Post on 31-Jul-2020
Page 1 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
JOSEPHINE M. GANTT,
Plaintiff,
vs.
RE/MAX EQUITY GROUP d/b/a
SACAGAWEA, LLC, a Delaware
Corporation; ERIN RENWICK; ROD
RENWICK; GARY HORTON; and
SCOTT WIRKUS,
Defendants.
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Case No. 16CV02127
FIRST AMENDED COMPLAINT – Elder
Abuse, Common Law Rescission, Unlawful
Trade Practices, Breach of Fiduciary Duty,
Negligent Misrepresentation, Declaratory
Relief
CLAIMS NOT SUBJECT TO
MANDATORY ARBITRATION
Amount Prayed For: $450,000;
Filing Fee per ORS 21.160(1)(c): $531
JURY TRIAL DEMANDED
INTRODUCTION
1.
Plaintiff Josephine Gantt is an 82 year old woman who has resided in her home in
Northeast Portland for approximately 47 years. It is her only asset and the place where she
raised her four children as a single, working parent. Mrs. Gantt suffers from high blood
pressure, vision complications and impairments, and severe arthritis. Over the last twelve
months, following the death of her sister and nephew, and being defrauded into selling her
home, she has experienced depression and difficulty concentrating.
2.
Beginning in the fall of 2014, Defendant RE/MAX Equity Group (“RE/MAX”) and
its agents began a campaign to pressure and coerce Mrs. Gantt into selling her home by
2/2/2016 10:18:50 AM16CV02127
Page 2 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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befriending her and gaining her trust. RE/MAX, through its agents Defendants Erin Renwick
and Rod Renwick, lied to Mrs. Gantt about documents she was signing, and deceived Mrs.
Gantt into selling her home without her knowledge or consent to a buyer represented by
RE/MAX. Once the true nature of the documents was revealed to Mrs. Gantt, she was
unequivocal in her request that they be immediately revoked due to her mistaken belief as to
what she was signing.
3.
RE/MAX and its agents Rod Renwick, Erin Renwick, and Gary Horton breached
their fiduciary duties in moving forward with the sale despite Mrs. Gantt’s clear direction to
the contrary. RE/MAX also represented the proposed buyer, Defendant Scott Wirkus, in the
proposed sale. Mr. Wirkus had actual or constructive knowledge through his agent of the
unlawful practices alleged in this complaint, and nonetheless sought to compel the sale and
engage in a wrongful taking from a vulnerable person.
4.
Mrs. Gantt brings claims based on Oregon’s elder abuse statutes, ORS 124.110 et
seq.; common law rescission; breach of fiduciary duties; unlawful trade practices, ORS 646
et seq.; negligent misrepresentation; and declaratory relief. Mrs. Gantt seeks three times her
economic damages of $50,000 and emotional distress damages of $100,000, for a total of
$450,000, as well as reasonable attorney fees and costs. Mrs. Gantt also seeks equitable
relief in the form of a court order rescinding the alleged contract and declaring the arbitration
clauses contained in Defendants’ boilerplate contracts unconscionable and unenforceable.
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Page 3 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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JURISDICTION AND VENUE
5.
The Court has jurisdiction over this action pursuant to ORS 14.030 because Plaintiff
is an Oregon citizen. In addition, all Defendants have engaged in conduct in Oregon that has
given rise to this complaint and the principal place of business of Defendant RE/MAX is in
Oregon.
6.
Venue in Multnomah County is appropriate under ORS 14.080 because one or more
of the Defendants has an office where they conduct regular, sustained business activity in
Multnomah County.
7.
This Court has power to issue the declaratory judgment sought by Plaintiff pursuant
to ORS 28.010.
THE PARTIES
8.
Plaintiff Josephine M. Gantt was born in 1933. At all relevant times, Mrs. Gantt has
resided in Multnomah County, Oregon, and has been the owner of a house located within
Multnomah County commonly known as
in the CITY of PORTLAND,
COUNTY of MULTNOMAH, STATE of OREGON.
9.
Defendant Sacagawea LLC is a Delaware Corporation doing business as RE/MAX
Equity Group through an Assumed Business Name licensed in Oregon with its principal
place of business located at 6245 SW Capitol Highway, Portland, OR 97239.
Page 4 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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10.
At all times relevant, Defendants Erin Renwick, Rod Renwick, and Gary Horton were
and are agents of Defendants RE/MAX Equity Group and Sacagawea, LLC.
11.
Defendant Scott Wirkus is a resident of Washington State, and his current address is
, Ollala, WA 98359.
12.
On information and belief, each of the Defendants had knowledge of and provided
substantial assistance in the unlawful practices alleged in this complaint.
FACTUAL SUMMARY
13.
Mrs. Gantt is an 82 year old woman who lives alone in the home that she purchased
in 1969, located at , Portland, Oregon. Mrs. Gantt suffers from various
disabilities including high blood pressure, severe vision impairments, and arthritis that make
walking and other daily activities difficult. There are times when Mrs. Gantt is unable to get
out of bed due to the pain from her arthritis.
14.
In September 2014, Mrs. Gantt responded to an advertisement she saw for RE/MAX
because she was interested in finding out the value of her home. Defendant Erin Renwick, a
Real Estate Agent at RE/MAX, responded to the online questionnaire completed by Mrs.
Gantt with a phone call. During that first contact, Mrs. Gantt explained that she did not
intend to sell her home in the near future but would like to know the value of her home. Mrs.
Gantt recognized that living independently at her age was becoming increasingly
Page 5 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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challenging, but she was still able to do so and had no immediate plans of moving or a
place to which she could relocate.
15.
During that phone call, Erin Renwick offered to come to Mrs. Gantt’s home to
discuss the value of her home. In October 2014, Erin Renwick arrived at Mrs. Gantt’s home
with flowers. She also brought Mrs. Gantt a comparable market analysis of her home and
expressed interest in representing Mrs. Gantt in any future sale. The analysis at that time
valued Mrs. Gantt’s home in the range of $399,000 to $454,000. Mrs. Gantt declined to list
her home for sale or to engage RE/MAX in any further services but indicated that she was
very grateful for the assistance and would keep Erin Renwick in mind should she choose to
sell her home in the future. Mrs. Gantt again told Erin Renwick that she was not ready to
sell, and that she did not have anywhere to go.
16.
Over the subsequent months, Erin Renwick engaged in efforts to win over Mrs.
Gantt’s trust. Mrs. Gantt would share with Erin Renwick challenges she was having with her
health, her sadness over the illness of her sister, and her ongoing issues with her vision.
Beginning in early 2014, due to an allergic reaction to medication, Mrs. Gantt was having
increased difficulty seeing out of what had historically been her “good eye.” Mrs. Gantt
shared these troubles with Erin Renwick during their numerous phone conversations. In each
conversation, Erin Renwick would bring the conversation back to the sale of Mrs. Gantt’s
home. Mrs. Gantt, hoping to avoid a confrontation, would try and explain to Erin Renwick
that she was not ready to sell, and that her immediate goal was to get her house in the best
possible condition and then enjoy living in her home with its new makeover.
Page 6 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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Mrs. Gantt has always taken great pride in her home and garden, and the interior and
exterior of her home are in excellent condition. She was in no rush to move and was proud
of her ongoing ability to live independently in the home she loved. The home is also
conveniently located near her family, friends, and doctors. Mrs. Gantt can drive right up to
the side door to enter her home and can live comfortably on the main level despite her
mobility and vision issues.
17.
In November 2014, Erin Renwick let Mrs. Gantt know that she wanted to come by
with a pie for Mrs. Gantt for the Thanksgiving Holiday. Mrs. Gantt declined, explaining that
she was feeling very ill and could barely get out of bed. Erin Renwick came by anyway, and
was shocked at the condition of Mrs. Gantt. Despite being aware of Mrs. Gantt’s ailing
health, Erin Renwick continued to move aggressively in her efforts to convince Mrs. Gantt to
sell her home.
18.
In December 2014, Mrs. Gantt shared with Erin Renwick the news that she had lost
her sister, which was devastating to Mrs. Gantt. She also told Erin Renwick that she was
continuing to have difficulties with her eyesight. An ongoing issue for Mrs. Gantt has been
an intense sensitivity to odors and fumes, which caused periods of extreme blurred vision and
pain. These spells can be unpredictable and very disorientating. Mrs. Gantt had come to rely
on Erin Renwick as a confidant and would share with her challenges she was having in her
life. She trusted Erin Renwick and never imagined she would defraud her.
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Page 7 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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19.
Throughout the winter of 2014 and spring of 2015, Mrs. Gantt made several
improvements to her home. Erin Renwick kept close tabs on this process, providing Mrs.
Gantt with the names of painters and other handymen who could assist her. Mrs. Gantt hired
a painter suggested by Erin Renwick to paint her home, inside and out. During each of these
phone calls, Erin Renwick continued to bring up the topic of selling the home and brought
Mrs. Gantt flowers on several different occasions.
20.
In July 2015, Mrs. Gantt, feeling so much pressure from Erin Renwick, fabricated a
story regarding someone else buying the home to give herself a reprieve from Erin
Renwick’s requests that she sell. However, this had the opposite effect as Erin Renwick
became frantic in her efforts to get Mrs. Gantt to agree to allow her to sell the home. Erin
Renwick called constantly asking for the status of the other buyer.
21.
In late July 2015, Mrs. Gantt informed Erin Renwick that the other buyer had not
been able to get a loan.
22.
In early August 2015, Erin Renwick called Mrs. Gantt and said “Guess what? I have a
buyer in my office that wants to buy your home,” and informed Mrs. Gantt that the buyer had
made an offer to buy Mrs. Gantt’s home. Mrs. Gantt did not understand how there could be
an offer on her home when she had not yet put it up for sale or agreed to be represented by
Erin Renwick. Erin Renwick indicated that the man in her office, Scott Wirkus, had already
seen her house, was a qualified buyer who could put lots of money down, and would agree to
Page 8 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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buy her house “as is.” Mrs. Gantt was taken aback that Erin Renwick was talking to buyers
about her home and that a buyer was looking at her home without her knowledge. Mrs.
Gantt refused the offer, stating that she was not ready to sell.
23.
Shortly thereafter, Erin Renwick requested that Mrs. Gantt reconsider and read a
letter that the buyer, Mr. Wirkus, had written to Mrs. Gantt regarding his desire to purchase
her home. After failing to send it electronically, Erin Renwick insisted that she read the letter
to Mrs. Gantt over the phone.
24.
Mrs. Gantt felt very upset by the contents of the letter. Mr. Wirkus statements of
adoration for her home and his overwhelming desire to buy it alarmed Mrs. Gantt, who
perceived the overtures as an invasion of her privacy. She was not ready to sell and felt
confused as she had not even made the decision to put it on the market. She began to feel
unsafe in her home, and worried that Mr. Wirkus was watching her. She recalls feeling sick
to her stomach with fear of Mr. Wirkus. She worried that she was being pushed into a corner
by an individual whom she viewed as unstable and attempting to pressure her.
25.
Mrs. Gantt also began to suspect that Erin Renwick was no longer on her side.
Whereas Erin Renwick had previously discussed excitedly with Mrs. Gantt ways she could
get a higher selling price, she began to instead lower Mrs. Gantt’s expectations and
discourage improvements.
On August 20, 2015, Mrs. Gantt’s nephew, with whom she was very close, died
suddenly. Mrs. Gantt told Erin Renwick that she was devastated by the loss and needed to
Page 9 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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the put any discussions related to the sale on hold. Mrs. Gantt wanted to visit her family
during this difficult time, but felt she could not leave due to the situation with Erin Renwick.
26.
In late August 2015, Erin Renwick called Mrs. Gantt several times to discuss the offer
and letter from Mr. Wirkus. During one conversation when Mrs. Gantt indicated that she still
was not ready to sell and still had plans for future improvements on her home, Erin Renwick
asked her “What’s wrong with you? Why can’t you get ready to sell?” and “You need to
hurry up and get this house on the market.” Mrs. Gantt felt ashamed and embarrassed and
explained that she was older and it took her a long time to do anything, especially with her
vision and mobility impairments.
27.
Despite Mrs. Gantt’s clear and repeated statements for Erin Renwick to stop
pressuring her to sell, Erin Renwick continued to call her. Mrs. Gantt began to feel
overwhelmed by the pressure and finally capitulated to meeting with Erin Renwick in person
to discuss retaining her services to begin preparing herself for the sale of her home. While
she did not want to sell her home, she thought that agreeing to an agreement of representation
might reduce Erin Renwick’s pressure and give Mrs. Gantt room to breathe and consider next
steps.
28.
During a phone call in late August 2015, Mrs. Gantt explained to Erin Renwick that
she imagined a large open house and a selling period of a longer duration in which she might
obtain the highest sale price for her home and prepare for a move. Due to her fragile
emotional state, she was looking for the easiest way to slow Erin Renwick down. Mrs. Gantt
Page 10 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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was deeply saddened during this time. She had stopped taking her medication, missed doctor
appointments, and was unable to eat, sleep, or concentrate. She also fell ill again during this
time with a severe cold. Her blood pressure began to skyrocket, and she often felt dizzy and
short of breath. She began to wish she had never met Erin Renwick and did not know how to
get out of the situation.
29.
On or about September 4, 2015, Erin Renwick came to Mrs. Gantt’s home. Erin
Renwick presented documents to Mrs. Gantt that Erin Renwick referred to as a listing
agreement. This was consistent with their phone call and what Mrs. Gantt understood she
would be signing. Because she still trusted Erin Renwick, she simply signed where
indicated, certain that this was simply a listing agreement.
30.
At no time before or during signing did Erin Renwick disclose that the documents
provided were for the actual sale of Mrs. Gantt’s home. Mrs. Gantt informed Erin Renwick
that she could not read the documents clearly because of her vision impairments. Erin
Renwick assured Mrs. Gantt that it was normal to sign many documents to list her home for
sale and indicated where Mrs. Gantt should initial or sign. Mrs. Gantt often keeps her lights
low due because of her eyes and their sensitivity to light. She was also very distraught and
sad at that time, barely able to meet her own basic needs. Erin Renwick moved quickly
through the documents, pointing where to sign. She explained no terms to Mrs. Gantt,
turning pages quickly. The only term she explained was the amount of fees Erin Renwick
would receive for her services. It was not disclosed to her, at any point, that several
documents contained arbitration agreements.
Page 11 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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31.
Mrs. Gantt signed many documents on September 4, 2015 at Erin Renwick’s
direction, all with the understanding that they were documents to procure services for a
listing agent. Specifically, Mrs. Gantt signed:
(a) an agreement to allow RE/MAX to list her home for sale including the forms
required to advertise her home on the Regional Multiple Listing Service (“RMLS”) that also
included an undisclosed arbitration clause;
(b) a sale contract rejecting an offer previously made by Mr. Wirkus on
September 1, 2015 to buy her home for $420,000 that also included an undisclosed
arbitration clause;
(c) a document making a counteroffer to Mr. Wirkus for $430,000;
(d) a document entitled “disclosed limited agency agreement” which disclosed
that RE/MAX represented the buyer and the seller; and
(e) other miscellaneous documents normally used in a real estate transaction,
including a professional inspection disclosure, a lead-based paint disclosure, a promissory
note for earnest money, and seller’s property disclosure statement.
32.
After signing the documents and before Erin Renwick left her home, Mrs. Gantt
learned of the nature of the documents through a discussion with Erin Renwick in which she
informed Mrs. Gantt she would need to let Mr. Wirkus into her home to view it. Mrs. Gantt
was shocked and confused. She pleaded with Erin Renwick, saying “I trusted you. How
could you do this to me?” She further implored Erin Renwick to “tear up” the documents
and to “void it, do whatever you have to do, I am not ready to sell my house. I have nowhere
Page 12 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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to go.” Erin Renwick responded “there is nothing I can do, these are legal documents. I
don’t know what to do. I bet Scott [Wirkus] will let you stay here for as long as you need.”
A heated argument ensued as Mrs. Gantt pleaded with Erin Renwick that Mrs. Gant did not
want to the sell the house.
33.
Erin Renwick left without leaving a copy of the documents she had signed for Mrs.
Gantt. Mrs. Gantt was still visibly upset and in shock over what had occurred. She felt
betrayed and confused. She also felt embarrassed and humiliated that she had allowed Erin
Renwick to take advantage of Mrs. Gantt.
34.
Contrary to Mrs. Gantt’s clear direction to stop the sale, Erin Renwick transferred the
documents through Mr. Horton to Mr. Wirkus later that same day. Mr. Wirkus signed the
alleged counteroffer from Mrs. Gantt later that day, on September 4, 2015.
35.
Based on information and belief, Erin Renwick listed Mrs. Gantt’s home for sale on
RMLS on September 8, 2015 as “sale pending” and “seeking back up offers,” without Mrs.
Gantt’s knowledge and despite Mrs. Gantt’s wishes to cancel the listing agreement.
36.
Between September 5 and September 9, Erin Renwick left a series of voicemail
messages instructing Mrs. Gantt to call her back and “talk about this like adults.” She also
informed Mrs. Gantt that Mr. Wirkus would be coming over on September 11, and that she
needed to let him see her house.
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Page 13 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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37.
On or around the afternoon of September 11, 2015, Erin Renwick arrived at Mrs.
Gantt’s home. There was clear hostility between her and Mrs. Gantt. Mrs. Gantt told her
“you really hurt me. You hurt me a lot. I never thought you were that kind of a person. I had
a lot of trust in you.” To which Erin Renwick responded “I wish it hadn’t happened, but
there’s nothing I can do. You have to allow this walkthrough to happen today and to let the
inspector in on the September 14, 2015.” Mrs. Gantt asked what she was talking about, and
for the first time, Erin Renwick informed Mrs. Gantt that she had scheduled an inspection for
September 14, 2015. Erin Renwick then provided the copies of the documents Mrs. Gantt
had signed on September 4, 2015 for the first time since that meeting.
Mrs. Gantt informed Erin Renwick that the time she had scheduled for the inspection
was too soon and the date did not work for her. Later, Mr. Wirkus and his realtor, Mr.
Horton, another RE/MAX agent, arrived and walked through the home. After that time, Mrs.
Gantt declined any further communication with Erin Renwick.
38.
On September 13, 2015, Erin Renwick left a letter on Mrs. Gantt’s side door. The
letter acknowledged that Mrs. Gantt did not want to sell the home, and encouraged her to
“follow the contract” and allow the inspection. The note also discussed ways that sales often
fail, and that Mrs. Gantt’s might get out of the sale after the inspection. The note purported
to discuss how this sale is in Mrs. Gantt’s “best interests” and asked Mrs. Gantt to “trust her
to take care” of the situation.
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Page 14 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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39.
Mrs. Gantt cancelled the inspection scheduled for September 14, 2015. On
September 14, 2015, Erin Renwick left Mrs. Gantt a voicemail message letting her know that
the principal broker, Rod Renwick, was taking over the sale and that she would have no
further contact with Mrs. Gantt. Shortly thereafter, Mrs. Gantt received a letter from Mr.
Wirkus’ attorney instructing Mrs. Gantt on her alleged obligation to proceed with the
inspection and the sale.
40.
Because the letter from Mr. Wirkus’ attorney frightened Mrs. Gantt and believing
Erin Renwick’s representations that the deal may still fall through, Mrs. Gantt called Rod
Renwick and scheduled the inspection. Rod Renwick informed Mrs. Gantt that Mr. Wirkus
did not want her on the property at the time of the inspection, set for September 17, 2015.
She asked why and told Rod Renwick that she was not leaving and that she would be
remaining on her property.
41.
On September 17, 2015, Mrs. Gantt allowed the inspector and Mr. Horton into her
home. Mr. Horton informed her she did not need to leave. When Mr. Wirkus arrived,
however, he informed his agent that he did not want Mrs. Gantt anywhere near the property.
Mr. Horton told Mrs. Gantt that “she needed to go,” and followed her out to her car. Mrs.
Gantt offered to stay in her car but Mr. Horton told her she was not allowed to be on the
block. He said he would call her when he was finished, probably two to three hours. Mr.
Horton offered Mrs. Gantt twenty dollars to go down the street and get some breakfast. Mrs.
Gantt refused the money and drove her car around aimlessly because she had nowhere to go.
Page 15 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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She felt afraid and alone, and worried about her belongings and the strangers in her home.
42.
Shortly after the inspection on September 17, 2015, Defendant Rod Renwick
presented a document entitled an “Addendum to Real Estate Agreement” (the “First
Addendum”) for Mrs. Gantt to sign. The First Addendum had been signed by Mr. Wirkus on
September 11, 2015 after the walkthrough and provided that “Buyer approves of the
walkthrough and moves forward with purchase of property. All other terms and conditions
remain the same.”
43.
Although she did not agree to the sale, Mrs. Gantt was told by Rod Renwick that she
did not have a choice so she signed the First Addendum. Mrs. Gantt informed Rod Renwick
of Erin Renwick’s conduct and misrepresentation regarding the documents. Rod Renwick
responded that Erin Renwick should not have done that, stating further “Erin knows that is
not how we do things.”
44.
Shortly thereafter, Rod Renwick told Mrs. Gantt that Mr. Wirkus was requesting
repairs be made, and he presented two additional counteroffers related to repairs in the form
of addendums to Ms. Gantt. The Second Addendum was signed by Mr. Wirkus on
September 17, 2015, and rejected by Mrs. Gantt on September 17, 2015. The Second
Addendum provided that “Buyer approved of the home inspection with the following
condition: Seller to contribute $5800 toward buyers closing cost. Seller to respond by
9/20/2015 by 12pm. All other terms and conditions remain the same.”
///
Page 16 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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45.
Shortly thereafter, Rod Renwick presented a Third Addendum to Mrs. Gantt that had
been signed by Mr. Wirkus on September 19, 2015, but was also rejected by Mrs. Gantt. The
Third Addendum provided that “Buyer approved of the home inspection with the following
condition: Seller to contribute $2900 toward buyers closing cost. Seller to respond by
9/20/2015 by 12pm. All other terms and conditions remain the same.” At no time did Rod
Renwick advise Mrs. Gantt that either of these counteroffers might allow her to back out of
the sale.
46.
RE/MAX had scheduled the closing of the alleged sale for October 6, 2015. Mrs.
Gantt notified RE/MAX before that time that she was not attending the closing due to illness
and that was trying to get legal help.
47.
Since October 6, 2015, Mr. Wirkus’ attorneys have sent Mrs. Gantt several letters
stating that Mr. Wirkus intends to compel the sale of her home through arbitration under the
arbitration clause in the alleged sale contract which indicated that the parties would agree to
binding arbitration through the Arbitration Service of Portland (“ASP”). This was the first
time that Mrs. Gantt had heard of any alleged obligation to arbitrate disputes related to the
alleged contract. In December 2015, Mrs. Gantt received notice that Mr. Wirkus had
scheduled arbitration for February 10, 2016, to compel the sale of her home.
48.
Mrs. Gantt has experienced depression, a profound sense of despair over these events,
and severe emotional distress. Historically, she has been a person who could get things done.
Page 17 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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Now she finds herself simply sitting and staring, unable to figure out where to start. She has
difficulty sleeping, concentrating, and enjoying time with her grandchildren, an activity she
historically enjoyed. When Mrs. Gantt tried to write Erin Renwick about not wanting to sell
her home, it took her all day to figure out how to write four sentences. She is easily
distracted, has difficulty getting organized, attending to one task, and these symptoms
increase when her vision is blurry.
FIRST CLAIM FOR RELIEF
ELDER ABUSE, ORS 124 et seq.
(Against All Defendants)
49.
Mrs. Gantt realleges and incorporates the paragraphs 1-48 above.
50.
At all relevant times, Plaintiff Josephine Gantt was at least sixty-five years old, and
therefore was “elderly” and “vulnerable” as those terms are defined in ORS 124.100(1).
51.
Defendants are liable for financial abuse of a vulnerable person, as provided by ORS
124.100 and ORS 124.110 in that:
a. Defendants misrepresented to Mrs. Gantt the nature of the documents she
signed on or about September 4, 2015;
b. Defendants took money or property from Plaintiff in the form of an obligation
to sell her home and the loss cost of improvements and investments made to the property
between 2014 and 2015;
c. Defendant misrepresented to Mrs. Gantt her ability to rescind the contract
Page 18 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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when presented with a counter-offer;
d. Defendants misrepresented to Mrs. Gantt the value of her home;
e. Defendants misrepresented to Mrs. Gantt their obligations under their real
estate duties when acting as both seller and buyer; and
f. Defendants misrepresented to Mrs. Gantt what options were available to her
after she expressed her desire to not sell her home after September 4, 2015.
52.
As a result of Defendants’ actions Mrs. Gantt has suffered economic damages in the
form of an obligation to sell her home.
53.
Mrs. Gantt seeks equitable relief under ORS 124.120 in the form of a court order
rescinding the alleged contract and declaring the arbitration clauses unenforceable. Mrs.
Gantt is entitled to three times her economic damages of $50,000 and emotional distress
damages of $100,000, pursuant to ORS 124.100(2)(a) and (b), for a total of $450,000.
Pursuant to ORS 124.100(1)(c), Mrs. Gantt is entitled to reasonable attorney fees and costs.
SECOND CLAIM FOR RELIEF
COMMON LAW RESCISSION
(Against All Defendants)
54.
Mrs. Gantt’s property would be sold at far below market value unless the contract is
rescinded. Mrs. Gantt has no adequate remedy at law. Upon learning the nature of the
transaction, Mrs. Gantt promptly notified the Defendants that she did not consent to the sale
of her home.
Page 19 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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55.
Under the following five counts which are each independent causes of action in
contract, Defendant seeks an order from the court preventing the unlawful sale of her home,
that the contract is rescinded immediately, and that she be granted restitution by the court.
Count 1: Misrepresentation
56.
Mrs. Gantt realleges and incorporates paragraphs 1-55 above.
57.
At the time Defendants induced Mrs. Gantt to agree to sell her home, Defendants
misrepresented the nature of the contract and concealed material terms of the contract. Mrs.
Gantt relied upon the representations of Defendants in signing documents that allegedly
obligated her to transfer her home to Mr. Wirkus.
58.
At the time of the transfer, Mrs. Gantt was ignorant of the falsity of the
representations made by Defendants.
59.
The contract should be found to be void because it was induced by Defendants’
misrepresentations.
Count 2: Undue Influence
60.
Mrs. Gantt realleges and incorporates paragraphs 1-59 above.
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Page 20 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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61.
RE/MAX and its agents abused its special relationship with Mrs. Gantt to gain an
advantage in the operation of a commercial enterprise.
62.
At the time Defendants induced Mrs. Gantt to agree to sell her home, Defendants
were aware and took advantage of Plaintiff’s susceptibility to undue influence, and used this
influence to induce Mrs. Gantt to agree to sell her home. In addition, Defendants engaged in
wrongful conduct by concealing the nature of the transaction and exercised undue influence
on Mrs. Gantt to cause her to incur an alleged obligation to sell her home without her
knowledge.
63.
Mrs. Gantt relied upon the misrepresentations of a trusted advisor, Defendant Erin
Renwick, in agreeing to sign documents that she could not read or understand as they were
explained to her.
64.
The contract should be found to void because Defendants exercised undue influence
on Mrs. Gantt, and used misrepresentations to take advantage of her vulnerability as an 82
year old with physical impairments who was in a weakened mental state known to
Defendants.
Count 3: Lack of Consent
65.
Mrs. Gantt realleges and incorporates paragraphs 1-64 above.
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Page 21 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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66.
Mrs. Gantt was never told the contents of the documents she was signing until after
the documents were signed. Mrs. Gantt has never consented to the sale of her home.
67.
The contract should be found to be void because Mrs. Gantt never expressed a
knowing mutual assent to the terms of the contract.
Count 4: Unilateral Mistake
68.
Mrs. Gantt realleges and incorporates paragraphs 1-67 above.
69.
Mrs. Gantt was never told the contents of the documents she was signing until after
the documents were signed. Mrs. Gantt was mistaken about the nature or the terms of the
contract, and the terms of the sale were material and basic to the contract. Defendants
induced, were aware of, and are attempting to take advantage of Mrs. Gantt’s mistake.
70.
The contract should be found to be void because Mrs. Gantt operated under a
unilateral mistake regarding the existence of a contract, and it would be inequitable to
enforce it at this time.
Count 6: Lack of Formation
71.
Mrs. Gantt realleges and incorporates paragraphs 1-70 above.
///
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Page 22 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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72.
Mrs. Gantt and Mr. Wirkus both signed the alleged counteroffer to purchase Mrs.
Gantt’s home for $430,000 on September 4, 2015.
73.
On September 19, 2015, Mr. Wirkus issued a counteroffer by asking Mrs. Gantt to
contribute $2900 in closing costs. Mrs. Gantt promptly rejected that counteroffer.
74.
Mr. Wirkus’s counteroffer of $432,900 attempted to modify a material term of
alleged contract, compensation, and thereby revoked his own prior acceptance and rejected
Mrs. Gantt’s prior counteroffer of $430,000.
75.
The contract should be found to be void for lack of formation.
THIRD CLAIM FOR RELIEF
UNLAWFUL TRADE PRACTICES ACT, ORS 646 et seq.
(Against Defendants RE/MAX, Erin Renwick and Rod Renwick)
76.
RE/MAX is Delaware corporation that holds a license issued by the Oregon Real
Estate Agency. Ron Renwick holds a license issued by the Oregon Real Estate Agency and
is a Principal Broker at RE/MAX. According to the Final Agency Acknowledgement in the
Sales Agreement, Defendants Erin Renwick, and Rod Renwick were the exclusive agents of
Mrs. Gantt in the relevant real estate transaction. On information and belief, Erin Renwick
was under the direct supervision of the principal broker Rod Renwick. All conduct of Erin
Page 23 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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Renwick can be imputed to Rod Renwick and RE/MAX since they participated in the
transaction, and stood to benefit from the transaction.
Count 1: Causing Confusion or Misunderstanding as to Affiliation, Connection
or Association with Another. ORS 646.608(1)(c).
77.
Mrs. Gantt realleges and incorporates the paragraphs 1-76 above.
78.
RE/MAX, Erin Renwick, and Rod Renwick knowingly caused confusion or
misunderstanding with regard to their affiliation and connection with Mr. Wirkus.
79.
Based on the misrepresentations of RE/MAX, Erin Renwick, and Rod Renwick, Mrs.
Gantt believed that she had no option but to proceed with the sale. Specifically:
a. They misrepresented to Mrs. Gantt the nature of the documents she signed on or
about September 4, 2015;
b. They misrepresented to Mrs. Gantt her ability to rescind the contract when
presented with a counter-offer;
c. They misrepresented to Mrs. Gantt the value of her home;
d. They misrepresented to Mrs. Gantt their obligations under their real estate duties
when acting as both seller and buyer; and
e. They misrepresented to Mrs. Gantt what options were available to her after she
expressed her desire to not sell her home after September 4, 2015.
80.
Mrs. Gantt relied on the misrepresentations of RE/MAX, Erin Renwick, and Rod
Renwick regarding the sale of her home.
Page 24 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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81.
RE/MAX, Erin Renwick, and Rod Renwick were aware that Mrs. Gantt relied on
their misrepresentations regarding the sale of her home.
82.
As a direct result of Mrs. Gantt’s reliance on the misrepresentations of RE/MAX,
Erin Renwick, and Rod Renwick, Mrs. Gantt has suffered actual damages for economic
losses and non-economic damages for mental and emotional distress.
83.
Under ORS 646.638(1), Mrs. Gantt is entitled to recover from Defendants RE/MAX,
Erin Renwick, and Rod Renwick statutory damages in the amount of $200, or her actual
damages, in an amount not to exceed $150,000, including damages for emotional distress,
whichever is greater. Pursuant to ORS 608.638(3), Mrs. Gantt also seeks costs and attorney
fees.
Count 2: Promises to deliver real estate goods or services within a certain period of time
with intent not to deliver them as promised. ORS 646.608(1)(q).
84.
Mrs. Gantt realleges and incorporates the paragraphs 1-83 above.
85.
RE/MAX, Erin Renwick, and Rod Renwick misrepresented to Mrs. Gantt the
documents presented to her for signature on or about September 4, 2015.
86.
Mrs. Gantt relied on the misrepresentations of RE/MAX, Erin Renwick, and Rod
Renwick when she signed what she believed to be a listing agreement. Had she known the
true nature of the documents, she would not have signed the documents.
Page 25 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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87.
As a direct result of Mrs. Gantt’s reliance on the misrepresentations of RE/MAX,
Erin Renwick, and Rod Renwick, Mrs. Gantt has suffered actual damages for economic
damages and non-economic damage for mental and emotional distress.
88.
RE/MAX, Erin Renwick, and Rod Renwick were aware that Mrs. Gantt relied on
their misrepresentations when she signed what she believed to be a listing agreement.
89.
Under ORS 646.638(1), Mrs. Gantt is entitled to recover from Defendants RE/MAX,
Erin Renwick, and Rod Renwick statutory damages in the amount of $200, or her actual
damages an amount not to exceed $150,000, including damages for emotional distress,
whichever is greater. Pursuant to ORS 608.638(3), Mrs. Gantt also seeks costs and attorney
fees.
Count 3: Makes false or misleading representations concerning credit availability or the
nature of the transaction or obligation incurred. ORS 646.608(1)(k).
90.
Mrs. Gantt realleges and incorporates paragraphs 1-89 above.
91.
Defendants RE/MAX, Erin Renwick, and Rod Renwick knew or should have known
that Mrs. Gantt was not aware of the documents she signed, did not want to sign the sale
documents, and did not understand the nature of her obligation or available remedies after
she was fraudulently induced to sign the contract.
///
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Page 26 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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92.
In misrepresenting the nature of the contract and concealing material terms of the
contract, Defendants RE/MAX, Erin Renwick, and Rod Renwick employed unconscionable
tactics, and misrepresented the nature of the transaction and the obligation incurred, in
violation of ORS 646.608(1)(k).
93.
Under ORS 646.638(1), Mrs. Gantt is entitled to recover from Defendants RE/MAX,
Erin Renwick, and Rod Renwick statutory damages in the amount of $200, or her actual
damages an amount not to exceed $150,000, including damages for emotional distress,
whichever is greater. Pursuant to ORS 608.638(3), Mrs. Gantt also seeks costs and attorney
fees.
FOURTH CLAIM FOR RELIEF
NEGLIGENT MISREPRESENTATION
(Against Defendants RE/MAX, Erin Renwick and Rod Renwick)
94.
Mrs. Gantt realleges and incorporates the paragraphs 1-93 above.
95.
Defendants RE/MAX and its agents are in the business of facilitating real estate
transactions. Ron Renwick holds a license issued by the Oregon Real Estate Agency and is a
Principal Broker at RE/MAX. According to the Final Agency Acknowledgement in the
Sales Agreement, Defendants Erin Renwick, and Rod Renwick were the exclusive agents of
Mrs. Gantt in the relevant real estate transaction. On information and belief, Erin Renwick
was under the direct supervision of the principal broker Rod Renwick. All conduct of Erin
Page 27 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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Renwick can be imputed to Rod Renwick and RE/MAX since they participated in the
transaction, and stood to benefit from the transaction.
96.
At all relevant times, RE/MAX, Erin Renwick, and Rod Renwick regularly provided
information to prospective buyers and sellers in real estate transactions. As part of these
efforts, RE/MAX, Erin Renwick, and Rod Renwick held themselves out as possessing
superior knowledge and expertise in real estate transactions. Mrs. Gantt relied on Defendants
RE/MAX, Erin Renwick, and Rod Renwick to exercise independent knowledge and
judgment on her behalf regarding her real estate transaction. As a result, there was and is a
special relationship of trust and confidence between Mrs. Gantt and Defendants RE/MAX,
Erin Renwick, and Rod Renwick.
97.
Defendants RE/MAX, Erin Renwick, and Rod Renwick supplied false information to
Mrs. Gantt regarding the real estate transaction to buy her home, and options available to her
after she was fraudulently induced to sign the contract on September 4, 2015 to stop the sale.
This information was provided by RE/MAX, Erin Renwick, and Rod Renwick in the course
of operating their business and for the guidance of Mrs. Gantt in her business transactions
with RE/MAX, Erin Renwick, and Rod Renwick.
98.
Specifically, RE/MAX, Erin Renwick, and Rod Renwick made the following
misrepresentations:
a. They misrepresented to Mrs. Gantt the nature of the documents she signed on or
about September 4, 2015;
Page 28 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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b. They misrepresented to Mrs. Gantt her ability to rescind the contract when
presented with a counter-offer;
c. They misrepresented to Mrs. Gantt the value of her home;
d. They misrepresented to Mrs. Gantt their obligations under their real estate duties
when acting as both seller and buyer; and
e. They misrepresented to Mrs. Gantt what options were available to her after she
expressed her desire to not sell her home after September 4, 2015.
99.
RE/MAX, Erin Renwick, and Rod Renwick knew or should have known that Mrs.
Gantt was not aware of the documents she signed, did not want to sign the sale documents,
and was not aware of options she could exercise to stop the sale form going forward. As a
result, RE/MAX, Erin Renwick, and Rod Renwick failed to exercise reasonable care or
competence in providing information to Mrs. Gantt, and in representing her in the real estate
transaction.
100.
Mrs. Gantt suffered pecuniary loss in the form of an obligation to sell her home for
less than fair market value.
101.
Based on the negligent misrepresentations of Defendants RE/MAX, Erin Renwick,
and Rod Renwick, Mrs. Gantt prays the court for an award of $50,000 for damages.
///
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Page 29 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
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FIFTH CLAIM FOR RELIEF
BREACH OF FIDUCIARY DUTIES
(Against Defendants Erin Renwick and Rod Renwick)
102.
Mrs. Gantt realleges and incorporates paragraphs 1-101 above.
103.
RE/MAX is Delaware corporation that holds a license issued by the Oregon Real
Estate Agency. Ron Renwick holds a license issued by the Oregon Real Estate Agency and
is a Principal Broker at RE/MAX. According to the Final Agency Acknowledgement in the
Sales Agreement, Defendants Erin Renwick and Rod Renwick were the exclusive agents of
Mrs. Gantt in the relevant real estate transaction. On information and belief, Erin Renwick
was under the direct supervision of the principal broker Rod Renwick. All conduct of Erin
Renwick can be imputed to Rod Renwick since he participated in the transaction, was aware
of Erin Renwick’s actions, and stood to benefit from the transaction.
104.
Erin Renwick and Rod Renwick had a duty to represent Mrs. Gantt with the
reasonable care, skill and diligence that would ordinarily be used by real estate licensees, and
specifically brokers, in the community in similar circumstances. Erin Renwick and Rod
Renwick also had a duty to exercise reasonable care and diligence.
105.
Erin Renwick and Rod Renwick breached their duties to Mrs. Gantt when they
fraudulently induced her to sign a contract for the sale of her home for below market value.
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Page 30 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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106.
Erin and Rod Renwick breached their duties to Mrs. Gantt when they failed to inform
Mrs. Gantt of her ability to reject a request for repairs and thereby rescinding any prior
contractual obligation to sell her home.
107.
Erin Renwick and Rod Renwick breached their duties when they failed to disclose a
conflict of interest in writing to Mrs. Gantt as required by ORS 696.815 when Mrs. Gantt’s
no longer wished to move forward with the contract she had been fraudulently induced to
sign.
108.
As a result of and Erin and Rod Renwick’s breach of their fiduciary duties to Mrs.
Gantt, Mrs. Gantt has been damaged in the amount of $50,000, the estimated amount to
which her home would be sold for less than fair market value.
SIXTH CLAIM FOR RELIEF
DECLARATORY RELIEF
(Against All Defendants)
109.
The listing contract between Mrs. Gantt and RE/MAX and the alleged sale contract
between Mrs. Gantt and Mr. Wirkus each contained arbitration provisions. Each provides,
among other things, that all disputes relating directly or indirectly to the alleged transaction
between the parties including those for rescission be submitted to arbitration, and names
Arbitration Services of Portland (“ASP”) as the default provider. Each also states that the
prevailing party in any suit, action, or arbitration shall be entitled to recovery of all costs and
Page 31 OF 36– FIRST AMENDED COMPLAINT
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attorney fees. In addition, the alleged sale contract requires that each party submit to
arbitration to resolve any disputes even if the agreement had been terminated prior to closing.
110.
There is a present, actual, and justiciable controversy between the parties as to the
validity of the arbitration agreements. Based on the two counts alleged herein, Mrs. Gantt is
entitled to a declaration as follows:
a. The arbitration agreements in both contracts are unconscionable under the
totality of the circumstances and were fraudulently induced under Oregon law;
b. Neither the arbitration agreements are valid or enforceable as to Mrs. Gantt;
and
c. This Court has jurisdiction over Mrs. Gantt’s claims and Mrs. Gantt is entitled
to pursue them in this Court.
Count 1: Unconscionability as applied to the Arbitration Agreement
111.
Mrs. Gantt realleges and incorporates paragraphs 1-110 above.
112.
The agreement to arbitrate (“arbitration agreement”) in both contracts are all
substantively and procedurally unconscionable under the totality of the circumstances.
113.
The arbitration agreements are each procedurally unconscionable in that:
a. They are standardized contracts of adhesion, presented to Mrs. Gantt without
any ability to negotiate them;
b. They were presented to Mrs. Gantt, who is elderly and a vulnerable person,
Page 32 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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without explanation and as one of many sections of a large package of complex
documents;
c. They were issued in very small print that is also very condensed form without
any attempt to make the agreement to arbitrate conspicuous;
d. They were given to Mrs. Gantt despite knowledge of her vision impairments;
e. They were concealed and obscured by Defendants misrepresentations as to the
nature of the documents being signed;
f. They were given to Mrs. Gantt without any explanation of the consequences
of agreeing to arbitrate;
g. They were given to Mrs. Gantt by an individual who had a fiduciary duty to
protect her interests, yet that individual steered her away from the provisions
without explanation and instead directed where to sign and initial; and
h. Mrs. Gantt was not given a copy of the documents which she signed.
114.
The arbitration agreements are each substantively unconscionable in that:
a. They would expose Mrs. Gantt to attorney fees which she would not be
exposed to if she was able to proceed in court under her elder abuse and unlawful
trade practices claims;
b. They state that arbitration is a way to resolve disputes without a court or jury,
but contain no explanation of the right to a court or jury trial or the consequences
of waiving that right;
c. RE/MAX is a member of the Oregon Association of Realtors, which has
endorsed ASP as a preferred provider, and which may give RE/MAX and its
Page 33 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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agents extensive knowledge of ASP and its arbitrators which would work to their
advantage in any arbitration;
d. They allow the parties to select an alternative to ASP only if the parties can
satisfy onerous limitations;
e. They cover all types of claims, including claims for elder abuse; rescission for
fraud or undue influence; unlawful trade practices; negligent misrepresentation;
and breach of fiduciary duty; all of which might be brought by vulnerable persons
such as Mrs. Gantt; and
f. The sale contract requires each party to submit to arbitration resolution of all
disputes even if the agreement had been terminated prior to closing.
Each of the factors alleged above, as applied specifically to the arbitration clauses,
render those provisions substantively unconscionable. Each of the arbitration clauses are
also independently unconscionable due to the extra delay and expense imposed on elderly
persons and the lack of explanation of what it means to present issues to an arbitrator as
opposed to a neutral judge or jury.
115.
Mrs. Gantt is entitled to an order that declares both of the arbitration agreements
clauses unenforceable as they are each procedurally and substantively unconscionable under
the totality of the circumstances.
Count 2: Fraudulent Inducement as Applied to the Arbitration Agreements
116.
Mrs. Gantt realleges and incorporates paragraphs 1-115 above.
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Page 34 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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117.
Defendants knowingly made material and false representations to Mrs. Gantt
concerning the agreement to arbitrate with the intent that Mrs. Gantt rely on those
representations.
118.
Specifically, Defendants made the following misrepresentations:
a. They concealed the arbitration agreements from her;
b. They intentionally withheld information regarding the nature, purposes, and
consequences of those agreements;
c. They were given to Mrs. Gantt without any explanation of the consequences
of agreeing to arbitrate; and
d. They withheld information that ASP is the “preferred” provider of their
professional association and that they direct all disputes to ASP.
119.
Mrs. Gantt reasonably relied on Defendants representations that the documents she
was signing were what Defendants said that they were, and that Defendants were acting in
good faith. Defendants did not disclose any effect the arbitration agreements would have on
Mrs. Gantt’s right to a court or jury trial related to any disputes arising from the sale. The
Defendant’s fraudulent conduct, as applied to these provisions, renders them unenforceable.
120.
Mrs. Gantt suffered damages in the form of losing her ability to seek relief in a court
or jury trial.
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Page 35 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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121.
Mrs. Gantt is entitled to an order that declares the arbitration agreements are
unenforceable because they were fraudulently induced.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows:
A. On the First Claim for Relief, an order rescinding the purported sale of Mrs.
Gantt’s home, and damages in the amount of $450,000 against all Defendants;
B. On the Second Claim for Relief, an order that the contract be rescinded, and
awarding restitution against all Defendants;
C. On the Third Claim for Relief, damages in the amount of $150,000 for each
count against Defendants RE/MAX, Erin Renwick and Rod Renwick;
D. On the Fourth Claim for Relief, damages in the amount of $50,000 against
Defendants RE/MAX, Erin Renwick and Rod Renwick;
E. On the Fifth Claim for Relief, damages in the amount of $50,000 against
Defendants Erin Renwick and Rod Renwick;
F. On the Sixth Claim for Relief, an order against all Defendants declaring that
each of the arbitration clauses are unenforceable on grounds that they are
unconscionable and were fraudulently induced;
G. An award for Plaintiff’s attorney fees and costs against all Defendants under
ORS 124.100 and 646.638(3);
H. Plaintiff will seek to amend their complaint to add a claim of punitive
damages pursuant to ORS 31.725;
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Page 36 OF 36– FIRST AMENDED COMPLAINT
LEGAL AID SERVICES OF OREGON
520 SW Sixth Ave., Suite 700, Portland, Oregon 97204
Telephone: (503) 224-4086 Fax: (503) 295-9496 Email: jon.strauhull@lasoregon.org
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I. For such other relief as deems just and proper; and
J. Plaintiff demands trial by jury.
Respectfully submitted this 2nd day of February, 2016,
Stephen S. Walters, OSB # 801200
OREGON LAW CENTER
522 SW 5th Ave., Ste. 812
Portland, OR 97204
P: 503-473-8322/F: 503-295-0676
swalters@oregonlawcenter.org
Jonathan P. Strauhull, OSB #106094
Andrea N. Ogston, OSB # 053360
LEGAL AID SERVICES OF OREGON
520 SW 6th
Ave. Suite #700
Portland OR 97204
P: 503-224-4086/F: 503-295-9496
jon.strauhull@lasoregon.org
andrea.ogston@lasoregon.org
Attorneys for Plaintiff
Signed by: /s/ Jonathan P. Strauhull
Trial Attorneys: Stephen S. Walters
Jonathan P. Strauhull
Andrea N. Ogston