COUNT ONE (Deceptive Sales Practices)
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. 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)
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. 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)
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. 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)
Defendants did fraudulently accept funds for the construction of the nine-foot garage doors when Defendant's had no intention of constructing same. 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. Defendant's conversion of Plaintiffs funds under such false pretenses constitutes fraudulent conveyance.
COUNT FIVE (Forgery)
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.
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. Plaintiff contents that submission of altered instrument constitutes forgery in the third degree pursuant to K.R.S. 516.40 (1). Plaintiff contends submission of a forged instrument to a home mortgage company under false pretenses constitutes a separate claim of fraud.
COUNT SIX
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. Defendant would have filed action in this court to recover the cost of said breach without hesitation. 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.
Defendant's agent verbally indicated as much in a discussion with Mark Whealy, who was the sales agent for the Pebble Creek Subdivision. Defendant's Agreement does not limit Plaintiff's ability to bring this action for their breach or fraudulent activities
COUNT SEVEN (Fraudulent Intent)
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. 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. The Defendant's action were unlawful pursuant to K.R.S. 367.170 (1) and 367.170 (2). The fact that such hardship did not transpire does not deviate Defendant
intent.
COUNT EIGHT (Fraud)
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)
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. 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.
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). Defendant's actions resulted in extreme emotional hardships the day of November 14 to get error rectified for Plaintiff's scheduled closing date of November 15. Defendant's actions were deliberate, malicious, and fraudulent.
COUNT TEN (Fraud)
Defendant's told Plaintiff that all homes abutting Pebble Creek Way required a brick wrap. This is a material misrepresentation. Defendants have constructed many homes that abut Pebble Creek Way that do not have brick wraps. Photos of lot abutting Pebble Creek Way that clearly do not have a Brick Wrap is attached hereto as Plaintiff's Exhibit PX (25). 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). Defendant's did make said misrepresentation to unjustly and fraudulently enrich themselves at Plaintiff's expense.
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