16cv02127 elder abuse, common law rescission, unlawful...

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: [email protected]

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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





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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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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.





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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





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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.





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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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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





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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





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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





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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.





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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





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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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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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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.





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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.”

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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.





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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





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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


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.





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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.


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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.


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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.


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.


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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





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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.


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.





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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.


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.





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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.



damages an amount not to exceed $150,000, including damages for emotional distress,


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.


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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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.



damages an amount not to exceed $150,000, including damages for emotional distress,


fees.

FOURTH CLAIM FOR RELIEF

NEGLIGENT MISREPRESENTATION

(Against Defendants RE/MAX, Erin Renwick and Rod Renwick)

94.


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







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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;





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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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FIFTH CLAIM FOR RELIEF

BREACH OF FIDUCIARY DUTIES

(Against Defendants Erin Renwick and Rod Renwick)

102.


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



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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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


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





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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.


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,





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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





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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.


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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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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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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

[email protected]

Jonathan P. Strauhull, OSB #106094

Andrea N. Ogston, OSB # 053360


520 SW 6th

Ave. Suite #700

Portland OR 97204

P: 503-224-4086/F: 503-295-9496

[email protected]

[email protected]

Attorneys for Plaintiff

Signed by: /s/ Jonathan P. Strauhull

Trial Attorneys: Stephen S. Walters

Jonathan P. Strauhull

Andrea N. Ogston

mailto:[email protected]



16cv02127 elder abuse, common law rescission, unlawful...

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