Charleston attorney sues real estate corporation, others for fraud
Kyla Asbury Oct. 7, 2010, 3:25am
PARSONS -- A Charleston attorney is suing two individuals and a real estate corporation after he claims they engaged in fraud.
Charleston lawyer James Barber alleges $930 he paid for three nights in Canaan Valley vanished, and he proposes a class action for all who share his fate.
Pat J. Herlan; WV Real Estate Broker Inc., a corporation doing business as Almost Heaven WV Realty; its vice president and treasurer, Murray G. Dearborn; and the Estate of Pat J. Herlan, who was the incorporator, president and secretary of the corporation, were named as defendants in the suit.
In January, Barber says he entered into an agreement with Almost Heaven WV Realty for the rental use of a property located at Timberline Resort in Tucker County for Jan. 27 to Jan. 30, 2011, according to a complaint filed Sept. 23 in Tucker Circuit Court.
"Defendants have stolen or otherwise misappropriated the plaintiff's deposit," Barber wrote.
Barber claims the defendants were acting as brokers/realtors/property managers for the owners of the rental properties throughout the Canaan Valley area. He claims he secured his rental reservation with a deposit in the amount of $930, paid by his credit card.
In July, Barber was contacted by the owner of the rental property and advised that Herlan's broker's license had been revoked, that Almost Heaven Realty had closed and that he should request a refund of the deposit, according to the suit.
Barber claims he requested a refund of the entire deposit, but did not get a reply to his request. He claims the defendants have breached their agreement and have stolen his deposit money.
The defendants engaged in a plan to commit fraud upon potential renters and convert or otherwise misappropriate rental deposits for their own use, according to the suit.
Barber claims the defendants' actions "were done intentionally and maliciously and with fraudulent intent."
Barber is seeking compensatory and punitive damages in the amount of $250,000. He is bringing his action as a class action against the defendants on behalf of all others who paid rental deposits to Almost Heaven WV Realty. He is representing himself.
Barber proposed to certify a class of all persons who paid deposits to Almost Heaven on rental properties in the Timberline or Canaan Valley areas.
"Upon information and belief, there are dozens of members of the class whose identities can be ascertained from the records and files of the defendants and from other sources," he wrote. "The certification of a class would allow litigation of claims that, in view of the expense of the litigation, may be insufficient to support separate claims."
The class period would commence on Dec. 1, 2009, he wrote.
The case has been assigned to Circuit Judge Phil Jordan.
Tucker Circuit Court case number: 10-C-51