Court limits notice due to Hermitage creditor list length

Hermitage Club at Haystack Mountain.

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MONTPELIER — The Hermitage Club Realty of West Dover and its owner/operator James R. Barnes have been fined $5,000, while former employee Bobbi-Ann Resek was assessed $2,500 by the Vermont Real Estate Commission for practicing without a license.

The state commission also voted to revoke the expired real estate license for Resek of East Dover. The commission said it had previously disciplined Resek in January 2016 for another unlicensed practice case.

Barnes is the founder and former owner of Hermitage Club, a private ski resort at Haystack Mountain, and associated properties. He went through receivership before the property was sold through a bankruptcy auction earlier this year for about $8 million to Hermitage Member Group Inc., a group started by members of the club when it was run by Barnes.

The new unauthorized real estate practice charges against the three parties involved a proposed $1.65 million transaction in 2016, the commission said in its 7-page order.

“The practice by the two individual respondents in this matter was a foreseeable train wreck and illustrates why a license is required,” Paige Farrington, the acting commission chair said in the order.

Besides one count of unauthorized real estate practice, the state also charged the failure to comply with federal or state statutes or rules governing the profession, records show.

The respondents have a right to appeal the administrative findings to the Office of Professional Regulation within the office of Secretary of State Jim Condos.

The proposed sale involved Cara Macksoud and her husband Aaron Kehoe of Dover for their property at 20 Carriage House Drive, which is part of the Hermitage Club development at Haystack Mountain. The development includes several corporate entities and has a privately owned ski facility, the commission noted.

Resek offered to market, list, show and sell their home through Hermitage Realty, according to the charges. She provided the sellers with an “exclusive right to market agreement.” The paperwork also authorized the respondents to list the property with Multiple Listing Service — a regional real estate database.

Macksoud, who testified at a June 24 disciplinary hearing, said she had seen Resek participating in conversations in a section of the Hermitage Club House that is marked with a prominent sign pertaining to real estate sales, the commission noted. Macksoud assumed Resek was a realtor based on her actions, the commission said.

Resek, who had several conversations with the sellers, never told them she was no longer licensed by the state of Vermont as a real estate broker or salesperson nor was the company licensed as a brokerage firm, the commission noted.

During a second phone call, Resek indicated she had a buyer in hand and needed a key and permission to access to the property because the sellers were not home, records show. There was no signed marketing agreement in place, the commission ruled.

During a third phone conversation a sale price between $1.2 million and $1.3 million was set, but Macksoud still had not seen any paperwork for their working agreement, the commission said. The sellers expressed concern about the lack of some answers during their talks, the commission said.

Several weeks into the agreement, the sellers learned their property was never listed with MLS and Resek was unlicensed, according to the administrative charges filed by Prosecuting Attorney Jennifer B. Colin. Colin said when confronted, Resek admitted the property was being marketed only to Hermitage Club members.

“The Sellers concluded that the potential sale of their house and lot through Hermitage Club was not being handled in a competent and business-like manner. Sellers then engaged Four Seasons Sotheby’s International Realty for the sale of their house and lot,” the commission wrote.

After the sellers informed Resek they were shifting to another firm, Macksoud/Kehoe reported getting a call from Resek providing an oral offer from a potential buyer, identified only by the initials J.M.

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Colin outlined the following in her charges: The sellers rejected the oral offer. The buyer then reached out to the new broker for the sellers and indicated they had no knowledge of Resek being unlicensed. The potential buyer (J.M.) made an offer, which the sellers accepted.

During the course of the proposed transaction, between the seller and buyer, Barnes asserted that the respondents were owed a 5 percent commission at the real estate closing despite not representing the sellers at the transaction and not being licensed, Colin charged.

The commission said Barnes hired a lawyer to send a letter to the lawyer representing the sellers and noting that a sales contract had been signed for $1.65 million through Betsy Wadsworth of Four Seasons Sotheby’s International. The letter claimed $82,500 would be due at the closing. The letter from Rutland lawyer A. Jay Kenlan to Wilmington lawyer Christopher Cady was an exhibit in the case.

The sale eventually fell through in December 2016 when the high market value had collapsed, the commission said.

Cara Macksoud and Aaron Kehoe still owned the property as of the findings of the commission on July 26.

Resek, who represented herself, had said in her written responses that she had worked for Barnes under his “developer’s umbrella” and that he had the right to market and sell a property once an owner decided to put a Hermitage Club property up for resale, records show.

The commission said the problem with that asserted defense is there is no basis in fact or law for it.

“Being a developer does not confer a real estate license nor does a clause in a Declaration of Covenants,” the commission wrote.

Barnes, in his defense, claimed Hermitage Club Realty never operated until October or November 2017. He noted in his hand-written response that is when a Robert Badewicz was hired as the principal broker, the commission said.

Barnes also wrote he and Hermitage Club Realty were never involved in the transaction and then he blamed Resek for everything.

“All actions taken including misrepresentations of her role in the company were done by Resek on her own and with no authorization by Barnes or Hermitage Club Realty,” Barnes wrote.

The commission noted, “In sum, the sense of the answer by the respondent Barnes on his behalf and on behalf of Hermitage Club Realty is that it had nothing to do with this transaction and instead look to respondent Resek for any fault.”

The commission noted, however, the actions by Barnes tell another story. The commission pointed to the Nov. 11, 2016 letter from an attorney written on behalf of Barnes seeking the $82,500 commission. The letter also noted Barnes had proposed a settlement by 5 p.m. Nov. 16, 2016 or legal proceedings had been authorized.

The parties have been given 90 days to pay their civil penalties.

Resek’s earlier disciplinary case centered in part in a dispute about not properly processing a $46,500 deposit when a real estate sale fell through, state records show. She also failed to renew her license when it expired March 31, 2012, but continued her work listing and closing real estate deals, records show. Resek eventually paid her renewal fee more than 10 months late and got square with the state.

Resek waived her right to a contested hearing and the Vermont Real Estate Commission issued her a reprimand, fined her $500 and ordered her to take 6 hours of classes, including ethics, state records show. She was the broker in charge at North Real Estate in West Dover at the time.