A California couple is suing Tamarack Resort and AmeriTitle for failing to return earnest money when the couple decided not to buy two townhomes at the resort in 2005.
Deane and Nena Haskins of San Diego filed the case in U.S. District Court in Boise this month. The lawsuit says Tamarack is guilty of fraud and owes the couple more than $72,000 in earnest money, interest, attorneys' fees, travel expenses and compensatory and consequential damages.
No hearing has been scheduled for the lawsuit. "Plaintiffs believe that the fraud ... is part of a larger pattern of fraud committed against purchasers of property at the Tamarack Resort who obtained 90 percent financing," court documents said.
The lawsuit says Tamarack encouraged homebuyers to sign false second home riders.
"This is in the hands of Tamarack Resort's legal counsel, and we will not be commenting on it," said Jana Straubhar, vice president of human resources and legal affairs for Tamarack Resort.
In the summer of 2004, the Haskins couple attended a Tamarack presentation in Carlsbad, Calif., where Tamarack said it could provide lenders that would offer 90 percent financing for purchasers of resort property.
Couple Steered to Lender
The couple told resort officials they were interested in buying property as an investment and that they intended to rent the property.
The couple signed two agreements with Tamarack in January 2005 for two townhomes based on the 90 percent financing representation made by Tamarack and its sales associate, court documents said.
The couple paid AmeriTitle of Boise $72,450 in earnest money. The earnest money was refundable if the couple were unable to find a lender who would provide 90 percent financing.
The couple could not find a lender and notified Tamarack, who steered the couple to First Mutual Bank, court documents said.
In July 2005, First Mutual Bank sent loan documents to the couple that asked the couple to sign a second home rider from the financing companies Fannie Mae and Freddie Mac.
The second home rider said the homes could only be used as second homes and could not be subject to timesharing, shared ownership or rental. If the property were used in the manner the couple had originally intended, they would be in default of their loan.
The couple informed First Mutual Bank that they could not sign the second home rider. First Mutual Bank told the couple that the 90 percent financing was contingent on them signing the second home rider, court documents said.
The couple informed Tamarack and AmeriTitle they were canceling their purchase of the two townhomes on July 14, 2005.
The couple cited misrepresentation and failure to obtain financing and requested the return of their earnest money.
"The covenant in your loan allows you to rent the units provided that you do not totally relinquish control by renting the units (with a) year-round lease or by entering into a rental management agreement where you are precluded from using the units for your own enjoyment," an e-mail from Tamarack CEO J.P. Boespflug said on Aug. 1, 2005. "The standard rental agreement by Tamarack meets these two criteria."
Earnest Money Refund Refused
On Aug. 3, Nena Haskins responded to Boespflug that the townhomes would immediately be in default of their loans.
"How could we ever call both of these 'second homes' with a straight face," Nena Haskins said.
Boespflug then urged the couple to sign the loan document "he knew would be patently false," court documents said.
"Since you may at some point be using one or both of your townhomes for personal, family, or friend use, you qualify for second home financing and the standard second home rider covers your situation and the lender will not declare your loan to be in default," Boespflug said in an e-mail. "You will have no issue with your loans even if you place the same in the Tamarack rental pool."
Boespflug then informed the couple that if they refused to sign their loan Tamarack would declare them in default and keep the earnest money.
On Aug. 15, 2005, Tamarack elected to keep the earnest money and instructed AmeriTitle to deliver the funds to Tamarack, which they did, court documents said.
The lawsuit says Tamarack breach edits agreements with the couple and AmeriTitle breached its "fiduciary duty owed to plaintiffs by delivering earnest money to Tamarack."
