[CASE CAPTION OMITTED]
PLAINTIFF’S SECOND AMENDED PETITION FOR DAMAGES
COMES NOW Plaintiff Jodi Grillo, by and through counsel, and for her cause of action against Defendants Treadstone Properties LLC, Stivan Group LLC, Stivan Management LLC, Stivan Realty LLC, Chamberlain Holdings LLC, Brandt Clayton Stiles, Timothy VanMatre, Samuel Webb Smith, Joe McCall, and Michelle Kile (the “Defendants”), states to the Court as follows:
The Parties
1. [OMITTED].
2. Defendant Treadstone Properties LLC (“Treadstone”) is a Missouri limited liability company duly licensed to conduct business in the State of Missouri with its principal place of business located at 226 S. Meramec, Suite 100, Clayton, St. Louis County, MO 63105.
3. Stivan Group LLC (“Stivan”) is a Missouri limited liability company duly licensed to conduct business in the State of Missouri with its principal place of business located at 11911 Westline Industrial Dr., St. Louis, St. Louis County, MO 63146.
4. Stivan Management LLC (“Stivan Management”) is a Missouri limited liability company duly licensed to conduct business in the State of Missouri with its principal place of business located at 11911 Westline Industrial Dr., St. Louis, St. Louis County, MO 63146.
5. Stivan Realty LLC (“Stivan Realty”) is a Missouri limited liability company duly licensed to conduct business in the State of Missouri with its principal place of business located at 11911 Westline Industrial Dr., St. Louis, St. Louis County, MO 63146.
6. Chamberlain Holdings LLC (“Chamberlain”) is a dissolved Missouri limited liability company, with previously had offices at 2977 Hwy K #228, O’Fallon, MO 63368.
7. Brandt Clayton Stiles (“Stiles”) is an individual and upon information and belief is a resident of the State of Missouri.
8. Defendant Timothy VanMatre (“VanMatre”) is an individual and upon information and belief is a resident of the State of Missouri.
9. Samuel Webb Smith, III (“Smith”) is an individual and upon information and belief is a resident of the State of Missouri.
10. Joe McCall (“McCall”) is an individual and upon information and belief is a resident of the State of Missouri.
11. Michelle A. Kile (“Kile”) is an individual and upon information and belief is a resident of the State of Missouri.
Jurisdiction and Venue Allegations
[OMITTED]
Allegations Common to All Counts
15. At all times relevant hereto, Defendants have been engaged in the business of acquiring, purchasing, owning, managing, selling, and leasing single and multi-family real estate, including but not limited to “rent-to-own” transactions.
16. Upon information and belief, Defendant Treadstone at all times relevant hereto has been owned and operated by Defendant Smith.
17. Upon information and belief, Defendant Chamberlain Holdings at all times relevant hereto has been owned and operated by Defendant McCall.
18. Upon information and belief, Defendants Stivan, Stivan Management, and Stivan Realty at all times relevant hereto have been owned and operated by Defendants Stiles and VanMatre.
19. Upon information and belief, Defendant Kile has at all times relevant hereto been a licensed Missouri realtor and has been employed by Defendants Stivan, Stivan Management, and Stivan Realty.
20. Defendants Stivan and Stivan Management at times enter into leases with individuals for rental property, and direct them to pay their rent to Defendant Treadstone, and Defendant Treadstone at times enters into leases with individuals for rental property, and directs them to pay their rent to Defendants Stivan.
21. All conduct of Defendant Stiles as alleged herein was as owner, manager, employee, and agent for Defendants Stivan, Stivan Management and Stivan Realty, and as agent for Defendant Treadstone, and within the course and scope of his employment and agency for Defendants Stivan, Stivan Management and Stivan Realty and within the course and scope of his agency for Defendant Treadstone.
22. All conduct of Defendant VanMatre as alleged herein was as owner, manager, employee, and agent for Defendants Stivan, Stivan Management and Stivan Realty, and as agent for Defendant Treadstone, and within the course and scope of his employment and agency for Defendants Stivan, Stivan Management and Stivan Realty and within the course and scope of his agency for Defendant Treadstone.
23. All conduct of Defendant Kile as alleged herein was as manager, employee, and agent for Defendants Stivan, Stivan Management and Stivan Realty, and as agent for Defendant Treadstone, and within the course and scope of her employment and agency for Defendants Stivan, Stivan Management and Stivan Realty and within the course and scope of her agency for Defendant Treadstone.
24. All conduct of Defendant Smith as alleged herein was as owner, manager, employee, and agent for Defendant Treadstone, and as agent for Defendants Stiles, VanMatre, McCall, Chamberlain, Stivan, Stivan Management and Stivan Realty, and within the course and scope of his employment and agency for Defendant Treadstone and within the course and scope of his agency for Defendants Stiles, VanMatre, McCall, Chamberlain, Stivan, Stivan Management and Stivan Realty.
25. All conduct of Defendant McCall as alleged herein was as owner, manager, employee, and agent for Defendant Chamberlain, and as agent for Defendants Treadstone, Stivan, Stivan Management and Stivan Realty, and within the course and scope of his employment and agency for Defendant Chamberlain and within the course and scope of his agency for Defendants Treadstone, Stivan, Stivan Management and Stivan Realty.
26. Defendant Stiles directed, participated in, controlled, received benefits from and ratified all conduct alleged herein.
27. Defendant VanMatre directed, participated in, controlled, received benefits from and ratified all conduct alleged herein
28. Defendant Smith directed, participated in, controlled, received benefits from and ratified all conduct alleged herein.
29. Defendant Chamberlain directed, participated in, controlled, received benefits from and ratified all conduct alleged herein.
30. Defendant Kile participated in the conduct described herein by, but not limited to, executing documents necessary to transfer interests in real estate, and received benefits.
31. Whenever it is alleged herein that Defendant(s) or persons acting on behalf of defendant(s) did any act or thing, it is meant that said Defendant(s) performed, participated in, directed and/or ratified such act or thing, or that such act was performed by the officers, agents, employees, or representatives of Defendant(s) acting within the scope and course of employment and agency.
The Home and the Rent-to-Own Agreement
32. In December 2009, Plaintiff placed a phone call to Defendant Treadstone to inquire about a single-family residential property located at 264 Deane Ct., St. Louis, St. Louis County, MO 63127 (the “Home”), after observing an advertisement which contained the name and telephone number of Defendant Treadstone and stated that the Home was available under a “rent-to-own” arrangement.
33. Plaintiff viewed the Home and met with Defendants Smith and McCall to discuss the possibility of Plaintiff “renting-to-own” the Home.
34. At the meeting, Defendant Smith stated to Plaintiff:
a. that Defendant Treadstone owned the Home and was seeking to find a “serious buyer” who would rent the Home from Defendant Treadstone for twelve (12) months (the “Rental Period”) and subsequently purchase the Home;
b. that Defendant Treadstone had the ability to enter into this agreement and would be able to transfer the Home to plaintiff at the conclusion of the Rental Period;
c. that Plaintiff would receive a credit totaling fifty percent (50%) of the total amount of rent paid during the Rental Period, which would be deducted from closing costs and the purchase price when Plaintiff purchased the Home (the “Rent Credit”);
d. that Plaintiff was required to make an initial lump-sum payment of $4,500.00 upon agreeing to enter into a rent-to-own agreement for the Home, which would, in addition to the Rent Credit, be credited to Plaintiff and deducted from the closing costs and the purchase price when Plaintiff purchased the Home;
e. that the $4,500.00 payment was a “deposit” to “show that [Plaintiff was] serious” about purchasing the Home after renting for one year; and
f. that Defendant Smith was “very serious” about finding someone who strongly desired to purchase the Home, as opposed to merely finding a renter (which he reiterated several times and strongly emphasized to Plaintiff).
35. At the meeting, Defendant McCall stated to Plaintiff that he and his company, Defendant Chamberlain, “manage[d] properties for [Defendants Smith and Treadstone].”
36. At the meeting, Defendant Smith and Defendant McCall both repeatedly used the phrase “rent-to-own” when describing the arrangement they were offering Plaintiff.
37. After the meeting, Plaintiff was of the understanding that if she were to enter into the agreement offered by Defendants Smith and McCall, she would rent the Home for twelve months and then purchase and become the owner of the Home thereafter.
38. Plaintiff strongly wanted to purchase a house in the near future, rather than simply rent, and made this fact abundantly clear to Defendants Smith and McCall.
39. Upon believing she would be able to purchase the Home after the Rental Period, and with every intention to do so, Plaintiff agreed to “rent-to-own” the Home.
40. On or about January 19, 2010, Plaintiff met with Defendant Smith and signed the following documents to consummate the contemplated transaction:
a. A rental agreement for the Home between Plaintiff and Defendant Treadstone, entitled “STANDARD REAL ESTATE RENTAL AGREEMENT” (the “Rental Agreement”), which is attached hereto as Exhibit A.
b. An agreement entitled “OPTION TO PURCHASE AGREEMENT” (the “Option to Purchase”), which is attached hereto as Exhibit B.
c. A document entitled “SELLER’S DISCLOSURE STATEMENT” (the “Disclosure Statement”), which is attached hereto as Exhibit C.
41. A document entitled “PRE-1978 HOUSING RENTAL AND LEASES DISCLOSURE OF INFORMATION,” which is attached hereto as Exhibit D.
42. The Option to Purchase gave Plaintiff, in exchange for $4,000.00 (the “Option Consideration Fee”), the Right to purchase the Home at any time between January 20, 2010 and January 20, 2011, but Defendant Smith asked Plaintiff for $4,500.00.
43. Despite the foregoing, Defendants Smith and McCall informed Plaintiff that she would not be permitted to close on the Home until the conclusion of the Rental Period.
44. The Option to Purchase required Defendant Treadstone to refund and return to Plaintiff the Option Consideration Fee “if [Defendant Treadstone] fails or is unable to meet any of the obligations set forth in the [Option to Purchase] agreement.”
45. On the Disclosure Statement (Exhibit C) the “no” box is checked in response to whether the consent of anyone other than the signers is required to convey title to the property.
46. On the Disclosure Statement (Exhibit C), the “no” box is checked in response to the question of whether seller is aware of any flood or drainage problems on the property or that may affect the property.
47. On the day Plaintiff signed exhibits A, B, C and D, Plaintiff wrote a personal check to Defendant Treadstone for $4,500.00, which is attached hereto as Exhibit E.
48. At this time, Defendant Smith again promised that the $4,500.00 “deposit” would be deducted from the purchase price and closing costs of the Home.
49. Plaintiff moved into the Home on or about January 26, 2010.
50. After moving into the Home, Plaintiff learned of encumbrances on the Home, but Defendants at every step assured her they would resolve these issues so that she could purchase and own the Home at the conclusion of the Rental Period.
Tree Removal and Other Improvements Plaintiff Made to the Home
51. On or about December 1, 2010, the City of Sunset Hills informed Plaintiff she was obligated to cut down several trees on the property on which the Home was located.
52. Defendant Smith promised Plaintiff that he would “reimburse [her] for half of the cost” of the tree removal if she paid for it.
53. Plaintiff paid DeClue & Sons Tree Services LLC $1,290.00 to cut the trees down by means of a personal check, which is attached hereto as Exhibit F.
54. After the trees at issue were cut down, Plaintiff contacted Defendant Smith to obtain reimbursement for half of the cost ($645.00), as Defendant Smith had promised, but Defendant Smith never reimbursed Plaintiff for any of the cost of having the trees cut down, and ignored Plaintiffs numerous phone calls and requests to pay this amount.
Sewage and Drainage Problems
55. Plaintiff realized shortly after moving in that the basement of the Home had drainage problems, and would flood every time she attempted to utilize the washing machine.
56. A plumber had to be dispatched to the Home on eleven occasions.
57. Plaintiff paid for the cost of plumbing services on three such occasions.
58. Plaintiff learned that the “lateral sewer line” to the Home was damaged and needed to be replaced, and Defendants promised they would pay to have it fixed so that she could purchase the Home.
59. On or about December 31, 2010, Defendant Smith came to the Home and told Plaintiff he would hire a plumber to run a camera down the drain to determine why the flooding was occurring, and stated again that he would reimburse Plaintiff for the tree removal.
60. Plaintiff never saw, nor heard from Defendant Smith again, and he failed to respond to her phone calls and requests to have the plumbing services performed.
61. The problem with the drain was never determined, and the lateral sewer line was never fixed, both to Plaintiff’s detriment.
Plaintiff’s Occupancy of the Home
62. Plaintiff moved into the Home on January 26, 2010, and resided therein until July 20, 2011.
63. Plaintiff paid rent in a timely manner for every month she resided in the Home, and otherwise fully performed her obligations under the Rental Agreement and all other agreements entered into with Defendants.
64. For approximately the first six months that Plaintiff resided in the Home, she paid her rent to Defendant Treadstone.
65. After approximately six months of residing in the Home, Defendant Kile called Plaintiff and instructed her to remit all future rent payments due to Defendant Stivan.
66. On or about November 5th, 2010, Plaintiff informed Defendant Smith that the Rental Period was coming to an end and inquired about purchasing the Home.
67. Defendant Smith told Plaintiff she could not yet purchase the Home, and told Plaintiff they would extend the Rental Period on the same conditions, including that half of her rent would continue to accrue as Rent Credit that (along with the $4,500.00 deposit) would be deducted from the purchase price and closing costs.
68. At this time, Defendant Smith additionally stated that he would ensure that the problem with the sewer, and other issues, would be remedied “so that [Plaintiff could] close” on the Home, and assured Plaintiff she would “soon” be able to purchase the Home.
69. Defendants continued to rent the Home to Plaintiff on the same terms as in the Rental Period, continued to accept all rent, and continued to tell Plaintiff they would soon allow her to purchase the Home.
70. On or about May 22, 2011, Plaintiff received a letter from Frontenac Bank (the “Bank”) indicating that the Bank was exercising its legal right to collect subsequent rent payments for the Home, pursuant to the terms of a deed of trust on the Property held by the Bank.
71. Defendants again promised Plaintiff they would resolve the “problem” with the Bank so that she could soon purchase the Home.
72. Plaintiff made two rent payments to the Bank, those due on June 1, 2011, and July 1, 2011.
73. Plaintiff made numerous requests to Defendants to allow her to purchase the Home, but Defendants ultimately refused and were unable to convey the Home.
Prior Balances on Sewer Bill
74. Plaintiff paid, in a timely manner, all sewer and other utility bills that came due for the Home.
75. On or about February 3, 2010, having lived in the Home for less than one month, Plaintiff received her first sewer bill, which reflected a “prior balance.”
76. The prior balance was not listed in the Plaintiff’s name, but rather was in the name of “Eighteen Investments, Inc.” a Missouri corporation from whom Defendant Smith had previously purchased the Home.
77. The date of the prior balance on the sewer bill was prior to the beginning of the Rental Period, meaning the balances existed before Plaintiff moved into the Home.
78. On or about February 6, 2010, Plaintiff informed Defendant Smith about the prior balance and that she believed she was not responsible for paying it.
79. On or about February 7, 2010, Defendant Kile called Plaintiff, stated that Plaintiff was legally obligated to pay the entire amount of the prior balance, and demanded that she pay it immediately.
80. In response, Plaintiff explained and stressed to Defendant Kile:
a. that Plaintiff had paid for all sewer usage occurring during the Rental Period, for which she was responsible, and offered to provide Defendant Kile with a copy of her records indicating such;
b. that it was clearly evident from the dates on the bill that the prior balance had accrued prior to the beginning of the Rental Period;
c. that the prior balances were not in Plaintiff’s name, but rather were in the name of Eighteen Investments, Inc.; and
d. that Plaintiff therefore believed she was not obligated to pay the prior balance.
81. Defendant Kile knew or should have known that Plaintiff was not legally obligated to pay the prior balance, but nonetheless continued to call Plaintiff and demand that Plaintiff pay the prior balance.
82. Defendant Kile called Plaintiff as many as four additional times to insist that Plaintiff was legally responsible for, and demand that Plaintiff pay, the prior balance, which caused Plaintiff unnecessary stress, fear, and anxiety.
Defendants’ Final Refusal
83. During the time that Plaintiff resided in the Home, Defendant Stiles made numerous promises to Plaintiff that she would be able to purchase the Home.
84. On or about June 9, 2011, Defendant Stiles visited the Home and spoke with Plaintiff and her mother.
85. Defendant Stiles stated that there was a “problem” and that, as a result, Defendants could not convey the Home to Plaintiff.
86. Defendant Stiles stated to Plaintiff “I have other houses we can sell you that I think you would like” and asked her to look at several other houses, which he told her he owned.
87. Plaintiff found the properties Defendant Stiles showed her repulsive because they were in dangerous neighborhoods, were in extremely poor, unlivable condition, and had visible problems broken windows, ripped-out floors, mold, mildew, and general deterioration.
88. Plaintiff stated to Defendant Stiles, “Brandt, this is disgusting, this is beyond filth,” and asked Defendant Stiles why she could not purchase the Home.
89. Defendant Stiles responded, “You can’t do it.”
90. Plaintiff responded, “I have a contract to buy [the Home].”
91. Defendant Stiles became visibly angry and responded that she could only continue renting the Home but could not purchase it.
92. Plaintiff requested the return of the $4,500.00 deposit and return of the money she paid to have the trees cut down.
93. Defendant Stiles responded, in an increasingly angry and hostile tone, “You’ll buy one of my properties or you aren’t getting anything.”
94. Plaintiff responded that it wasn’t fair for her to forfeit her deposit and the money she spent improving the property.
95. Defendant Stiles responded, “That’s not my problem.”
96. Plaintiff met with several banks to attempt to determine why she could not close on the Home, and was told by each bank that the title documents to the Home were “a mess,” that the Home was encumbered, and that closing on the Home would likely be impossible.
97. Plaintiff qualified for mortgage financing at all times relevant hereto, stated to Defendants her desire to purchase the Home, and performed all her obligations under all agreements entered into with Defendants.
Count I: Violations of the Missouri Merchandising Practices Act
COMES NOW Plaintiff, by and through counsel, and states as follows for Count I of this Petition against all Defendants:
98. Plaintiff incorporates herein by reference each and every prior allegation as though fully restated and alleged.
99. The actions and omissions of Defendants as alleged herein constituted violations of the Missouri Merchandising Practices Act, § 407.020 RSMo (“the Act”).
100. The Act provides in pertinent part that:
“(t)he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce ... is declared to be an unlawful practice.” §407.020 RSMo. (2000).
101. Under the Act, the term “merchandise” expressly includes sales and leases of real estate. §407.010 RSMo. (2000).
102. The purpose of the Act is to preserve fundamental honesty, fair play, and right dealings in public transactions. Amburgy v. Express Scripts, Inc., 671 F. Supp. 2d 1046 (E.D. Mo. 2009).
103. Further, the Act provides that any person who purchases merchandise primarily for personal, family, or household purposes and thereby suffers an ascertainable loss of money as a result of the use of a prohibited practice, is authorized to bring a civil suit for actual damages, punitive damages, attorneys’ fees and/or such equitable relief as the court may order. §407.020 RSMo. (2000).
104. Plaintiff used the Home primarily for personal, family, or household purposes within the meaning of the Act.
105. 15 CSR 60-8.020 defines “unfair practice” as follows:
(1) An unfair practice is any practice which –
(A) Either –
1. Offends any public policy as it has been established by the Constitution, statutes or common law of this state, or by the Federal Trade Commission, or its interpretive decisions; or
2. Is unethical, oppressive or unscrupulous; and
(B) Presents a risk of, or causes, substantial injury to consumers.
(2) Proof of deception, fraud or misrepresentation is not required to prove unfair practices as used in section 407.020.1 RSMo.
106. 15 CSR 60-8.040 “duty of good faith” provides:
(1) It is an unfair practice for any person in connection with the advertisement or sale of merchandise to violate the duty of good faith in solicitation, negotiation and performance, or in any manner fail to act in good faith (see section 400.2-103(1)(b), Restatement, Second, Contracts section 205).
107. 15 CSR 60-8.080 provides:
(1) It is an unfair practice for any person in connection with the sale of merchandise to engage in any unconscionable act or practice, or to use any unconscionable contract or contract term.
(2) It is unconscionable to take advantage of an unequal bargaining position and obtain a contract or term which results in a gross disparity of values exchanged....
108. 15 CSR 60.9-070 “misrepresentation” provides:
(1) A misrepresentation is an assertion that is not in accord with the facts.
(2) Reliance, knowledge that the assertion is false or misleading, intent to defraud, intent that the consumer rely upon the assertion, or any other capable mental state such as recklessness or negligence, are not elements of misrepresentation as used in section 407.010.
109. 15 CSR 60-9.110 “concealment, suppression or omission of any material fact in general” provides:
(1) Concealment of a material fact is any method, act, use or practice which operates to hide or keep material facts from consumers.
(2) Suppression of a material fact is any method, act, use or practice which is likely to curtail or reduce the ability of consumers to take notice of material facts which are stated.
(3) Omission of a material fact is any failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.
(4) Reliance and intent that others rely upon such concealment, suppression or omission are not elements of concealment, suppression or omission as used in section 407.020.1, RSMo.
110. A breach of contract is actionable under the Act when aggravating circumstances are present. Schuchmann v. Air Services Heating & Air Conditioning, Inc., 199 S.W.3d 228 (Mo. Ct. App. 2006).
111. Defendants engaged in methods, acts, uses and practices of deception, fraud, false pretenses, false promises, misrepresentation, unfair practices, and the concealment, suppression and omission of material facts, all in violation of § 407.020, RSMo, by (but not limited to):
a. Falsely assuring Plaintiff on countless occasions that she would be able to purchase the Home after the Rental Period, in order to induce Plaintiff to continue conferring benefits upon Defendants, when in fact Defendants knew or should have known that they would never be able to convey the Home to Plaintiff, or that there was a chance Defendants wouldn’t be able to convey the Home to Plaintiff.
b. Representing to Plaintiff in the Disclosure Statement that no consent of anyone other than Defendants was required to convey title to the Home, when in fact the Home was encumbered and Defendants were subsequently unable to convey title to the Home.
c. Inducing Plaintiff to pay to have trees removed, paint the Home, have landscaping done, pay for plumbing services, and make other improvements to the Home, by intentionally leading her to falsely believe she would be able to purchase and own the Home, when Defendants knew or should have known that they would never be able to convey the Home to Plaintiff, or that there was a chance they would not be able to convey the Home to Plaintiff.
d. Promising that if Plaintiff paid for the tree removal, Defendants would reimburse her for half of the cost, but subsequently refusing to do so and ignoring Plaintiff’s subsequent phone calls and requests for repayment.
e. Requiring Plaintiff to pay a $4,500.00 deposit which would be applied to the purchase price and closing costs of the Home, and not reimbursing Plaintiff for the deposit when Defendants were subsequently unable to convey the Home due to circumstances completely within Defendants’ control and completely outside the control of the Plaintiff.
f. Engaging in “bait-and-switch” tactics, by contracting with Plaintiff for the sale of a specific property Defendants knew or should have known was impossible to transfer to Plaintiff, and then attempting to pressure Plaintiff into purchasing an inferior property instead by using abusive, intimidating, and harsh language towards Plaintiff.
g. Inducing Plaintiff to enter into a “rent-to-own” agreement for the Home, knowing that Plaintiff was doing so because she desired to purchase and own the Home, by omitting, concealing, and suppressing the fact, or the possibility, that she would never be able to own the Home, which would have affected Plaintiff’s decision to enter into the transaction.
h. Using abusive and intimidating language towards Plaintiff in an attempt to intimidate her into paying utility bills for which Defendants knew or should have reasonably known Plaintiff was not legally responsible, in an attempt to financially benefit Defendants.
i. Representing to Plaintiff in the Disclosure Statement that the Home had no sewage or drainage problems, when Defendant knew or reasonably should have known that such problems existed, and subsequently inducing Plaintiff to pay Plumbing fees incurred as a result of such problems by leading her to falsely believe that she would be able to purchase the Home upon the conclusion of the Rental Period.
j. Causing Plaintiff to pay for substantially all utilities, repairs, and improvements to the Home as if she were the owner, all to the benefit of Defendants, by leading her to falsely believe that she would be able to purchase the Home, when Defendants knew or should have known that Plaintiff would never be able to purchase the Home.
k. Using a disparity in bargaining power between the parties to cause Plaintiff to enter into an unconscionable transaction whereby Plaintiff incurred expenses far above and beyond those that any renter would reasonable agree to pay.
l. Advertising the Home as being available for “rent-to-own,” and repeatedly using that phrase and stressing to Plaintiff that it was essential that they find a tenant who would buy, not just rent, the Home, when Defendants knew or should have known that it would be impossible or may not be possible for any buyer to actually come to own the Home.
m. Requiring a deposit as high as $4,500.00 for a transaction of this nature, where there is great uncertainty about whether any buyer will come to own a property. This is a practice that is unethical, oppressive and unscrupulous, which is likely to lead to substantial harm to consumers, and which did in this case result in substantial harm to Plaintiff.
n. Inducing Plaintiff to continue renting at the conclusion of the Rental Period, despite the fact that at that time Defendants could not convey the Home to Plaintiff, by telling her Defendants would resolve the issues preventing conveyance and soon be able to convey the Home to her, when Defendants knew or should have reasonably known that it would never be possible to convey the Home to Plaintiff.
o. Taking advantage of the grossly unequal bargaining position between Plaintiff and Defendants in order to obtain a contract which resulted in a gross disparity of values exchanged.
p. Making promises to make repairs and improvements to the Home but then failing to do so, ceasing to respond to Plaintiff’s phone calls and inquiries, and completely ignoring the Plaintiff thereafter.
q. Participating as a licensed realtor in an unethical, oppressive and unscrupulous transaction, by drafting real estate documents in furtherance of the transaction.
r. Failing to act in good faith at all times relevant hereto.
112. Plaintiff suffered damages proximately caused by the conduct of Defendants including, but not limited to, paying a $4,500 deposit that was never refunded, paying $1,290 for tree removal, paying for Plumbing services on several occasions, forfeiting the Rent Credit she had accumulated, having landscaping done, painting the Home, otherwise improving the Home, attorneys’ fees, moving expenses, mental pain, anguish, emotional distress, embarrassment, humiliation, and inconvenience.
113. The conduct of Defendants was willful, wanton, malicious, with intent to defraud, and was outrageous by reason of evil motive and/or conscious indifference to or reckless disregard for the rights of the Plaintiff, and without just cause or excuse, such that punitive damages should be assessed against Defendants to punish and deter them and others from like conduct.
114. All Defendants have engaged, and continue to engage, in a pattern and practice of similar behavior towards consumers that constitutes unfair and deceptive acts and practices in violation of the Act.
115. Pursuant to § 407.025 RSMo, Plaintiff is entitled to recover her actual damages, attorneys’ fees, and punitive damages from Defendants.
WHEREFORE, Plaintiff prays for judgment against Defendants for each and every violation of the Missouri Merchandising Practices Act, actual damages in an amount that is fair and reasonable but which is in excess of $25,000.00, incidental and consequential damages in an amount that is fair and reasonable, punitive damages, plus interest from the date she paid $4,500.00 as a deposit, from the date she paid $1,290.00 for tree removal, reasonable attorneys fees and for the costs of this action, and for such other relief as the Court deems just and proper.
Count II: Money Had and Received/Unjust Enrichment
COMES NOW Plaintiff, by and through counsel, and states as follows for Count II of this Petition against Defendants Stivan, Treadstone, Chamberlain, Stiles, VanMatre, Smith, and McCall:
116. Plaintiff incorporates herein by reference each and every prior allegation as though fully restated and alleged.
117. Plaintiff has conferred upon Defendants a benefit by paying Defendants a $4,500.00 deposit, paying $790 rent for eighteen months, paying $1,290.00 for tree removal, painting the Home, paying for landscaping to be done, paying for landscaping services, and otherwise improving the Home.
118. Defendants realized and appreciated the benefit they had thus received.
119. Defendants accepted and retained the benefit under circumstances in which retention without repayment would be inequitable.
WHEREFORE, Plaintiff prays for a judgment against the above-named Defendants in such amount as is fair and reasonable but which is in excess of $25,000.00, for an order forcing disgorgement of the benefits Plaintiff has conferred upon them, for an award of attorneys' fees, costs and expenses, and for such other and further relief as may seem to the court to be just.
Count III: Breach of Contract
COMES NOW Plaintiff, by and through counsel, and states as follows for Count III of this Petition against Defendants Stivan, Treadstone, and Chamberlain:
120. Plaintiff incorporates herein by reference each and every prior allegation as though fully restated and alleged.
121. Pursuant to the Option to Purchase (Exhibit B), it was mutually agreed that Defendant Treadstone would sell Plaintiff the Home at any time during the Rental Period (and Defendant Treadstone subsequently extended the Rental Period), for $127,000 minus the Rent Credit and $4,500.00 deposit, that Defendant should convey good title to the Home, clear of all encumbrances, and deliver a deed thereof, and that Plaintiff should thereupon pay to Defendant the sum remaining due and owing.
122. Plaintiff duly performed all the conditions of the Option to Purchase contract on her part, and informed Defendants of her intention, desire, and ability to purchase the Home.
123. During the Rental Period, Defendants breached the Option to Purchase contract by telling Plaintiff she could not close on the Home until after the conclusion of the Rental Period.
124. After extending the Rental Period, Defendants breached the Option to Purchase contract by telling Plaintiff she could only continue to rent, but would never be able to purchase, the Home.
125. Defendants could not and did not at any other time whatsoever give Plaintiff a deed to the premises pursuant to the agreement, but have refused and failed to do so, to Plaintiff's damage.
126. Further, Defendants breached the Option to Purchase contract by failing to refund Plaintiff’s $4,500 deposit after Defendants were unable to convey the Home to Plaintiff.
WHEREFORE, Plaintiff prays for a judgment against the above-named Defendants in an amount which is fair and reasonable but which is in excess of $25,000.00, for an award of attorneys' fees, costs and expenses, and for such other and further relief as may seem to the court to be just.
Count IV: Fraud
COMES NOW Plaintiff, by and through counsel, and states as follows for Count IV of this Petition against all Defendants:
127. Plaintiff incorporates herein by reference each and every prior allegation as though fully restated and alleged.
128. Defendants made representations of fact, including but not limited to:
a. assertions that the Home was unencumbered;
b. assertions that no one other than Defendant Treadstone was required to give permission to transfer the Home;
c. assertions that Plaintiff could purchase the Home during the Rental Period;
d. assertions that Plaintiff could purchase the Home after the Rental Period;
e. assertions that Plaintiff’s deposit would be returned if Defendants could not convey the Home; and
f. assertions that Defendants would reimburse Plaintiff for the cost of repairs to the property and make further repairs.
129. These representations were material to the transaction, were made with the intent they be acted and relied upon by Plaintiff, and were untrue and known by Defendants to be untrue.
130. Plaintiff reasonably relied upon Defendants’ representations, and had the right to rely on Defendants’ truthfulness;
131. The actions and omissions of Defendants as alleged herein therefore constituted fraudulent misrepresentation and concealment.
WHEREFORE, Plaintiff prays for a judgment against the above-named Defendants in an amount which is fair and reasonable, for an award of attorneys' fees, costs and expenses, and for such other and further relief as may seem to the court to be just.
Count V: Civil Conspiracy
COMES NOW Plaintiff, by and through counsel, and states as follows for Count V of this Petition against Defendants Stiles, Smith, VanMatre and McCall:
132. Plaintiff incorporates herein by reference each and every prior allegation as though fully restated and alleged.
133. Upon information and belief, Defendants Stiles, Smith, VanMatre and McCall tacitly or expressly agreed to commit and did commit the unlawful acts set forth in this petition, with the common purpose being the pecuniary gain of the Defendants.
134. Plaintiff suffered substantial damages as a result, including, but not limited to, paying a $4,500 deposit that was never refunded, paying $1,290 for tree removal, paying for Plumbing services on several occasions, forfeiting the Rent Credit she had accumulated, having landscaping done, painting the Home, otherwise improving the Home, attorneys’ fees, moving expenses, mental pain, anguish, emotional distress, embarrassment, humiliation, and inconvenience.
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