Zhu v. Countrywide Realty, Co., Inc.

• Decision Date: 10 August 2001
• Docket Number: No. CIV. A. 00-2290-KHV.,CIV. A. 00-2290-KHV.
• Citation: 165 F.Supp.2d 1181
• Parties: Xiangyuan (Sue) ZHU, Plaintiff, v. COUNTRYWIDE REALTY, COMPANY, INC., et al., Defendants.
• Court: U.S. District Court — District of Kansas

165 F.Supp.2d 1181

Xiangyuan (Sue) ZHU, Plaintiff, v. COUNTRYWIDE REALTY, COMPANY, INC., et al., Defendants.

No. CIV. A. 00-2290-KHV.

United States District Court, D. Kansas.

August 10, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David S. Whinery, Lawrence, KS, Xiangyuan Sue Zhu, Topeka, KS, pro se, for plaintiff.

Thomas G. Lemon, Todd D. Powell, Fisher, Cavanaugh, Smith & Lemon, P.A., Topeka, KS, for defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Xiangyuan (Sue) Zhu brings suit against Countrywide Realty, Company, Inc. ("Countrywide"); Wittmer Farm Realty Company, Inc. ("Wittmer"); Bunting Appraisal Services; and individual defendants Marc E. Bunting, Robert Thomas and Candace Thomas. This matter comes before the Court on its Order To Show Cause (Doc. # 148) filed May 30, 2001, defendants' Motion For Summary Judgment (Doc. # 113) filed April 11, 2001 and plaintiff's Motion To Strike The Deposition Transcript Of Xiangyuan (Sue) Zhu Attached To Defendants' Motion For Summary Judgment (Doc. # 140) filed May 21, 2001. After carefully considering the parties' arguments and authorities, the Court is ready to rule.

Background

The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.¹

Plaintiff, a single mother, is a first time homebuyer. She works full time as a senior risk analyst at Federal Home Loan Bank of Topeka. On June 12, 1998, plaintiff entered into a real estate contract with Todd and Leslie Hansen to purchase a home at 2918 S.W. Gainsboro Road in Topeka, Kansas. Robb McDowell of Greenbrier Realtors represented plaintiff as the buyer's agent. Marc Bunting of Countrywide served the Hansens as the listing agent. Bunting is a licensed real estate agent and appraiser, authorized to conduct business in Kansas. During the real estate transaction, Bunting acted solely in his capacity as a real estate agent with Countrywide.² Wittmer was not involved in any of the transactions involved in plaintiff's complaint.

On June 13, 1998, plaintiff signed the real estate contract, which stated that she agreed to accept the property "as is," so long as the inspection revealed that all necessary repairs could be made for less than one per cent of the purchase price.³ If the repairs exceeded one per cent, plaintiff had the option of accepting the property "as is" or cancelling the contract. The seller could keep the contract in force however, by agreeing either to complete repairs or replacements in excess of the cap, or to reimburse plaintiff for excess repair costs, on or before the date of closing.⁴ The purchase price of the home was $113,000, and one per cent of that amount was $1151.05. An inspection report revealed that needed repairs would cost $2105.00. Plaintiff was concerned about the upkeep of an older home and, under the real estate contract, she was not obligated to purchase it.

On June 30, 1998, plaintiff told McDowell, her real estate agent, that she did not want to buy the home and that she no longer wanted him to represent her. That same day, Bunting called plaintiff at work. Since she had bumped out other offers, he threatened to sue her for $114,000 if she did not buy the home. Plaintiff did not have a copy of the real estate contract, and Bunting did not tell her that she had no contractual obligation to buy the home since the needed repairs were more than one per cent of the purchase price. Indeed, Bunting visited plaintiff at work later that day and told her that he would sue her for $114,000 if she did not purchase the home. He did not believe or intend, however, that his actions would harass, coerce, pressure, intimidate or in any way force plaintiff to buy the home.

The following day, July 1, 1998, plaintiff met Bunting at the home. According to plaintiff, Bunting insisted that she close the transaction the next day, July 2, 1998. Because she was worried about taking care of the house if anything went wrong, plaintiff asked Bunting whether he knew of any other defects and whether he would fix the items listed on the inspection report if she purchased the home. According to plaintiff, Bunting replied that he would take care of the house and that she did not need to know anyone else in Topeka. When Zhu asked Bunting how could she trust him since she did not know him and had never been to his office, Bunting told her that he was different from other realtors and that he would keep his promise because he had been in business for more than 20 years and owned his own company. Plaintiff purchased the property and the sale closed on July 2, 1998. On that date, Bunting gave plaintiff a signed note that stated:

The following items will be completed on the property located at 2918 S.W. Gainsboro Road in Topeka, Kansas on behalf of Xiang Yuan Zhu and will be the responsibility of Marc E. Bunting.

Install new microwave provided by Ms. Zhu. 1 days [sic] notice needed for installation. Paint and attach batt board to bottom edge of siding on south side of house. Work will be done no later than July 10th on the batt board.

See Exhibit H in Plaintiff's Opposition Memorandum (Doc. # 126). In deciding to purchase the home, plaintiff relied on Bunting's promise to make the repairs and his claim that the contract obligated her to purchase the home. Bunting made these statements with intent to deceive and defraud her, and to induce her reliance on them.⁵ Plaintiff believed that his statements were true because she did not have a copy of the real estate contract. Bunting believed that the transaction was a typical one, however, and that its terms were not unfair or discriminatory towards plaintiff.

After plaintiff purchased the home, she discovered that it had a broken water pipe, no heat or air-conditioning, a damaged garage door, and an outdated and leaky water heater. These defects made the property unfit for occupancy, but plaintiff and her daughter have resided in the home since plaintiff purchased it. Throughout the following year, plaintiff left messages for Bunting at Countrywide or on his answering machine, regarding repairs. Within a month of taking possession, plaintiff paid her first visit to Countrywide's office to request repairs. Before the transaction closed on July 2, 1998, Bunting's only contact with plaintiff had been in connection with the real estate deal. Later that month, however, he began to pursue a sexual relationship with plaintiff.⁶

In July of 1998, plaintiff visited Countrywide. At that time, Candace Thomas, who was Countrywide's office manager and Bunting's secretary, told plaintiff that "[y]ou are good in getting a man." Plaintiff's Statement Of Uncontroverted Facts in Plaintiff's Opposition Memorandum (Doc. # 126) at ¶ 32. On another office visit that month, Candace Thomas told plaintiff that "[y]ou are a Chinese" and "[y]ou'd better to [sic] find a Chinese man in town." Id. at ¶ 35. This exchange intimidated plaintiff.

While plaintiff does not claim that the promised repairs were never made, Bunting did not complete them by July 10, 1998.⁷ In August of 1998, plaintiff again visited Countrywide to inquire about repairs.

On November 23, 1998, Bunting arrived at plaintiff's home at 9:45 a.m. and told her that he was there to repair something. Bunting touched plaintiff's breasts and stated that he wanted to go to bed with her. The sight of Bunting's naked back made plaintiff fearful. When he noticed plaintiff's reaction, Bunting yelled "[w]hat are your [sic] scared for?" and "[h]ave you ever seen a man's back before?" Ultimately, Bunting seduced plaintiff instead of completing the repairs. After Bunting and plaintiff finished having sex, he used plaintiff's phone without permission. Upon learning that a customer had been waiting in his office for ten minutes, Bunting yelled at plaintiff "[t]his is all your fault" and rushed out of her home. After this incident, plaintiff felt that Bunting sexually abused her with complete indifference to her emotional distress and lack of knowledge of American social norms.

Bunting started a practice of calling plaintiff at work about repairs and asking her to go home at 11:00 a.m. When she arrived, he would look at what needed to be fixed and demand sexual favors. After sex, Bunting would say that he would send someone over to complete the repairs, and then leave. Actually Bunting did not send anyone to do the repairs and according to plaintiff, he threatened to alter plaintiff's life in Topeka (and that of her daughter) if she refused his advances. On March 23, 1999, Bunting asked plaintiff to go home at 11:15 a.m. Plaintiff wrote Bunting a check for $625.00 for a garage door and then he rushed her into bed and had sex with her.

On March 31, 1999, plaintiff called Countrywide to inquire about a repair to her home. Plaintiff asked Candace Thomas whether, in not making repairs, Bunting was treating her like he treated other customers. She also told Candace Thomas that Bunting needed to return the key to her home, which he kept under pretext of working on repairs. Candace Thomas asked Bunting to give her plaintiff's key, so that she could return it to plaintiff at Countrywide's office the next day.⁸ She also said that Bunting and plaintiff were not supposed to contact each other and that everything should go through her. At 12:20 p.m. on March 31, Bunting called plaintiff at work to tell her that on the advice of Candace Thomas, he was going to hand plaintiff over to his attorney and get a restraining order against her. Plaintiff did not want to see Bunting close to her home and she was concerned that he would try to drop off the key. She therefore dialed 911 to report the incident and her fear of Bunting. She asked a police officer to go to her home and protect her when Bunting dropped off the key. Later that day, Bunting confronted plaintiff on her driveway and stated that Candace Thomas had actually requested the restraining order (not him). Bunting also...