Wood and Windermere run away and hide behind their lawyers when innocent consumers are ruined by their Windermere experience.
John W. Jacobi, Geoff Wood, his wife Jill Jacobi-Wood, and governing cohorts John O'brien "OB" Jacobi and attorney Paul Drayna have gone to the absolute ends of the earth in stonewalling, ignoring, denying and fleeing any and all responsibility for Windermere wrongdoing and misconduct. When called upon by victimized Windermere consumers to make good on its warranty of honesty and integrity, Windermere even states in legal pleadings that Windermere agents are NOT agents of Windermere at all—but independent contractors. As the legally-designated Governing People and top managers of the Windermere empire who drive policy, ethics and market promotion, it demands repeating that John W, Jacobi, Geoff Wood, Jill Jacobi-Wood, John OB Jacobi and attorney Paul Drayna are all clearly lying when they promise high ethical standards and uncompromising honesty to the public and consumers of real estate services.
Protect your life, home, family and future by cancelling or not renewing your Windermere listing. Don't risk doing business with Windermere Real Estate, the brand built on lies, fraud and ruined lives. Refuse to fund public predator Windermere Real Estate with commission from the sale of your home.
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Is WindermereWatch.com of social benefit to consumers and the public? You decide:
Windermere Real Estate is one of our country’s largest real estate companies and widely promotes a fraudulent express warranty that states “We are committed to... The highest ethical standards. Uncompromising honesty and integrity.” The definition of an express warranty from Black's Law Dictionary is: "A warranty created by the overt words or actions of the seller. • Under the UCC, an express warranty is created by any of the following: (1) an affirmation of fact or promise made by the seller to the buyer relating to the goods that becomes the basis of the bargain."
But when customers are victimized by dishonest Windermere brokers and agents, and complain in writing through legal counsel to franchiser Windermere Services Company, it is absolutely silent in the face of clear and convincing evidence, and forces the customer to sue or go away. In many cases, unsuspecting consumer lives are thrown into complete chaos through costly litigation; and also because the subject homes may actually be uninhabitable or unserviceable for reasons about which Windermere knew and had a legal obligation to disclose—but did not. For some victims, the long and expensive litigation forced upon them even results in bankruptcy and homelessness. Despite their clear evidence, many victims go on to lose in court because they can't afford attorneys or have no legal experience, and Windermere exploits those impediments to endless advantage—lives, homes, and personal finances are ruined forever. And Windermere expects those victims to just go away without their lives and homes, merely for buying a house through Windermere Real Estate, innocently.
Although such irrefutable evidence of Windermere broker/agent misconduct has been presented to franchiser Windermere Services Company, it knowingly continues collecting commissions from dishonest agents and brokers by deliberately passing them on to other unwitting consumers. Just one example is Windermere S.C.A. Redmond's Paul Stickney, who received a $522,200 court judgment for not disclosing a conflict of interest, but is still producing commissions for his Windermere SCA franchise, and Windermere Services Company. Is that the "Highest ethical standards. Uncompromising honesty and integrity?" You may want to search and visit more websites about Windermere's predatory business conduct.
When victims use the media to report their Windermere experiences honestly, Windermere sues them for libel and defamation through false lawsuits to intimidate, silence, and hush bad PR—read one of those lawsuits here. It then tries to coerce victims into signing a “dark clause settlement agreement” that permanently terminates their speech rights—read some of those "settlement" agreements here. Through an expensive and emotionally distressing roller coaster ride with Windermere's nasty Demco lawyers, a victim of Windermere fraud is told they will be taken all the way to trial on trumped-up libel and defamation charges, and if they don't sign the dark clause, their life and future will be ruined. When a victim persists in refusing to sign, Windermere voluntarily dismisses its own lawsuit under Civil Rule 41, just before trial, after costing the victim years and yet thousands more to defend against the false action. This predatory legal tactic is known as abuse of process or malicious prosecution. In one example cited below, franchiser Windermere Services Company served an outspoken victim a lawsuit for libel and defamation, and then immediately sent them an email instructing that they "...need not hire an attorney," and further stating, “…we will try to resolve this directly and outside the legal system.”
Every Windermere office in every state is legally tied to franchiser Windermere Services Company's fraudulent express warranty, false advertising, predatory conduct and policies through privity and its pecuniary franchise agreement. Some legal observers believe that Windermere's conduct has RICO and Civil Rights violation implications. If you have recently purchased a Windermere franchise without having been disclosed Windermere's falling brand value, PR decline, and its adverse website problems, click here for its duty of disclosure under Federal Trade Commission rules. Proof that Windermere Services Company knew about WindermereWatch.com in March of 2007 is in this document.
Windermere Real Estate is a textbook corporate predator who operates franchises in Washington State, Oregon, California, Arizona, Nevada, Utah, Idaho, Montana, Hawaii and British Columbia. Windermere repeatedly makes the false claim that it has offices in Wyoming, but it does not. If you’re buying or selling property through ANY Windermere office, a percentage from your transaction will be used by franchiser Windermere Services Company to silence and financially ruin innocent parties who’ve encountered Windermere fraud. Windermere won't pay legitimate damages or acknowledge wrongdoing, and will stall settlement of cases all the way to state supreme courts, a legal strategy that Windermere routinely employs to bankrupt victims and exhaust their resources.
We believe the information presented here is of profound social benefit to consumers and the community, and we are dedicated to providing it.
THROUGH FEES AND COMMISSIONS PAID TO FRANCHISER WINDERMERE SERVICES COMPANY, EVERY WINDERMERE NETWORK OFFICE IN EVERY STATE IS AN ENTHUSIASTIC PARTNER AND KNOWING ACCESSORY TO WINDERMERE MARKETING FRAUD AND ITS PREDATORY POLICIES