COMMONWEALTH OF KENTUCKY

BOONE COUNTY CIRCUIT COURT

CASE NO. 03-CI- 0964  

 

 

 

www.finkhomessuck.com

KELLI KEIPER                                :

7672 Montgomery Rd. #275

Cincinnati, OH 45236                        :

           

                        PLAINTIFF                :

                                                                        COMPLAINT AND JURY DEMAND

-vs-                                                      :

                                                                                   

FINKE HOMES, INC.                      :

3180 Burlington Pike

Burlington, KY 41005                        :                                                          

 

                        DEFENDANT            :

           

                                                            :

GEORGE FINKE SR.

3180 Burlington Pike             :

Burlington, KY 41005                                                                                   

                                                            :

                        DEFENDANT

                                                            :

 

GEORGE FINKE JR.                       :

3180 Burlington Pike

Burlington, KY 41005                        :                                                          

 

                        DEFENDANT            :

 

 

TED SEITER                                     :

8669 Valley Circle Dr.

Florence, KY 41042                           :

 

                        DEFENDANT            :

 

                                                           

 

Now comes Plaintiff, Pro Se, and states as follows:

 

JURISDICTION AND VENUE

 

 

1. Plaintiff, Kelli Keiper is an individual, who at all times, relevant herein reside in the Commonwealth of Kentucky.

 

2. Defendant, Finke Homes, Inc. is a Kentucky corporation with a principal place of business located at 3180 Burlington Pike, Burlington, Kentucky 41005.

 

3. On information and belief, Defendant George Finke Jr. is an individual, who at all times, relevant herein reside in the Commonwealth of Kentucky.

 

4. On information and belief, Defendant George Finke Sr. is an individual, who at all times, relevant herein reside in the Commonwealth of Kentucky.

 

5. On information and belief, Defendant Ted Seiter is an individual, who at all times, relevant herein reside in the Commonwealth of Kentucky.

 

FACTUAL BACKGROUD

 

6. On or about May 4, 2002 Plaintiff entered Defendant’s Sales office located in Harvest Hill Subdivision to view model homes and discuss the prices of Defendants homes for the possible purchase of one of Defendants products.

 

7. Plaintiff informed Defendant’s sales representative Debra Blakey (Ms. Blakey) that Plaintiff could afford house in the $170,000 to $175,000 range based on lending guidelines and the available equity after the sale of an existing home.

 

8. Defendant’s sales representative Ms. Blakey presented Plaintiff with a brochure of the “Ashford” and showed Plaintiff a fully constructed “Ashford” home having an address of 2008 Cornucopia Ct. in the Harvest Hill Subdivision.

 

9. A copy of Defendant’s brochure is attached hereto as Plaintiff’s Exhibit “PX(1)”.

 

10. Photos of said home located at 2008 Cornucopia Ct. is attached hereto as Plaintiff’s Exhibit “PX(2)”. Photo of home shows Defendant’s presentation of the “Ashford” with “Elevation E”.

 

11. Defendant sales representative Ms. Blakey indicated that there was an “Ashford” model in the Pebble Creek Subdivision located on Lot 235 having an address of 3009 Wolf Creek Dr.

 

12. Photos of said home located at 3009 Wolf Creek Dr. is attached hereto as Plaintiff’s Exhibit “PX(3)”. Photo of home shows Defendant’s presentation of the “Ashford” with “Elevation E”.

 

13. Defendant sales representative Ms. Blakey indicated  “Ashford” home available for viewing as well, located on Lot 237 of Pebble Creek Subdivision having an address of 7400 Owl Creek Dr.

 

14. Photos of said home located at 7400 Owl Creek Dr. is attached hereto as Plaintiff’s Exhibit “PX(4)”. Photo of home shows Defendant’s presentation of the “Ashford” with “Elevation C”.

 

15. All “Ashford” Homes presented had what Defendant later identified as a “Brick Wrap.”

 

16. Defendant never showed, nor did Plaintiff have any information or belief, based on Defendant’s misrepresentation, that the “Ashford” home was available without what Defendant’s later called a “Brick Wrap.”

 

17. Plaintiff was provided a geographical representation of the Pebble Creek Subdivision and on or about May 5, 2002 Plaintiff viewed all the “Ashford” homes Defendant had and conducted search for possible home sites in the Pebble Creek Subdivision in which to build.

 

18. During the search of the Pebble Creek Subdivision, Plaintiff identified two additional “Ashfords” that Defendant’s had constructed.

 

19. Lot number 229 (229PC) having a street address of 3033 Wolf Creek Dr., had an “Ashford Elevation E” similar to the one Plaintiff was considering. A photo of 3033 Wolf Creek Dr. (229PC) is attached hereto as Plaintiff’s Exhibit “PX(5)”.

 

20. Lot number 228 (228PC) having a street address of 3037 Wolf Creek Dr., had an “Ashford Elevation D” similar to the one Plaintiff was considering. A photo of 3037 Wolf Creek Dr. (228PC) is attached hereto as Plaintiff’s Exhibit “PX(6)”.

 

21. Plaintiff located Lot 328 (328PC) as an ideal location in which to build on and contacted Defendant sales representative Ms. Blakey regarding Plaintiffs selection.

 

22. On or about May 7, 2002 Defendant’s sales representative Ms. Blakey met with Plaintiff at Lot 328 (328PC) in the Pebble Creek Subdivision to discuss the site and “Ashford” home that Plaintiff decided to construct on said lot.

 

23. Defendant’s sales representative Ms. Blakey indicated verbally that the “Ashford Elevation E” started at $168,000 plus any options or upgrades that the buyer contracted for.

 

24. On May 9, 2002 Plaintiff visited Defendant’s sales office at Harvest Hill and Defendant’s sales representative provided Plaintiff with another copy of the “Ashford” brochure and placed the price of each “Elevation” including the “Elevation E” which is identical to the model located on Lot 235 of the Pebble Creek subdivision.

 

25. A copy of the brochure with prices is attached hereto as Plaintiff’s Exhibit “PX(7)”.

 

26. The price the Defendant’s sale representative Ms. Blakey placed on the line for “Elevation E” was $168,050, which fell into the price range Plaintiff stated in the initial meeting of May 4, 2002.

 

27. Plaintiff had in her possession and did present a preliminary “site development plan” that Plaintiff had prepared. A copy of the preliminary “site development plan” is attached hereto as Plaintiff’s Exhibit “PX(8)”.

 

28. Plaintiff had in her possession and did present a preliminary plan for the completion of the basement once Defendants had completed the construction of the proposed “Ashford” home Plaintiff was contracting to have built. A copy of the preliminary plan for the basement is hereto attached as Plaintiff Exhibit “PX(9)”.

 

29. Defendant sales representative Ms. Blakey did ask for and Plaintiff did provide a copy of the preliminary “site development plan” that Plaintiff had prepared.

 

30. On May 7, 2002 Plaintiff contacted Wells Fargo Home Mortgage Loan Officer Mike Eubanks (Mr. Eubanks) in the Fort Mitchell office to process a loan application.

 

31. On May 9, 2002 Plaintiff submitted a complete application and all supporting documentation by facsimile to Wells Fargo for consideration of financing the “Ashford” home.

 

32. On May 9, 2002, Mr. Eubanks of Wells Fargo Home Mortgage informed Plaintiff that he had already contacted Defendant’s sales representative Ms. Blakey and received all the information regarding the home Plaintiff wanted to construct.

 

33. On May 10, 2002 Mr. Eubanks of Wells Fargo informed Plaintiff and Defendant’s sales representative Ms. Blakey that Plaintiff was approved to proceed with contracting the home construction based on the verbal approval of Well Fargo’s underwriters.

 

34. Defendant’s sales representative Ms. Blakey contacted Plaintiff the afternoon of May 10, 2002 and acknowledged Mr. Eubanks telephone approval and Plaintiff scheduled a meeting at the Harvest Hill sales office for the purpose signing a “Sales Agreement” the following day

 

35. On May 11, 2002 Defendant included into the price of the “Ashford” an Eight Thousand Nine Hundred and Fifty Dollar ($8,950) charge for a “Brick Wrap” that Defendant said is required for the home on Lot 328PC.

 

36. Defendant’s illegal sales tactic of “bait and switch” caused the price of the home to swell to $185,198 for a home originally stated to be priced at approximately $176,250 with the desired options Plaintiff expressed.

 

37. On May 11, 2002 the parties entered into a Sales Agreement. The Sales Agreement and “Addendum to Contract”, attached hereto as Plaintiff’s Exhibit “PX(10)”, is a preprinted form Agreement prepared by Defendant.

 

38. Defendant’s required Plaintiff to tender earnest money in the amount of One Thousand Dollars ($1,000) at the time of signing the “Sales Agreement.”

 

39. Plaintiff issued check number 2975 for One Thousand Dollars ($1,000) written to the Defendant on May 11, 2002. A copy of the check that cleared Plaintiff’s bank on May 20, 2002 is attached hereto as Plaintiff’s Exhibit “PX(11)”.

 

40. Defendant’s action resulted in Wells Fargo going back to the underwriter to see if Plaintiff still qualified.

 

41. On May 12, 2002 Plaintiff was informed that Plaintiff did qualify for the home priced at $185,198.

 

42. Defendant’s Eight Thousand Nine Hundred and Fifty Dollar ($8,950) charge over the life of the loan is Nineteen Thousand Eight Hundred and Thirty Eight Dollars ($19,938).

 

43. During the meeting on May 11, 2002 in which “Sales Agreement” was signed, Plaintiff informed Defendant’s sales representative Ms. Blakey that one option Plaintiff required were nine-foot garage doors.

 

44. Defendant’s sales representative stated that she did not know what the cost of that upgrade was and for the purpose of ascertaining a precise dollar amount for the “Sales Agreement”, that option could be excluded for now, because Defendant can always add it on anytime before “pre-construction”.

 

45. Defendant sales representative stated that a cathedral ceiling was an option that cost $1,200.

 

46. Plaintiff declined the option for a cathedral ceiling.

 

47. On May 20, 2002 Plaintiff participated in a “Selection Meeting” with Defendant’s sales representative Ms. Blakey, whereas Plaintiff made custom selections of home features Defendant had contracted to build.

 

48. Defendant’s sales representative Ms. Blakey was late for the appointment by 30 minutes, where Plaintiff waited in the model home where Defendant’s sales office of the Pebble Creek Subdivision is located.

 

49. While waiting for Ms. Blakey Plaintiff did make the following observations.

 

50. Plaintiff did witness Defendant’s sales representative Mark Whealy tell a couple in the Pebble Creek Subdivision sales office, that he (Mr. Whealy) was showing a recently built home to potential buyers because it had not been “closed on yet”.

 

51. Plaintiff did directly observe Defendants cold and callous attitude with regards to individuals based on their strict interpretation of the “Sales Agreement”.

 

52. During this “Selection Meeting” Plaintiff informed Defendant’s sales representative Ms. Blakey again the need of installing nine-foot (9’) garage doors to accommodate Plaintiff’s oversized vehicles. Defendant’s sales representative Ms. Blakey noted this on the “FINKE HOMES SELECTION SHEET” in two different locations.

 

53. This “SELECTION SHEET”, attached hereto as Plaintiff’s Exhibit “PX(12)”, is a preprinted form prepared by and signed Defendant’s legal agent. Defendant stated that the selections made on this sheet were contractually binding on the Defendants.

 

54.  Defendant’s sales representative Ms. Blakey informed Plaintiff that the selections were contractually binding however, Plaintiff had up until the “Pre-Construction Meeting” to make any changes in the selection.

 

55. On May 24, 2002 Plaintiff participated in the “Pre-Construction” meeting with Defendant’s sales representative and Defendant’s construction superintendent Robert Caudill (Mr. Caudill) at the Pebble Creek Subdivision sales office.

 

56. At this “Pre-Construction” meeting Defendant and their agents presented Plaintiff with preliminary “building plans” for said Lot 328PC that Plaintiff contracted for.

 

57. “Building plans” supplied by Defendant is actually a pre-designed set of plans for Lot 162 of Battle Ridge Subdivision (162BR) and having an address of 1108 Brigade Rd.

 

58. Copies of the relevant pages of the building plans for Lot 162 of Battle Ridge Subdivision (162BR) that Defendants presented as plans for Lot 328 of Pebble Creek Subdivision is attached hereto as Plaintiff’s Exhibit “PX(13)”.

 

59. Plaintiff notified Defendant’s sales representative and construction superintendent that the eight-foot (8’) garage doors represented on the “building plans” were incorrect.

 

60. Plaintiff referred Defendant’s sales representative and construction superintendent to the copy of Defendants own “SELECTION SHEETS” that stated nine-foot (9’) garage doors to be installed and not eight-foot (8’) garage doors.

 

61. Defendant’s construction superintendent Mr. Caudill instructed Defendant’s sales representative Ms. Blakey to get back with him on the change order so they could get “building plans” updated.

 

62. Plaintiff made comment for a notation for the placement of nine-foot (9’) garage doors to be placed on the building as per the selection sheet Plaintiff signed on May 20, 2002.

 

63. Defendant failed to make that notation as requested stating that the change order and the “Selection Sheets” Plaintiff signed would suffice.

 

64. Defendant’s sales representative Ms Blakey again informed Plaintiff that there was an additional cost associated with the installation of the nine-foot (9’) garage doors, and had forgotten about checking on that price.

 

65. Defendant’s sales representative informed Plaintiff that a change order could be initiated for the nine-foot (9’) garage doors, and that there would not be the traditional One Hundred Dollar ($100) charge levied because of her oversight.

 

66. Plaintiff informed Defendant’s sales representative Ms. Blakey and Defendants Construction Superintendent that the cost was not an issue in regards to this feature. Plaintiff required the nine-foot (9’) garage doors as a necessity to accommodate Plaintiff’s oversized vehicles.

 

67. Photos of Plaintiff’s vehicle unable to pull into garage with eight-foot garage doors is attached hereto as Plaintiff’s Exhibit “PX(14)”.

 

68. Defendant’s sales representative Ms. Blakey informed Plaintiff that she would get back with Plaintiff on the additional cost for the nine-foot (9’) garage doors.

 

69. Plaintiff informed Defendant’s agents that she would tender the difference in cost as soon as Defendant disclosed what that amount was.

 

70. Defendant stated that the excavation for the home would begin “within two weeks or so” following the “Pre-Construction Meeting”, thereby Plaintiff had reason to expect Defendant to make the cost known to Plaintiff known on or about June 10, 2002.

 

71. Defendant required Plaintiff to sign a “Contingent Home Sales Agreement” and pay a non-refundable $2,000 payment in order to begin construction. Defendant informed Plaintiff that construction would begin in “two weeks or so.”

 

72. A blank copy of this “Contingent Home Sales Agreement”, attached hereto as Plaintiff’s Exhibit “PX(15)”. The “Contingent Home Sales Agreement” is a preprinted form prepared by Defendant.

 

73. Plaintiff issued check number 3006 for Two Thousand Dollars ($2,000) written to the Defendant on May 24, 2002. A copy of the check that cleared Plaintiff’s bank on May 31, 2002 is attached hereto as Plaintiff’s Exhibit “PX(16)”.

                                                                                                                                     

74. Defendant’s sales representative Ms. Blakey informed Plaintiff that she would provide Plaintiff with a copy of the signed “Contingent Home Sales Agreement” once it was signed by Defendant’s Agent.

 

75. Defendant never provided a copy of “Contingent Home Sales Agreement” bearing all party signatures.

 

76. Defendant did not begin excavating until sometime the week of June 26^th, 2002.

 

77. Plaintiff contacted Defendant’s sales representative Ms. Blakey regarding the cost of the nine-foot (9’) garage doors on or about July 2, 2002.

 

78. Defendant’s sales representative Ms. Blakey informed Plaintiff that she had forgotten about getting back to Plaintiff and that “she would find out the cost and get back to Plaintiff the following day.”

 

79. Defendant’s sales representative Ms. Blakey contacted Plaintiff on July 5, 2002 and apologized for not getting back with Plaintiff prior to the July 4, 2002 holiday and informed Plaintiff that the nine-foot (9’) garage doors cost an additional Two Hundred and Forty Nine Dollars ($249) in addition to a Two Hundred and Fifty Dollars ($250) charge for the “ten-year waterproofing” that was to be applied to the basement foundation.

 

80. Plaintiff informed Defendant’s sales representative that she would be in the sales office the next day, Saturday July 7, 2002 to pay Four Hundred and Ninety Nine Dollars ($499).

 

81. On July 7, 2002 Plaintiff did personally visit the sales office at Harvest Hill and tendered personal check #2980 in the amount of Four Hundred and Ninety Nine Dollars ($499). A copy of the check that cleared Plaintiff’s bank on July 22, 2002 is attached hereto as Plaintiff’s Exhibit “PX(17)”.

 

82. Defendant’s sales representative Ms. Blakey completed  “Change Order No. 1” for the nine-foot (9’) garage doors and Plaintiff did sign “Change Order No. 1.”

 

83. A copy of “Change Order No 1” is attached hereto as Plaintiff’s Exhibit “PX(18)”.

 

84. Plaintiff also requested two (2) garage door openers be installed.

 

85. Defendant’s sales representative Ms. Blakey completed “Change Order No. 2” for the installation of two (2) garage door openers at a cost of Seven Hundred and Twenty Dollars ($720).

 

86. A copy of “Change Order No 2” is attached hereto as Plaintiff’s Exhibit “PX(19)”.

 

87. Defendant stated that they could submit the “Change Order” to Wells Fargo to be added to the loan.

 

88. On or about after July 10, 2002, Plaintiff received a call from Mike Eubanks of Wells Fargo Home Mortgage, and was informed that Wells Fargo was in receipt of a “Change Order No. 2” in the amount Seven Hundred and Twenty Dollars ($720) from the Defendants.

 

89. Plaintiff was informed that the loan amount could not be increased and any changes would have to be paid for from Plaintiff’s own personal funds.

 

90. Plaintiff called Defendant’s sales representative Ms. Blakey and advised that any further changes would be paid from Plaintiff own personal funds and that Wells Fargo was not able to increase the loan amount greater then the previously approved amount.

 

91. On September 17, 2002 Plaintiff received another call from Mike Eubanks of Wells Fargo Home Mortgage and was informed that Finke Homes had again submitted another “Change Order” to Wells Fargo to increase the loan amount.

 

92. Plaintiff informed Mr. Eubanks that Defendant had been informed that no further changes were to be submitted and that all Changes initiated by Plaintiff had been paid for out of Plaintiff’s personal account.

 

93. Plaintiff had not initiated any new “Change Orders” and requested that Wells Fargo supply Plaintiff with copies of Defendants documentation by facsimile.

 

94. A copy of the facsimile sheets that Plaintiff received from Wells Fargo is attached hereto as Plaintiff’s Exhibit “PX(20)”.

 

95. Plaintiff discovered by this facsimile that Defendants had altered a previously signed “Change Order No. 2” signed by Plaintiff.

 

96. Plaintiff signed a “Change Order No. 2” previously submitted in this complaint as Plaintiff’s Exhibit “PX(19)” for the amount of Seven Hundred and Twenty Dollars ($720) dated July 6, 2002.

 

97. The facsimile entered as “PAGE 2” of Plaintiff’s Exhibit “PX(20)” is that of a forged and altered Plaintiff’s Exhibit “PX(19)”.

 

98. On or about July 12, 2002 Plaintiff did personally visit construction site for 328PC and noted that Defendants had poured foundation for the home and inserted eight-foot (8’) garage doors and not nine-foot (9’) garage doors.

 

99. Plaintiff immediately called Defendant’s sales representative Ms. Blakey and informed her of the eight-foot garage doors being set in the foundation.

 

100.  Defendant’s sales representative Ms. Blakey informed Plaintiff that she

would have to get with Defendant Ted Seiter regarding the mistake.

 

101. On or about July 14, 2002 Defendant’s sales representative called Plaintiff

and informed the Plaintiff that Defendant Ted Seiter stated that “it was to late to do anything about it and we would just have to accept it.”

 

102. Sometime the week of August 11, 2002 Defendant’s gave Plaintiff copies

of the “building plans” for 328PC that showed “328PC” entered into the “JOB NUMBER” area, however, they were the same plans as the home plans that were previously provided to Plaintiff at the “Pre-Construction” meeting on May 24, 2002.

 

103. Defendant’s merely “penciled in” a single rectangle in the “LEFT

ELEVATION” detail to represent a large single door garage.

 

104. The “FOUNDATION PLAN” represents eight-foot garage doors and not

nine-foot garage doors as contracted.

 

105. The “SECOND FLOOR PLAN” indicates a “cathedral ceiling”, also

contrary to the “ADDENDUM to CONTRACT” signed on May 11, 2002.

 

106. Copies of the relevant pages of the building plans for Lot 162 of Battle

Ridge Subdivision (162BR) that Defendants tried to pass off as plans for Lot 328 of Pebble Creek Subdivision is attached hereto as Plaintiff’s Exhibit “PX(21)”.

 

107. Plaintiff visited the couple residing a 1108 Brigade Rd. (LOT 162BR) and

resident’s verbally indicated to Plaintiff that they had never considered an “Ashford” plan and that the home constructed on said lot is not an “Ashford” home.

 

108. Photos of the home located on 162BR is hereto attached as Plaintiff’s

Exhibit “PX(22)”

 

109. Plaintiff received and accepted an offer for her existing home on October

20, 2002.

 

110. Plaintiff immediately contacted Defendant’s sales representative Ms.

Blakey and informed her (Ms. Blakey) of the offer and acceptance of Plaintiff’s home.

 

111. Plaintiff immediately provided Defendant’s sales representative Ms.

Blakey a copy of the offer and acceptance by facsimile, as per her request.

 

112. A copy of that fax and a confirmation of the receipt of the facsimile is 

attached hereto as Plaintiff’s Exhibit “PX(23)”.

 

113. At the time of this offer and acceptance, Defendant’s had yet completed

Plaintiff’s home.

 

114. At the time of this offer and acceptance, the “120 days after

commencement of construction with completion expected on or about approx. 120 days from start const” had not elapsed.

 

115. At the time of this offer and acceptance, the construction of Plaintiff’s

Home (LOT 328PC) had still not been completed.

 

116. After the offer and acceptance of Plaintiff’s existing home and prior to

Defendant’s completion of Plaintiff’s home, Defendant’s sales representative Mr. Whealy did continue to present Plaintiff’s home as available for sale.

 

117. Defendant’s sales representative Ms. Blakey told plaintiff that Defendant’s

sales representative Mr. Whealy was in fact attempting to sell Plaintiff’s home.

 

118. Defendant’s sales representative Ms. Blakey did state that Mr. Whealy

was offering Plaintiff’s home for sale and would in fact sell Plaintiff’s home if provided an offer.

 

119. Plaintiff was contractually obligated to sell existing home as of October

20, 2002 and Defendant’s, without any moral conscience and outside good faith, continued to represent Plaintiff’s home for sale.

 

120. On or about November 2, 2002 Plaintiff was notified by telephone by her

Real Estate Agent Janet Robinson that the buyer had a settlement date scheduled for November 15, 2002.

 

121. Plaintiff notified Mike Eubanks of Wells Fargo to schedule a closing on

the afternoon of November 15, 2002.

 

122. Plaintiff notified Defendant’s sales representative Ms. Blakey of the

scheduled closing date on the loan of November 15, 2002.

 

123. On or about November 7, 2002 Plaintiff conducted a “PRECLOSING

WALKTHROUGH” with ProHome (Defendant’s “Builders Home Warranty” service provider).

 

124. Plaintiff did note as item one on the list of deficiencies (ATTACHMENT

A) was the fact that Defendants had installed eight-foot garage doors and not nine-foot garage doors as contracted.

 

125. A copy of the list of deficiencies (ATTACHMENT A) is hereto attached

as Plaintiff’s Exhibit “PX(24)”.

 

126. Defendant failed to disclose to Wells Fargo Home Mortgage $2,000 in

earnest money paid by Plaintiff.

 

127. Plaintiff discovered Defendant’s non-disclosure the day before closing,

November 14, 2002, when closing agent Kentucky Title faxed preliminary closing documentation to Plaintiff pursuant to federal law.

 

128. Plaintiff immediately contacted Wells Fargo on this discrepancy.

 

129. Mr. Eubanks from Wells Fargo stated that Wells Fargo Home Mortgage

had no knowledge of the $2,000 paid by Plaintiff on May 24, 2002 to Defendant to initiate construction pursuant to their “Contingent Home Sales Agreement”

 

130. Plaintiff provided Wells Fargo with copies of Plaintiff’s check book

indicating check # 3006 for $2,000 written to the Defendant on May 24, 2002 as well as a blank copy of the “Contingent Home Sales Agreement” that Plaintiff was required to sign to order to start construction on the home.

 

131. After the closing on November 15, 2002 Plaintiff took immediate

occupancy of 2923 Spring Cove Way.

 

132. Plaintiff personally observed on or about November 16, 2002 Defendant’s

sales representative Mark Whealy did sneak onto Plaintiffs property and shamelessly remove a “For Sale” sale from the corner of Plaintiff’s property.

 

133. Plaintiff also noted that her property never had a “SOLD” sign ever

affixed anywhere on the property during anytime of the process despite verbal statements to the contrary.

 

134. Legal research into Defendant’s past actions reveal that Defendant’s

demands “buyer” to comply with “Sales Agreement” even after their breach, and uses economic leverage against buyers to force acceptance of failed performance by Defendants.

 

 

COUNT ONE

(Deceptive Sales Practices)

 

135. Plaintiff incorporate by reference Paragraphs 1 through 134 above as if

fully rewritten herein.

 

136. Defendant participated in deceptive sales practice of “bait and switch”.

Plaintiff provided three finished homes as representative of what the product Plaintiff was purchasing and never disclosing the prices that were being quoted were not accurate in regards to the product the Plaintiff had a reasonable expectation.

 

137. Defendant’s misrepresentation was unlawful pursuant to K.R.S. 517.40(1)

and K.R.S. 367.170(1).

 

 

COUNT TWO

(Breach of Contract)

 

138. Plaintiff incorporate by reference Paragraphs 1 through 137 above as if

fully rewritten herein.

 

139. Defendant did breech the contract in regards to constructing Plaintiffs

home with eight-foot garage doors and not nine-foot garage doors, as they were contractually obligated.

 

140. Plaintiff is now without use of one-half of the garage due to Defendant’s

breach and has denied Plaintiff the enjoyment of her home. Plaintiff is now barred from parking her vehicle in her garage because door entrance is to small for her oversized vehicle.

 

 

COUNT THREE

(Breach of Contract)

 

141. Plaintiff incorporate by reference Paragraphs 1 through 140 above as if

fully rewritten herein.

 

142. Defendant did breach contract in regards to construction of Plaintiff’s

home with a cathedral ceiling when in fact the cathedral ceiling was a $1,200 option that the Plaintiff declined to accept during the meeting in which Plaintiff signed “Sales Agreement”.

 

143. Defendant again with no regards to their contractual obligation, did

construct Plaintiff’s home, as they seemed fit as opposed to the “Sales Agreement”.

 

 

COUNT FOUR

(Fraud)

 

144. Plaintiff incorporate by reference Paragraphs 1 through 143 above as if

fully rewritten herein.

 

145. Defendants did fraudulently accept funds for the construction of the nine-

foot garage doors when Defendant’s had no intention of constructing same.

 

146. Defendants refused to correct and remedy their error in the construction of

Plaintiffs home and merely dismissed Plaintiffs inquiry into the error. Defendant Vice-President Ted Seiter had no intention of correcting the mistake and made no offer to remedy the situation.

 

147. Defendant’s conversion of Plaintiffs funds under such false pretenses

constitutes fraudulent conveyance.

 

 

COUNT FIVE

(Forgery)

 

148. Plaintiff incorporate by reference Paragraphs 1 through 147 above as if

fully rewritten herein.

 

149. Defendant attempted to commit loan fraud by altering a signed instrument

and faxing it to Plaintiff’s loan officer at Wells Fargo in an attempt to recover cost for garage door openers.

 

150. Plaintiff signed a “Change Order” reflecting nine-foot garage doors and

Defendant did change the “9” to an “8” on the “Change Order” after the fact, in an attempt to hide the breach of contract.

 

151. Plaintiff contents that submission of altered instrument constitutes forgery

in the third degree pursuant to K.R.S. 516.40(1).

 

152. Plaintiff contends submission of a forged instrument to a

home mortgage company under false pretenses constitutes a separate claim of fraud.

 

 

COUNT SIX

 

 

153. Plaintiff incorporate by reference Paragraphs 1 through 152 above as if

fully rewritten herein.

 

154. Plaintiff contends that if she had failed to meet any conditions of the

agreement, Defendant would have confiscated all monies paid in the process and Defendant would have sold the home to another party at a loss.

 

155. Defendant would have filed action in this court to recover the cost of said

breach without hesitation.

 

156. Plaintiff’s Sales Agreement provides for such actions for themselves as a

means to protect them and limit their legal liability exposure in the event of that scenario.

 

157. Defendant’s agent verbally indicated as much in a discussion with Mark

Whealy, who was the sales agent for the Pebble Creek Subdivision.

 

158. Defendant’s Agreement does not limit Plaintiff’s ability to bring this

action for their breach or fraudulent activities

 

 

COUNT SEVEN

(Fraudulent Intent)

 

159. Plaintiff incorporate by reference Paragraphs 1 through 158 above as if

fully rewritten herein.

 

160. Defendant’s sales agent Mark Whealy did continue to represent Plaintiff’s

home as available to purchase based on Plaintiff’s delay in closing on home, after defendant had received a copy of the signed contract of Plaintiffs existing home.

 

161. Had Defendant received a contract on Plaintiff’s new home, after Plaintiff

had contractually obligated to sell her existing home, Defendant’s would have created an intolerable condition that is unconscionable.

 

162. The Defendant’s action were unlawful pursuant to K.R.S. to 367.170(1)

and 367.170(2)

 

163. The fact that such hardship did not transpire does not deviate Defendant

“intent.”

 

 

COUNT EIGHT

(Fraud)

 

164. Plaintiff incorporate by reference Paragraphs 1 through 163 above as if  

                  fully rewritten herein.

 

165. As stated in COUNT FOUR of this complaint, Defendant submitted an

“Altered” instrument to a financial institution in an attempt to enrich themselves under false pretenses.

 

 

 

 

COUNT NINE

(Fraud)

 

166. Plaintiff incorporate by reference Paragraphs 1 through 165 above as if

fully rewritten herein.

 

167. Defendants deliberately withheld the fact that Plaintiff did tender to

Defendant’s Two Thousand Dollars ($2,000) in earnest money from Plaintiff’s home mortgage lending institution.

 

168. Defendant’s relied on a combination of the complexity of the closing

process and the perceived notion of the lack of sophistication of the Plaintiff, and the law of probabilities to illegally and fraudulently defraud Plaintiff’s monies by conversion.

 

169. Defendants failure to provide a signed copy of the “Contingent Home Sale

Agreement” is evidence that Defendant’s had formulate intent from the beginning to defraud Plaintiff’s Two Thousand Dollars ($2,000)

 

170. Defendant’s actions resulted in extreme emotional hardships the day of

November 14, 2002 to get error rectified for Plaintiff’s scheduled closing date of November 15, 2002.

 

171. Defendant’s actions were deliberate, malicious, and fraudulent.

 

 

 

COUNT TEN

(Fraud)

 

 

172. Plaintiff incorporate by reference Paragraphs 1 through 171 above as if

fully rewritten herein.

 

173. Defendant’s told Plaintiff that all homes “abutting Pebble Creek Way”

required a brick wrap.

 

174. This is a material misrepresentation.

 

175. Defendants have constructed many homes that abut Pebble Creek Way

that do not have brick wraps.

 

176. Photos of lot abutting Pebble Creek Way that clearly do not have a “Brick

Wrap” is attached hereto as Plaintiff’s Exhibit “PX(25)”.

 

177. A tabulation of all address within the Pebble Creek Subdivision that abut

Pebble Creek Way that do not have a “Brick Wrap” as Defendant claimed by lot number and street address is attached hereto as Plaintiff’s Exhibit “PX(26)”.

 

      176.           Defendant’s did make said misrepresentation to unjustly and fraudulently

enrich themselves at Plaintiff’s expense.

 

 

 

 

WHEREFORE, Plaintiff, Kelli Keiper demands judgments against defendants, jointly and severally, for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars; punitive damages in the amount of Two Hundred Thousand ($200,000.00) Dollars; civil damages in the amount of Twenty-Five Thousand ($25,000) per violation; treble damages, plus interest, cost, and reasonable attorney cost in preparation of this complaint and all other relief to which she is entitled herein. Plaintiff is entitled to incidental and consequential damages from Defendants for Breach of Contract pursuant to K.R.S. 355.2-714(3). Plaintiff gave notification of breach upon discovery of said breach to Defendant’s on no less then three separate occasions.

Plaintiff made known of the breach of contract upon Defendant’s warranty inspection prior to the acceptance of home pursuant to subsection 3 of K.R.S. 355.2-607. Plaintiff is entitled to punitive damages from defendants pursuant to K.R.S. 411.184(2). Assessment should be substantial pursuant to K.R.S. 411.186(2)(e).

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                        Kelli K. Keiper

                                                                        Plaintiff, Pro Se

                                                                        7672 Montgomery Rd. #275

                                                                        Cincinnati, OH 45236

                                                                        859-371-1833

                                                                        (Fax) 859-746-6594

 

 

 

 

 

 

 

 

 

 

 

 

JURY DEMAND

 

Plaintiff, Pro Se, hereby demands a trial by jury on all issues so triable.

 

 

 

 

                                       

                                                                        Kelli K. Keiper

                                                                        Plaintiff, Pro Se