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Monday, September 23, 2019

Realtor countersues buyers who claim the seller lied about O’Fallon lot size

By Heather Isringhausen Gvillo | Aug 4, 2015


A realtor accused of lying about the size of an O’Fallon property is countersuing the buyers, accusing the couple of breach of contract for filing a lawsuit instead of handling the dispute in arbitration.

D. Michael Gibson and Sherry Gibson filed their April 30 lawsuit against Glen E. Dempcy, as trustee of the living trust of Glen E. Dempcy, Glen Dempcy, as successor trustee of the Judith K. Dempcy living trust, Glen E. Dempcy and Judy Dempcy Homes.

According to the complaint, the defendants owned a property at 1638 Mary Todd Lane in O’Fallon. Glen E. Dempcy, a realtor, served as trustee of the two trusts and is owner of Judy Dempcy Homes. He allegedly advertised the property as encompassing 3.5 acres.

On March 14, 2014, the plaintiffs claim they bought the property from Dempcy for $390,000, adding that the contract stated that the property was 3.5 acres.

However, after closing on the property, a survey was performed and the plaintiffs claim they discovered that their new land was just 1.99 acres.

They accuse the defendants of violating the Residential Real Property Disclosure Act and Consumer Fraud Act.

The defendants denied the allegations in their July 6 answer to the first amended complaint through attorneys Kyle Christopher Oehmke and Matthew R. Henderson of Hinshaw & Culbertson LLP in Belleville.

They argue in their affirmative defenses that the purchase contract stated that the subject property was sold “as is,” and that the plaintiffs were given “reasonable opportunity to inspect the property and/or to obtain a survey, which further allowed plaintiffs to terminate the contract.” However, they claim the plaintiffs never exercised these rights under the contract.

They also argue that the contract made it clear that any listing of acreage was an approximation and not guaranteed or warranted.

Then on July 10, Glen Dempcy, individually and on behalf of Glen E. and Judith K. Dempcy, filed a counterclaim against the Gibsons for breach of contract.

Dempcy claims in his countersuit that he has fulfilled his requirements under the contract by delivering the single family residence to the Gibsons as required.

He accuses the Gibsons of breaching the contract by filing their seven-count lawsuit. Dempcy claims the contract established that the parties agreed to submit any claims or disputes over $5,000 to mediation and arbitration if mediation was unsuccessful.

Dempcy claims he suffered damages as a result of the plaintiff’s alleged breach of contract because he has had to pay attorney’s fees to defend himself in the suit. He seeks to be awarded costs and attorney fees.

He also filed a motion to dismiss the complaint, arguing that the dispute should have been handled in mediation or arbitration. He asks the court to either dismiss the complaint or enforce the contract.

The plaintiffs seek recovery of actual damages of $34,000, punitive damages in excess of $50,000, attorney’s fees and court costs.

They are represented by Laura E. Schrick in Belleville.

St. Clair County Circuit Court case number 15-L-259

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