COMPLAINT JURY TRIAL REQUESTED. Case No. Judge. Plaintiff Josie Thamert, daughter and personal representative for the estate of her recently

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1 Christopher Peterson (12202 Abraham Bates ( E. Cottonwood Pkwy Ste 500 Salt Lake City, UT Telephone: ( Facsimile: ( Attorneys for Plaintiff. IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH JOSIE THAMERT, an individual, as personal representative for the estate of JENNIFER THAMERT. vs. Plaintiffs, GILBERT A. SALINAS, an individual; and GT HOMEOWNER SOLUTIONS COMPANY, LLC, a Utah corporation. Defendants. COMPLAINT JURY TRIAL REQUESTED Case No. Judge Plaintiff Josie Thamert, daughter and personal representative for the estate of her recently deceased mother, Jennifer Thamert ( Ms. Thamert, hereby files this Complaint and states as follows: NATURE OF THE ACTION This is an action for damages stemming from the predatory mortgage-foreclosure rescue practices of the Defendant. Defendant Gilbert Salinas ( Mr. Salinas ingratiated himself to Ms. Thamert, a severely mentally ill woman, by attempting to engage in a romantic relationship with her. Knowing that Ms. Thamert was in default on her mortgage, Mr. Salinas persuaded Ms. Thamert to breach an existing Real Estate Purchase Contract ( REPC for her home and instead take money from him to catch up on her mortgage payments. After loaning Ms. Thamert

2 approximately $6,823, to be paid back in the amount of $25,000 in 90 days, Mr. Salinas evicted Ms. Thamert from her home when she failed to keep current on her mortgage obligations. After paying off the approximately $50,000 balance on Ms. Thamert s mortgage loan, Mr. Salinas sold her home for $130,000, making a profit of over $70,000 on his $6,823 loan to Ms. Thamert. Ms. Thamert lost her home and all her personal belongings as a result of Mr. Salinas actions. Without financial resources and unemployable because of her paranoid-schizophrenia, Ms. Thamert became homeless, living on the streets of Salt Lake for eighteen months. Ms. Thamert passed away in November 2009, in large part due to complications from homelessness and mental illness. PARTIES Plaintiffs: 1. Josie Thamert, of 2047 East 3185 South, Millcreek, UT, 84109, is a citizen of the United States and the state of Utah. Defendants: 2. Gilbert Salinas is the registered agent for GT Homeowners Solutions Company, LLC, a Utah corporation. 3. GT Homeowners Solutions Company, LLC, is a Utah corporation based in Midvale. JURISDICTION AND VENUE 4. Jurisdiction is proper pursuant to Utah Code Ann This suit is brought in the Third Judicial District Court of and for Salt Lake County, State of Utah, and venue is proper pursuant to Utah Code Ann (1, because the real property in the contract at issue is located in Salt Lake County, State of Utah. Moreover, Plaintiff resides, and all the events at issue took place in Salt Lake County, State of Utah. 2

3 GENERAL ALLEGATIONS Ms. Thamert makes timely mortgage payments for six years. 6. Ms. Thamert purchased her home, located at 4646 South Quail Park Drive #K, Salt Lake City, Utah, , in April of Ms. Thamert secured the purchase of her home in part by obtaining a first mortgage loan in the amount of $35,300 from Advanced Funding Home Mortgage Loans ( Advanced Funding. 8. After her divorce, Ms. Thamert refinanced her mortgage through First National Bank of Arizona ( First National. 9. Ms. Thamert s mortgage was serviced by America Servicing Company. 10. Ms. Thamert made timely mortgage payments for six years before a divorce and complications from mental illness caused her to fall behind on her payments. A severe nervous breakdown causes Ms. Thamert to fall behind on her mortgage. 11. In February of 2007, Ms. Thamert experienced a nervous breakdown due to the onset of paranoid-type schizophrenia. 12. Ms. Thamert was hospitalized for a week due to her schizophrenic breakdown. 13. While hospitalized, Ms. Thamert was unresponsive and incoherent to her sister, Pam Rowsell, who traveled from Idaho to attempt to nurse her sister back to health. 14. Ms. Thamert received treatment for her paranoid schizophrenia from Valley Mental Health Services. 15. Ms. Thamert took at least three different powerful anti-psychotic medications daily to help manage the symptoms of her paranoid schizophrenia. 16. Despite the medications, Ms. Thamert was rarely lucid and often spoke of her 3

4 paranoid delusions to others around her. 17. Anyone who spent time around Ms. Thamert could clearly tell that she suffered from severe mental illness. Ms. Thamert contracts to sell her home to cure the default on her mortgage loan. 18. In March 2007, shortly after her nervous breakdown, Ms. Thamert entered into a Real Estate Purchase Contract to sell her home to Christopher Potter. 19. The $110,000 purchase price would have paid off the $58,000 mortgage with First National and provided Ms. Thamert with nearly $50,000 cash. 20. The contract was executed by both Ms. Thamert and Mr. Potter, with a closing date of April 2, Mr. Salinas convinces Ms. Thamert to breach the REPC and instead borrow money from him. 21. Early in 2007, Ms. Thamert met Mr. Salinas at a church function. 22. In the beginning, the relationship between Ms. Thamert and Mr. Salinas was a friendship and Ms. Thamert had no knowledge of Mr. Salinas business dealings. 23. Mr. Salinas frequently spent time with Ms. Thamert at her home and often took her out to meals which he paid for. 24. Mr. Salinas frequently called Ms. Thamert at her home. 25. Mr. Salinas knew, or should have known, about Ms. Thamert s paranoidschizophrenic breakdown and subsequent hospitalization. 26. Mr. Salinas knew, or should have known, that Ms. Thamert struggled with paranoid-schizophrenia on a daily basis. 27. Mr. Salinas knew Ms. Thamert took medications for her mental illness. 4

5 28. Mr. Salinas knew Ms. Thamert was under the care of a doctor for her mental illness. 29. When he learned of Ms. Thamert s decision to sell her home, Mr. Salinas encouraged her to break the executed REPC and instead borrow money from him to pay her overdue mortgage payments. 30. When Ms. Thamert asked her real estate agent about breaking the REPC, she was told she could breach if she paid several thousand dollars to both brokers and the buyer. 31. Mr. Salinas loaned Ms. Thamert the money so that she could pay the liquidated damages for breaching the REPC with Mr. Potter. Mr. Salinas convinces Ms. Thamert to sign over the deed on her home in exchange for an unconscionable, unenforceable lease-to-own agreement. 32. On July 10, 2007, Mr. Salinas persuaded Ms. Thamert to sign over the warranty deed on her home to him for the amount of $ Also on July 10, 2007, Mr. Salinas persuaded Ms. Thamert to enter into a Lease Agreement (the Lease whereby his company, GT Homeowners Solutions, would lease Ms. Thamert s home back to her for a period of ninety days. 34. The Lease does not provide either a start date or an end date. 34. The Lease does not specify a rental amount. 35. The Lease does not specify a due date for payments. 36. The default provision of the Lease is not initialed, as required by the contract. 37. The default provision is waived by Mr. Salinas initials. 38. The Rentals clause of the Lease ( 3, is blank, save for a handwritten notation that says make mortgage payments. 5

6 39. This handwritten notation is neither signed nor initialed by either party. 40. It cannot be proven that the handwritten notation was a part of the original Lease contract. 41. The Lease contains a fee-shifting attorney s fees provision ( 22, entitling the prevailing party in any action concerning the lease necessary and reasonable attorney s fees. 42. There is no cap on the fee-shifting provision as provided in the lease. 43. The Lease provides an option-to-purchase, whereby Ms. Thamert could purchase her home back from Mr. Salinas in exchange for $25, The option-to-purchase clause had an original amount which is crossed out, replaced by a handwritten notation. 45. The Lease provides that the option-to-purchase is cancelled if the Lessee makes even one late mortgage payment. 46. The Lessee Mortgages clause of the Lease ( 34, whereby mortgage payments would be applied to any rent due, is blank. 47. The Lease agreement is not signed or executed by the Lessor, GT Homeowners Solutions or Mr. Salinas. 48. There is no mention anywhere in the Lease of any money loaned to Ms. Thamert. 49. Because Ms. Thamert had a pre-existing legal obligation to pay her monthly mortgage, there is no consideration for the Lease contract when there is no rent or any other type of consideration given by Ms. Thamert. Mr. Salinas evicts Ms. Thamert from her home at the first opportunity he gets. 50. On October 22, 2007, Mr. Salinas and GT Homeowners Solutions gave Ms. Thamert a 10 day notice to pay $ in back rent, $14 in late charges, and $25,000 for 6

7 contractual default, or the Lease would be cancelled. for a week. 51. The Lease has no provision for $25,000 in damages for default. 52. After evicting Ms. Thamert from her home, Mr. Salinas put her in a cheap motel 53. Mr. Salinas moved Ms. Thamert s personal belongings, including priceless photographs of her children, into storage. 54. Mr. Salinas refused to pay for the storage of Ms. Thamert s property for longer than one month and persuaded Ms. Thamert, under extreme economic duress, to waive any claim to her personal property in exchange for $ Even though GT Homeowner Solutions was in possession of Ms. Thamert s home in November 2007, Defendants failed to make any payments on the mortgage on the home until the end of January FIRST CAUSE OF ACTION FRAUD 56. Plaintiff repeats and realleges 1 through 55 of her Complaint as if fully set forth herein. 57. Mr. Salinas represented to Ms. Thamert that he intended to help her stay in her home if she would walk away from the executed sales contract on her home and instead take a loan from him. 58. This representation was false, as evidenced by Mr. Salinas later actions in devising a lease agreement whereby Ms. Thamert had only ninety days to pay him $25,000 to satisfy a loan of $6, The predatory loan Mr. Salinas offered to Ms. Thamert carried an effective 7

8 A.P.R. of over 1,200%. 60. Mr. Salinas pressured Ms. Thamert to sign over the deed on her home in exchange for a Lease with terms he knew, or should have known, would likely lead to default by Ms. Thamert. 61. Mr. Salinas made these representations for the purposes of inducing default on the Lease so that he could sell Ms. Thamert s home and strip her equity. 62. Ms. Thamert acted reasonably, relying in good faith on both the personal and professional reputation of Mr. Salinas, and the promises made by him, and was ignorant of the falsity of his claims. 63. In reliance on promises to help her stay in her home, Mr. Salinas and GT Homeowners Solutions induced Ms. Thamert to breach an executed REPC for $110,000, foregoing an expected cash payment of $50,000 after satisfaction of her mortgage obligation. 64. Ms. Thamert suffered additional mental anguish and emotional distress as a result of Defendants unlawful actions. 65. Ms. Thamert became homeless and died a premature death as a result of Defendants unlawful actions. 66. Plaintiff is entitled to damages caused by Defendants fraud. These damages include, but are not limited to, attorneys fees and costs. forth herein. SECOND CAUSE OF ACTION MISREPRESENTATION 67. Plaintiff repeats and realleges 1 through 66 of her Complaint as if fully set 68. Defendant, having a pecuniary interest in the real estate transaction with Ms. Thamert, was in a superior position to know the intended terms of the lease-to-own 8

9 agreement, which he withheld from Ms. Thamert by leaving key provisions (rental amount, date due, lease start/stop dates of the Lease blank. 69. The Defendant falsely represented he would work with Ms. Thamert and not seek to remove her from her home when he waived that default provision of the Lease. 70. The 10 day notice demanding nearly $26,500 to remain in her home proves Mr. Salinas representation that he would help Ms. Thamert stay in her home was false. 71. The Defendant expected Ms. Thamert to rely on these representations when he made them before she breached the existing REPC on her home and at the signing of the Lease agreement. 72. Ms. Thamert acted reasonably in reliance upon these representations when she signed over the deed to her home based on the expectation that a good friend who had her interests at heart wanted to help her stay in her home by giving her a loan. 73. Ms. Thamert suffered damages from the loss of her home and mental anguish and emotional distress when she was pressured into a lease arrangement with terms the Defendant knew, or should have known, she could not meet. THIRD CAUSE OF ACTION BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING 74. Plaintiff repeats and realleges 1 through 73 of her Complaint as if fully set forth herein. 75. A covenant of good faith and fair dealing is implied in all contracts in the state of Utah. 76. Under the covenant of good faith and fair dealing, each party impliedly promises he will not intentionally or purposely do anything which will destroy or injure the other party s 9

10 right to receive the fruits of the contract. A violation of the covenant gives rise to a claim for breach of contract. 77. Defendant breached the covenant of good faith and fair dealing when he induced Ms. Thamert to breach an existing REPC for her home and instead sign it over to him in exchange for a $6,823 loan to be paid back in 90 days at 1,200% A.P.R. 78. The course of dealings by the Defendant, by taking advantage of a woman he knew to be mentally unstable, by making romantic gestures, and by leaving the key terms of the Lease agreement blank, put Ms. Thamert in a disadvantageous bargaining position, constituting a breach of the covenant of good faith and fair dealing. 79. Ms. Thamert is entitled to damages for breach of contract and the resultant mental anguish to be determined by this Court resulting from the breach of the covenant of good faith and fair dealing. FOURTH CAUSE OF ACTION UNJUST ENRICHMENT herein. 80. Plaintiff repeats and realleges 1 through 79 of her Complaint as if fully set forth 81. Defendants received a benefit of over $70,000 in equity from Ms. Thamert s home under circumstances that would make it unjust for them to retain them. Comment [BH1]: Inconsistent use of defendant and defendants 82. Ms. Thamert is entitled to damages in the amount of the unjust benefits received by Defendants, including the difference between the amount owed on Ms. Thamert s mortgage and the sales price on her home when it was sold for $130,000 on March 26, FIFTH CAUSE OF ACTION CONVERSION 83. Plaintiff repeats and realleges 1 through 82 of her Complaint as if fully set forth 10

11 herein. 84. Ms. Thamert had clear legal ownership of her home at the time she discussed the lease-to-own arrangement with Mr. Salinas. 85. The lease-to-own arrangement has all the traditional characteristics of a mortgage or deed of trust, and should be construed as such under Utah law. In the law of secured credit, the labels affixed by the parties in a contract are not controlling. 86. Because the contractual arrangement between Ms. Thamert and Mr. Salinas was merely a consensual lien, Ms. Thamert retained legal title to the home. 87. When Mr. Salinas later sold the home he kept the equity that Ms. Thamert had build up over years of making her monthly payments. In doing so, Mr. Salinas converted the Ms. Thamert s property to his own use and benefit. 88. As a result of Mr. Salinas unlawful conversion of Ms. Thamert s property, Ms. Thamert has been injured in that she was left homeless, lost her possessions, and suffered at least $70,000 in economic damages when Mr. Salinas sold her home and kept the equity, her equity, for himself. 89. By reason of Mr. Salinas unlawful conversion of Ms. Thamert s property, Ms. Thamert is entitled to recover the value her equity at the time of the conversion, with interest. 90. Mr. Salinas conversion of Ms. Thamert s property was done with malice or willful disregard of Ms. Thamert s rights when he knew, or should have known, that she suffered Comment [BH2]: Not sure if a law should be stated here Comment [BH3]: From West s McKinney Forms Real Property Practice from mental illness, such that punitive damages should be awarded. SIXTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 91. Plaintiff repeats and realleges 1 through 88 of her Complaint as if fully set forth 11

12 herein. 92. Defendants knew, or should have known, Ms. Thamert was in a precarious financial and emotional situation given their knowledge that she (1 was in default on her mortgage, (2 had a nervous breakdown requiring hospitalization, (3 took multiple antipsychotic medications daily, and (4 experienced paranoid delusions on a regular basis. 93. A reasonable person would have known that emotional distress would result from the disadvantageous terms of the Lease agreement, ultimately leading to default and eviction. 94. Mr. Salinas intentionally created a situation where Ms. Thamert was likely to be evicted, actions that are outrageous, intolerable, and offend generally accepted standards of decency and morality. 95. Plaintiff prays for damages for emotional distress and mental anguish as deemed appropriate by this Court. herein. SEVENTH CAUSE OF ACTION UNCONSCIONABILITY 96. Plaintiff repeats and realleges 1 through 92 of her Complaint as if fully set forth 97. The Lease contract was procedurally unconscionable when Mr. Salinas took advantage of his friendship and romantic relationship with Ms. Thamert to exercise superior bargaining power in the transaction. 98. The Lease contract was procedurally unconscionable when Mr. Salinas exercised superior bargaining power over a woman he knew, or should have known, was severely mentally ill and thus unable to consent to such a significant financial transaction. 99. The Lease contract was substantively unconscionable when it required Ms. Thamert to pay $25,000 in 90 days to remain in her home when she was only loaned $6,

13 100. Enforcement of the Lease contract would shock the conscience and contradict well-established public policy against enforcing contracts with mentally-incapacitated, vulnerable individuals Plaintiff is entitled to rescission of the Lease contract and restitution because her home, the subject of the contract, has been sold to a bona fide purchaser. EIGHTH CAUSE OF ACTION UNDUE INFLUENCE herein Plaintiff repeats and realleges 1 through 98 of her Complaint as if fully set forth 103. Mr. Salinas identified Ms. Thamer as a vulnerable target for his foreclosurerescue scheme when he cultivated a personal romantic relationship with her before disclosing his business objectives Mr. Salinas exercised undue influence over Ms. Thamert when he convinced a mentally ill woman to walk away from an executed REPC on her home that would have provided her $50,000 cash and instead commit to repay him $25,000 in 90 days or lose her home Mr. Salinas exercised undue influence over Ms. Thamert when he induced a woman he knew was severely mentally ill to sign over the deed to her home in exchange for $10 and a lease-to-own agreement with a 90 day $25,000 option-to-buy Plaintiff is entitled to rescission of the lease agreement and restitution for the fair market value of her home. forth herein. NINTH CAUSE OF ACTION UNENFORCEABLE CONTRACT (FAILURE OF CONSIDERATION 107. Plaintiff repeats and realleges 1 through 102 of her Complaint as if fully set 13

14 108. All contracts in the state of Utah require an offer, acceptance and consideration to be legally binding Consideration is a bargained-for-exchange whereby a mutuality of obligation arises Pre-existing legal duties cannot provide consideration for a contract The Lease agreement is an unenforceable contract when it required no consideration from Ms. Thamert other than the continued payments on her mortgage, payments she was legally obligated to make under her mortgage loan contract Because the Lease agreement is an unenforceable contract, Plaintiff is entitled to restitution for the conversion of her home perpetrated by Defendants using the agreement. DEMAND FOR JUDGMENT WHEREFORE, Plaintiff demands judgment against Defendants and in favor of Plaintiff as follows: 113. An order that the Defendants pay to Plaintiff such economic damages as Plaintiff has sustained by reason of fraud, misrepresentation, unconscionability, unjust enrichment, undue influence, and conversion. Economic damages should reflect the difference between the amount Ms. Thamert owed on her mortgage and the fair market value of her home, at least $70, An order that Defendants pay Plaintiff punitive damages in the amount of $350,000, to punish the Defendants and deter them from future predatory lending/foreclosurescheme business activities that prey on the financially and emotionally vulnerable members of society An award of the costs and expenses, including reasonable attorney's fees, incurred 14

15 by Plaintiff in connection with this action as provided for by statute and the Lease agreement Such other and further relief as the Court deems just and proper. DATED this 11 th day of January Abraham Bates Attorney for Plaintiff 15

16 CERTIFICATE OF SERVICE I hereby certify that the foregoing (1 COMPLAINT was served upon the following parties by placing a copy of the same in the US Mail, postage prepaid, on the 11 th day of January 2010, as follows: W. Kevin Jackson Attorney-at-Law 311 S. State Suite 380 Salt Lake City, UT ( Abraham Bates 16