Archive - Real Estate Malpractice

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August 21, 2017

Summary Judgment in Real Estate Case

Jeffrey P. Downer and James T. Graves won summary judgment in Shahbazian Trust v. Ocean Shores et al. in United States District Court, Western District of Washington at Tacoma. Plaintiff sued the seller of property and its real estate broker and brokerage, Jeff and James’s clients, for fraud, negligent misrepresentation, and breach of fiduciary duty.  Jeff and James argued that plaintiff could not prove justifiable reliance, a necessary element of its fraud and negligent-misrepresentation claims, and that claims of breach of fiduciary duty of a real estate broker have been abrogated by statute in Washington. Judge Benjamin H. Settle agreed with Jeff and James, granted summary judgment, and dismissed the action.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

January 22, 2015

Sponsored Appraisal Institute’s Real Estate Conference

Lee Smart was a sponsor of the fall Real Estate Conference of the Seattle Chapter of the Appraisal Institute that was held on October 2, 2014.  Lee Smart attorneys Joel Wright, Jeffrey Downer, Michelle Corsi, Rosemary Moore and Donna Young, among others, represent Washington appraisers in litigation and in disciplinary proceedings as part of Lee Smart’s real estate practice.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

November 19, 2013

Claims Dismissed Against Attorney/Trustee

Marc Rosenberg won summary judgment dismissal of claims brought by a plaintiff against an attorney/trustee for his role in a nonjudicial foreclosure proceeding in Freund v. Law Firm, Snohomish County Superior Court, cause no. 13-2-01911-4. Plaintiff alleged due process violations of the Washington Constitution, the Deeds of Trust Act, the Consumer Protection Act, and under theories of negligence, breach of contract, and to quiet title. Marc convinced the court that, as a matter of law, the Deeds of Trust Act comports with constitutional due process where the homeowner received notice and an opportunity to be heard, and that a breach of contract will not lie against a successor trustee that is not a party to the contract. Marc also convinced the court that the attorney had acted in good faith, and not in a way that was unfair or deceptive, leading to dismissal of the remaining claims.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Dispute Litigated Between Two Brothers Ends Up In Dismissal

Kenneth E. Hepworth won summary judgment of dismissal in Grudzinski v. Grudzinski, a dispute between two brothers over the clean up of several parcels of land totaling 57.04 acres, which were previously owned by their mother.  After their mother’s estate closed, one of the brothers sued the other, Ken’s client, seeking $365,000 in damages related to construction debris on the property, as well as equitable relief related to the real property he received from their mother’s estate.  The lawsuit included a Model Toxics Control Act claim, as well as claims for negligence and equitable relief.  Ken successfully argued for dismissal of four of the five claims, except the cause of action for an implied easement, which was later dismissed by stipulation.  Ken defended the dismissal on appeal and it was affirmed by Division Three of the Court of Appeals.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Department of Licensing Closes Case Alleging Professional Misconduct

Jeffrey P. Downer and Matthew J. McCarthy convinced the Washington Department of Licensing to dismiss Dept. of Licensing v. Gotch Masterson Realty.  The claimant purchased a foreclosed house being sold by a bank that was disclosed to be a sale in “as is” condition.  Then, the claimant alleged professional misconduct based on defects.  Jeff and Matt independently investigated events in this grievance and the claimant’s prior complaints against real estate professionals.  They submitted an analysis of the laws and regulations governing their clients’ conduct to the Department of Licensing.  The Department closed its investigation, concluding that no action should be taken against the brokers.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

October 29, 2013

Plaintiffs Failed to Mitigate Damages

Joel E. Wright and Rosemary J. Moore demonstrated the plaintiffs had failed to mitigate damages in Trudell v. XYZ in the Superior Court for Chelan County.  The plaintiffs alleged defendants negligently prepared of a Deed of Trust.  Joel and Rosemary argued that the plaintiffs had failed to mitigate their damages by moving for a writ of attachment when their property was sold, although they knew of the pending sale and knew the Trust and one of the trustees were based out of state.  The court agreed and dismissed the bulk of the plaintiffs’ claimed damages.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

April 5, 2013

Fraudulent Concealment Claims

Jeffrey P. Downer and A. Janay Ferguson obtained summary judgment dismissal of fraudulent concealment claims against their client arising from a real estate transaction in Centralbanc v. Edwards.  Jeff and Janay prevailed on a motion to exclude all fact and expert witnesses who would have supported the plaintiff’s case because it failed to properly disclose any witnesses under the order setting case schedule.  They then won summary judgment of dismissal based on the plaintiff’s inability to present evidence to support its case at trial.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Fraud, Fraudulent Concealment Case

Jeffrey P. Downer and Christine A. Slattery won a defense jury verdict in Kloster v. Roberts. Plaintiffs bought acreage in Klickitat County whose access easement was 30 feet wide rather than the legally required 60 feet. In 2005, plaintiffs sued the seller and her real estate broker, for fraud, fraudulent concealment, and negligent misrepresentation. Plaintiffs claimed several hundred thousand dollars in damages, alleging market value, emotional distress, and other general damages, and a right to attorney fees under the purchase and sale agreement. In 2009, Lee Smart replaced two other law firms on behalf of defendants and brought a series of summary judgment motions that limited plaintiffs’ damages to less than $40,000. Plaintiffs rejected defendants’ several settlement offers. At the end of a week-long trial, the jury unanimously determined that defendants were not liable and that plaintiffs had suffered no damages. After trial, the court awarded Jeff and Christine’s clients attorney fees of nearly $270,000, which was every dime that the defense had expended in the six and a half years the action had been pending.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Negligent Misrepresentation Claim of House

Michelle A. Corsi won a defense award during the arbitration of Moltz v. Re/Max. Plaintiffs purchased a home and thereafter filed suit against multiple defendants, alleging Michelle’s real estate broker client had committed negligent misrepresentation by failing to disclose the house contained dry rot, even though the plaintiffs procured their own inspection. Plaintiffs admitted that they moved out of the house solely due to a failed septic system and made no mortgage payments, which in turn resulted in foreclosure.  Michelle’s client was not aware of the alleged dry rot and the plaintiffs did not produce specific evidence of their damages. The arbitrator issued a defense verdict.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Failure to Pay Commission

Michelle Corsi and Ken Hepworth won summary judgment in favor of their client Keller Williams Western Realty Bellingham and a judgment for $84,000. Keller Williams sued a property seller for breach of contract. The seller failed to pay the commission owing to Keller Williams after the seller sold the property without informing Keller Williams. The court held that Keller Williams’s listing agreement was binding and obligated the seller to pay the commission and ordered payment of the commission, interest, and attorney fees. The court rejected the seller’s attempt to contradict the terms of the contract by offering evidence of an oral agreement that contradicted the written agreement.

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