DEFENDANTS STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

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1 STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS CONSTANTINE P. XINOS, ) ) Plaintiff, ) ) v. ) No L ) SUZANNE O BRIEN, DENNIS ) O BRIEN and MIKE STEWART, ) ) The Hon. Dorothy F. French Defendants. ) DEFENDANTS STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT NOW COME Defendants DENNIS O BRIEN and SUZANNE O BRIEN (the O Briens ) and respectfully submit their Statement of Undisputed Material Facts in Support of their Motion for Summary Judgment to which there is no genuine dispute. I. DESCRIPTION OF PARTIES A. Plaintiff 1. CONSTANTINE P. XINOS is a citizen of the State of Illinois and a resident of DuPage County, Illinois. Compl CONSTANTINE P. XINOS served as the President and Managing Real Estate Broker of the Briarwood Lakes Community Association during the period from on or around June 2009 through the end of August Counter Def. s Resp. to Counter Pls. Req. for Admis. (Ex. A), CONSTANTINE P. XINOS is also an attorney. Compl. 2.

2 B. Defendants 4. DENNIS O BRIEN is a citizen of the State of Illinois and a resident of DuPage County, Illinois. Affidavit of Dennis O Brien ( D. O Brien Aff. ) (Ex. B-1) SUZANNE O BRIEN is a citizen of the State of Illinois and a resident of DuPage County, Illinois. Affidavit of Suzanne O Brien ( S. O Brien Aff. ) (Ex. B-2) 3. II. UNDISPUTED MATERIAL FACTS A. Briarwood Property 6. The O Briens attempted to purchase a residential property in the Briarwood Lakes Community located in Oak Brook, Illinois ( Briarwood Property ). Real Estate Contract between Dennis and Suzanne O Brien and Nationwide REO Brokers, Inc. as Agent for Washington Mutual Bank (July 24, 2009) ( July 24 WaMu Contract ) (Ex. C). 7. The Briarwood Property had been foreclosed upon and was owned by Washington Mutual Bank ( WaMu ). Sheriff s Deed for 156 Briarwood North, Oak Brook, Illinois (Sept. 16, 2008) (Ex. D). 8. As of July 24, 2009, the Briarwood Property had been for sale for nearly a year. Sheriff s Deed (Ex. D). 9. The Briarwood Property falls within the boundaries of the Briarwood Lakes Community. Homeowners Association Assessments Status Letter from Briarwood Lakes Community Association President, Constantine P. Xinos, for 156 Briarwood North, Oak Brook, Illinois (July 29, 2009) (Ex. E). B. The Association s Declaration of Protective Covenants and Bylaws 2

3 10. Being within the Briarwood Lakes Community, the Briarwood Property (and its owners) is a member of the Briarwood Lakes Community Association (the Association ) and subject to its Declaration of Protective Covenants and By-Laws. Briarwood Lakes Community Association Decl. (Ex. F), art. IV, The Association has an assignable right of first refusal in all property in the Briarwood Lakes Community, including the Briarwood Property. Briarwood Lakes Community Association Decl. (Ex. F), art. IV, 12 (B). 12. Upon receipt of a written notice of proposed sale, transfer or conveyance of a lot in Briarwood Lakes, the Association has fifteen (15) days in which to approve or disapprove the proposed sale, transfer or conveyance through invocation of the right of first refusal. Within the fifteen (15) day period, the Association has the right to exercise the right of first refusal to purchase the lot. In the event that the Association neither approves nor disapproves the proposed sale or transfer within fifteen (15) days, the proposed sale or transfer of the lot is deemed approved. Briarwood Lakes Community Association Decl. (Ex. F), art. IV, 12 (B). C. O Briens Real Estate Contract for the Briarwood Property 13. In June 2009, the O Briens submitted a bid to WaMu for the purchase of the Briarwood Property. D. O Brien Aff. (Ex. B-1) 4; S. O Brien Aff. (Ex. B-2) On July 24, 2009, the O Briens entered into a contract with WaMu for the purchase of the Briarwood Property ( July 24 WaMu Contract ). July 24 WaMu Contract (Ex. C). 15. The July 24 WaMu Contract set the closing date for the O Briens purchase of the Briarwood Property for August 31, July 24 WaMu Contract (Ex. 3

4 C) The O Briens had already secured financing from Burr Ridge Bank and Trust in preparation for the purchase and were prepared to close early. Letter from Barry Glancy, Vice President, Burr Ridge Bank and Trust to Whom It May Concern (July 20, 2009) (Ex. G); Check for $30,000 and 00/100 from Dennis P. and Suzanne E. O Brien payable to the order of Wirbicki Law Group (Ex. H). 17. The O Briens and WaMu agreed to close early and moved the closing date to August 11, July 24 WaMu Contract (Ex. C), In order for the O Briens to close on the Briarwood Property, WaMu needed two (2) documents from the Association. Specifically, it needed (1) a waiver of the right of first refusal held by the Association and (2) an assessment status letter (the Waiver and Assessment Letter ). July 24 WaMu Contract (Ex. C), 14. D. Constantine Xinos Real Estate Clients 19. On or around June 2009, Constantine Xinos ( Xinos ) assisted his clients Linda S. Mullen and Richard A. Mullen (the Mullens ) in their endeavor to purchase the Briarwood Property. Counter Def. s Resp. to Counter Pls. Req. for Admis. (Ex. A), On or around June 2009, Xinos submitted a bid to WaMu on behalf of the Mullens to purchase the Briarwood Property. Counter Def. s Resp. to Counter Pls. Req. for Admis. (Ex. A), WaMu rejected Xinos bid on behalf of the Mullens and entered into the July 24 WaMu Contract with the O Briens. July 24 WaMu Contract (Ex. C). 22. On or around July 28, 2009, Xinos learned that WaMu accepted the O Briens bid and executed a valid Real Estate Contract with the O Briens. from 4

5 Constantine Xinos to Rick Mullen (July 28, 2009, 11:44 PM) (Ex. I). E. Xinos Collaboration with the Mullens to Terminate the O Briens Contract 23. On or around July 28, 2009, Xinos began to privately collaborate with the Mullens to terminate the O Briens Contract with WaMu and compel WaMu to enter into a purchase contract with the Mullens. from Xinos to Mullen (July 28, 2009, 11:44 PM) (Ex. I); from Rick Mullen to Constantine Xinos (July 28, 2009, 11:53 PM) (Ex. I); from Rick Mullen to Constantine Xinos (July 30, 2009, 11:30 AM) (Ex. J); from Rick Mullen to Constantine Xinos (Aug. 7, 2009, 4:34 PM) (Ex. K); from Constantine Xinos (August 11, 2009, 5:20 PM) (Ex. L); from Rick Mullen to Constantine Xinos (Aug. 13, 2009, 11:06 PM) (Ex. M); from Rick Mullen to Constantine Xinos (Aug. 13, 2009, 12:39 AM) (Ex. N); from Constantine Xinos to Brian Mulhern (August 14, 2009, 8:20 AM) (Ex. O). 24. Xinos knew that the O Briens could not close on the Briarwood Property without the Waiver and Assessment Letter. from Xinos to Mullen (July 28, 2009, 11:44 PM) (Ex. I). 25. On July 28, 2009, Xinos proposed to the Mullens that he contact WaMu s broker, inform the broker of the requirement of the Waiver and Assessment Letter to close, and refuse to supply them for the O Briens. from Xinos to Mullen (July 28, 2009, 11:44 PM) (Ex. I). 26. On July 28, 2009, the Mullens asked Xinos to execute his proposal to preemptively contact WaMu s broker. from Mullen to Xinos (July 28, 2009, 11:53 PM) (Ex. I). 27. On August 6, 2009, WaMu s attorney ed Xinos the O Briens July 5

6 24 WaMu Contract for the Briarwood Property. from Marsha Albrecht, Attorney, Wirbicki Law Group, to Constantine Xinos (Aug. 6, 2009, 11:51 AM) (Ex. P). 28. On or around August 6, 2009, WaMu s attorney tried to obtain the Waiver and Assessment Letter from Xinos. Undelivered Letter from Ellen Paul, Grove Realtors, to the Briarwood Board and concerned residents (Aug. 12, 2009) (Ex. Q); Letter from Suzanne and Dennis O Brien to Board of Directors and Residents of Briarwood Lakes (Aug. 13, 2009) (Ex. W). 29. On or around August 6, 2009, Xinos refused to provide the Waiver and Assessment Letter to WaMu s attorneys. Undelivered Letter from Paul to the Briarwood Board (Ex. Q). 30. On or around August 6, 2009, the O Briens learned that Xinos, as President of the Association, refused to provide the Waiver and Assessment Letter necessary for their closing. D. O Brien Aff. (Ex. B-1) 5; S. O Brien Aff. (Ex. B-2) 5; Letter from the O Briens to Board of Directors (Ex. W). 31. On or around August 11, 2009, as a direct result of Xinos refusal to provide the O Briens with the Waiver and Assessment Letter, WaMu cancelled the August 11, 2009 closing date for the O Briens purchase of the Briarwood Property. Undelivered Letter from Paul to the Briarwood Board (Ex. Q). F. Xinos Sale of the Right of First Refusal to the Mullens 32. Prior to any official action by the Association, Xinos began privately discussing with the Mullens the purchase of the right of first refusal. from Mullen to Xinos (July 30, 2009, 11:30 AM) (Ex. J). 33. On or around July 30, 2009, the Mullens agreed to pay $10,000 for the 6

7 Association s right of first refusal for the Briarwood Property. from Mullen to Xinos (July 30, 2009, 11:30 AM) (Ex. J). 34. Between July 30, 2009 and August 7, 2009, Xinos and the Mullens negotiated the terms of the Mullens purchase of the Association s right of first refusal. from Mullen to Xinos (July 30, 2009, 11:30 AM) (Ex. J); from Rick Mullen to Constantine Xinos (Aug. 7, 2009, 7:27 AM) (Ex. R). 35. On or around August 7, 2009, the Mullens retained an attorney to complete the agreement for the purchase of the assignment of the right of first refusal. from Mullen to Xinos (Aug. 7, 2009, 4:34 PM) (Ex. K). 36. On or around August 11, 2009, Xinos assisted the Mullens attorney in preparing the agreement for the purchase of the assignment of the right of first refusal from Xinos to the Mullens. from Xinos (August 11, 2009, 5:20 PM) (Ex. L). 37. On August 12, 2009, the Mullens tendered a check in the amount of $10,000 made out to the Association for the assignment of the right to first refusal. Letter from Brian J. Mulhern, Attorney for Richard Mullen and Linda Mullen, to Constantine Xinos, President, Briarwood Lakes Community Association (Aug. 12, 2009) (Ex. S); Check for Ten Thousand Dollars and 00/100 from Linda Mullen payable to the order of Briarwood Community Association (Aug. 12, 2009) (Ex. T). G. August 12, 2009 Association Meeting 38. Because of Xinos refusal to turn over the Waiver and the Assessment Letter, the O Briens attorney prepared a letter addressed to the Members of the Briarwood Lakes Board of Governors ( Attorney s Letter ). Letter from Charles J. Bellock, Attorney for Dennis and Suzanne O Brien, to Constantine Xinos, Thomas Baryl, 7

8 Kenneth Sullivan, Richard Munaretto, Patricia McGreevy, Kent Ramm, Daniel McKay, Members of the Briarwood Lakes Board of Governors, Briarwood Lakes Community Association (Aug. 12, 2009) ( Letter from Bellock to the Briarwood Lakes Community Association ) (Ex. U). 39. The O Briens attorney prepared this letter to persuade the Members of the Briarwood Lakes Board of Governors to approve the O Briens July 24 WaMu Contract at the Association s August 12, 2009 monthly meeting (the August 12 Meeting ). Letter from Bellock to the Briarwood Lakes Community Association (Ex. U). 40. The Attorney s Letter stated that the O Briens would attend the August 12 Meeting to ask the Association to approve their Contract for the Briarwood Property. Letter from Bellock to the Briarwood Lakes Community Association (Ex. U), at The Attorney s Letter was delivered to each of the Members of the Briarwood Lakes Board of Governors, including Xinos, prior to the August 12 Meeting. Letter from Bellock to the Briarwood Lakes Community Association (Ex. U). 42. Xinos was aware that the O Briens would be asking the Association to approve their July 24 WaMu Contract for the Briarwood Property at the August 12 Meeting because he received their Attorney s Letter prior to the August 12 Meeting. Letter from Bellock to the Briarwood Lakes Community Association (Ex. U). 43. On August 12, 2009, Xinos presided over the August 12 Meeting. Mins. of the August, 2009, Meeting of the Board of Governors of the Briarwood Lakes Community Association, convened on August 12, 2009, Adjourned and Re-Convened on August 18, 2009, Submitted by Richard Munaretto (Aug. 2009) ( Mins. of the August 2009 Meeting ) (Ex. V). 8

9 44. Only four of the six Governors of the Association attended the August 12 Meeting. Mins. of the August 2009 Meeting (Ex. V). 45. The O Briens attended the August 12 Meeting to represent their contractual interests in the Briarwood Property and ensure the Association s approval of their purchase of the Briarwood Property. D. O Brien Aff. (Ex. B-1) 6; S. O Brien Aff. (Ex. B-2) 6; Letter from Bellock to the Briarwood Lakes Community Association (Ex. U), at During the August 12 Meeting, Xinos claimed he did not receive notice of the O Briens July 24 WaMu Contract until August 6, Mins. of the August 2009 Meeting (Ex. V). 47. The statement that Xinos did not obtain notice of the O Briens July 24 WaMu Contract ignored his knowledge of the O Briens Contract obtained as early as July 28, from Xinos to Mullen (July 28, 2009, 11:44 PM) (Ex. I). 48. Had the July 28, 2009 date been used as the date of notice, the fifteen (15) day period for exercising the right of first refusal would have expired on August 12, Briarwood Lakes Community Association Decl. (Ex. F), art. IV, 12 (B). 49. Using the August 6, 2009 date of notice presented by Xinos at the August 12 Meeting, the Association had until August 21, 2009 to disapprove the O Briens July 24 WaMu Contract by exercising the right of first refusal. Briarwood Lakes Community Association Decl. (Ex. F), art. IV, 12 (B). 50. The Minutes for the August 12 Meeting reflect that Xinos proposed that the Association sell the right of first refusal on August 12, Mins. of the August 2009 Meeting (Ex. V). 9

10 51. Xinos proposal to sell the right of first refusal was consistent with and furthered his private plans with the Mullens to sell the right of first refusal to them for $10,000. from Mullen to Xinos (July 30, 2009, 11:30 AM) (Ex. J); from Xinos (August 11, 2009, 5:20 PM) (Ex. L); Letter from Mulhern to Xinos (Ex. S); Check from Mullen payable to the order of the Association (Ex. T). 52. Xinos stated that, although the right had not been exercised in over twenty years, it had been exercised to prevent a sale of property for significantly less than fair market value. Mins. of the August 2009 Meeting (Ex. V); Letter from the O Briens to Board of Directors (Ex. W). 53. The Minutes for the August 12 Meeting reflect that during the August 12 Meeting Xinos proposed that the Association assign the right of first refusal to the highest bidder. Mins. of the August 2009 Meeting (Ex. V). 54. Because two of the Governors were absent, the Association decided to adjourn the August 12 Meeting and re-convene on August 18, 2009, when more Governors could be present. Mins. of the August 2009 Meeting (Ex. V). 55. The purpose of the August 18, 2009 Association Meeting was for the Association s Board of Governors to vote on whether the Association should hold a bidding for the right of first refusal and assign the right to the highest bidder (the August 18 Meeting ). Mins. of the August 2009 Meeting (Ex. V). H. Xinos Plans with Mullens to Terminate O Briens Contract 56. Xinos and the Mullens privately planned to use the August 18 Meeting to stall the O Briens and their attorney. from Mullen to Xinos (Aug. 13, 2009, 11:06 PM) (Ex. M); from Mullen to Xinos (Aug. 13, 2009, 12:39 AM) (Ex. N). 10

11 57. Between August 12, 2009 and August 18, 2009, Xinos and the Mullens privately planned to have WaMu s attorney cancel the O Briens Contract. from Mullen to Xinos (Aug. 13, 2009, 11:06 PM) (Ex. M); from Mullen to Xinos (Aug. 13, 2009, 12:39 AM) (Ex. N). 58. Between August 12, 2009 and August 18, 2009, Xinos and the Mullens privately planned to offer WaMu incentive(s) to cancel the O Briens Contract. from Mullen to Xinos (Aug. 13, 2009, 11:06 PM) (Ex. M); from Mullen to Xinos (Aug. 13, 2009, 12:39 AM) (Ex. N). 59. Between August 12, 2009 and August 18, 2009, Xinos and Mullens attorney privately planned for the Mullens to submit a purchase contract to WaMu s broker. from Xinos to Mulhern (August 14, 2009, 8:20 AM) (Ex. O). 60. Between August 12, 2009 and August 18, 2009, Xinos and the Mullens attorney privately planned for the Association to assign the right of refusal to the Mullens on or around August 14, 2009, before the August 18 Meeting. from Xinos to Mulhern (August 14, 2009, 8:20 AM) (Ex. O). 61. Between August 12, 2009 and August 18, 2009, Xinos and the Mullens attorney privately planned to convince WaMu to terminate the O Briens Contract in exchange for the return of Xinos commission (amounting to approximately $10,000) and the opportunity to sell immediately to the Mullens. from Xinos to Mulhern (August 14, 2009, 8:20 AM) (Ex. O). 62. Between August 12, 2009 and August 18, 2009, the O Briens prepared for the August 18 Meeting. Letter from the O Briens to Board of Directors (Ex. W); D. O Brien Aff. (Ex. B-1) 7; S. O Brien Aff. (Ex. B-2) 7. 11

12 I. O Briens Letter to the Board of Governors and Residents of Briarwood Lakes 63. On or around August 13, 2009, the O Briens drafted a letter addressed to the Board of Directors and Residents of Briarwood Lakes (the August 13 Letter ). Letter from the O Briens to Board of Directors (August 13, 2009) (Ex. W). 64. The O Briens drafted the August 13 Letter with the intention to protect their July 24 WaMu Contract with WaMu. Letter from the O Briens to Board of Directors (Ex. W); D. O Brien Aff. (Ex. B-1) 8; S. O Brien Aff. (Ex. B-2) The O Briens drafted the August 13 Letter with the intention to convince the Association that the Board of Governors should refuse to follow the proposals made by Xinos at the August 12 Meeting to sell the right of first refusal. Letter from the O Briens to Board of Directors (Ex. W); D. O Brien Aff. (Ex. B-1) 9; S. O Brien Aff. (Ex. B-2) The O Briens did not intend to injure Xinos with the August 13 Letter. D. O Brien Aff. (Ex. B-1) 10; S. O Brien Aff. (Ex. B-2) The August 13 Letter stated The recalcitrant actions of this president [Xinos] has cost us many added thousands of dollars in legal expenses. Letter from the O Briens to Board of Directors (August 13, 2009) (Ex. W). 68. Xinos refused to provide the Waiver and Assessment Letter necessary for the O Briens closing because he wanted the Mullens to obtain the Briarwood Property. Undelivered Letter from Paul to the Briarwood Board (Ex. Q); from Xinos to Mullen (July 28, 2009, 11:44 PM) (Ex. I); from Rick Mullen to Constantine Xinos (July 28, 2009, 11:53 PM) (Ex. I). 69. By refusing to provide the Waiver and Assessment Letter to WaMu for the 12

13 O Briens July 24 WaMu Contract, Xinos did not cooperate with the O Briens purchase of the Briarwood Property. Undelivered Letter from Paul to the Briarwood Board (Ex. Q). 70. As a result of Xinos conduct, WaMu canceled the O Briens August 11, 2009 closing date. Undelivered Letter from Paul to the Briarwood Board (Ex. Q). 71. The O Briens stated that Xinos refusal to cooperate cost us many added thousands of dollars in legal expenses in the August 13 Letter because the O Briens incurred thousands of dollars in additional legal expenses due solely to Xinos refusal to provide the Waiver and Assessment Letter. D. O Brien Aff. (Ex. B-1) 11; S. O Brien Aff. (Ex. B-2) As a consequence of Xinos actions, the O Briens incurred thousands of dollars in additional legal expenses. D. O Brien Aff. (Ex. B-1) 12; S. O Brien Aff. (Ex. B-2) The O Briens attorney drafted a letter addressed to the Members of the Briarwood Lakes Board of Governors in an effort to persuade them to approve the O Briens July 24 WaMu Contract. Letter from Bellock to the Briarwood Lakes Community Association (Ex. U). 74. The O Briens incurred additional legal expenses when their attorney drafted the Attorney s Letter. D. O Brien Aff. (Ex. B-1) 13; S. O Brien Aff. (Ex. B-2) In an effort to convince the Association s Board of Governors to approve of the O Briens July 24 WaMu Contract, the O Briens attorney attended the Association s August 12 Meeting. Letter from Bellock to the Briarwood Lakes 13

14 Community Association (Ex. U); Mins. of the August 2009 Meeting (Ex. V). 76. The O Briens incurred additional legal expenses when their attorney attended the August 12 Meeting. D. O Brien Aff. (Ex. B-1) 14; S. O Brien Aff. (Ex. B-2) The time expended in drafting the Attorney s Letter and attending the August 12 Meeting would not have been necessary had Xinos and/or the Association provided the O Briens the Waiver and Assessment Letter. D. O Brien Aff. (Ex. B-1) 15; S. O Brien Aff. (Ex. B-2) The August 13 Letter stated [Xinos ] behavior is unethical, and immoral. Letter from the O Briens to Board of Directors (August 13, 2009) (Ex. W). 79. In so stating, the O Briens referred to Xinos behavior with respect to the Briarwood Property. Letter from the O Briens to Board of Directors (August 13, 2009) (Ex. W). 80. The August 13 Letter stated Please do not let Connie [Xinos] convince you that he has the right to basically steal this contract from us. The Covenants clearly state that the only reason to disapprove a contract is to maintain a ratio of 85% of the community s residents who are over 55 years old. As was well stated last evening by some of your neighbors, Connie does not have the right to choose to abide by the Covenants only when it it s profitable for him to do so! Letter from the O Briens to Board of Directors (August 13, 2009) (Ex. W). 81. The O Briens Attorney s Letter stated that the only permissible reason to disapprove a sale would be the preservation of the community s ratio [of 85%] of individuals who are over the age of 55, as stated in Paragraph 12 (A). Letter from 14

15 Bellock to the Briarwood Lakes Community Association (August 12, 2009) (Ex. U). 82. In the August 13 Letter, the O Briens repeated their attorney s interpretation of the Association s Declarations of Protective Covenants and By-Laws from the Attorney s Letter. Letter from the O Briens to Board of Directors (Ex. W); Letter from Bellock to the Briarwood Lakes Community Association (Ex. U). 83. As President of the Association, Xinos must follow the Association s Declarations of Protective Covenants and By-Laws. Counter Def. s Resp. to Counter Pls. Req. for Admis. (Ex. A), 1; Briarwood Lakes Community Association By-Laws (May 9, 2001) (Ex. X), art. VI, 5; Briarwood Lakes Community Association Decl. (Ex. F), art. II. 84. The August 13 Letter stated Allowing Connie to interfere and kill this contract by the arbitrary exercise of the right of first refusal, because he lost the bidding sets a dangerous precedent! Letter from the O Briens to Board of Directors (August 13, 2009) (Ex. W). 85. At the time the O Briens drafted the August 13 Letter, they believed each statement contained therein to be true. D. O Brien Aff. (Ex. B-1) 16; S. O Brien Aff. (Ex. B-2) The O Briens still continue to believe each statement contained in the August 13 Letter to be true. D. O Brien Aff. (Ex. B-1) 17; S. O Brien Aff. (Ex. B-2) On or around August 13, 2009, the O Briens gave copies of the August 13 Letter to Mike Stewart. D. O Brien Aff. (Ex. B-1) 18; S. O Brien Aff. (Ex. B-2) Mike Stewart arranged to have copies of the August 13 Letter distributed 15

16 to the Board of Governors and residents of Briarwood Lakes. D. O Brien Aff. (Ex. B-1) 20; S. O Brien Aff. (Ex. B-2) 20. J. August 18, 2009 Association Meeting 89. The Association s Board of Governors re-convened on August 18, Mins. of the August 2009 Meeting (Ex. V). 90. The Minutes of the August 18 Meeting reflect that during the August 18 Meeting Xinos again proposed that the Association assign the right of first refusal to the highest bidder. Mins. of the August 2009 Meeting (Ex. V). 91. During the August 18 Meeting, the Board of Governors voted 4 to 2 in favor of assigning the right of first refusal to the highest bidder. Mins. of the August 2009 Meeting (Ex. V). 92. During the August 18 Meeting, the Mullens submitted a $10,000 bid for assignment of the right of first refusal. Mins. of the August 2009 Meeting (Ex. V). 93. During the August 18 Meeting, the Mullens were the only, and thereby the highest, bidder for the assignment of the right of first refusal. Mins. of the August 2009 Meeting (Ex. V). 94. During the August 18 Meeting, the Board of Governors accepted the Mullens bid for the assignment of the right of first refusal. Mins. of the August 2009 Meeting (Ex. V). 95. On August 18, 2009, Xinos, as President and Managing Real Estate Broker of the Briarwood Lakes Community Association, assigned the right of first refusal for the Briarwood Property to the Mullens. Assignment by Constantine Xinos to Richard A. Mullen and Linda S. Mullen (August 18, 2009) (Ex. Y). 16

17 K. The Consequences of Xinos Actions 96. As a consequence of Xinos secret collaboration with the Mullens to subvert the O Briens July 24 WaMu Contract and assign the right of the first refusal to the Mullens, WaMu cancelled the O Briens July 24 WaMu Contract. Assignment by Xinos to the Mullens (Ex. Y); Letter from Tom Dalicandro, Wirbicki Law Group to David Rosenberg (August 19, 2009) (Ex. Z); see also from Constantine Xinos to Marge Pawlak, Broker for WaMu Re/Max Enterprises (Aug. 21, :56 PM) (Ex. AA); for Constantine Xinos to Brian Mulhern and Rick Mullen (Aug. 21, 2009, 10:38 AM) (Ex. BB). 97. As a result of the Mullens purchase of the Briarwood Property, Xinos and the Association earned a commission of $10,250 for finding the Mullens as a buyer. from Xinos to Pawlak (Aug. 21, :56 PM) (Ex. AA); for Xinos to Mulhern and Mullen (Aug. 21, 2009, 10:38 AM) (Ex. BB). 98. On August 12, 2010, nearly a year later, Xinos filed suit against the O Briens and Mike Stewart for defamation per se for specific statements contained in the O Briens August 13 Letter. Compl. 17

18 Dated: October 14, 2011 Chicago, Illinois Respectfully submitted, DEFENDANTS, DENNIS O BRIEN and SUZANNE O BRIEN By: One of Their Attorneys Charles Lee Mudd, Jr. MUDD LAW OFFICES 3114 W. Irving Park Road, Suite 1W Chicago, Illinois Telephone Facsimile cmudd@muddlawoffices.com ARDC: DuPage County Attorney No

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28 STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS CONSTANTINE P. XINOS, ) ) Plaintiff, ) ) v. ) No L ) SUZANNE O BRIEN, DENNIS ) O BRIEN and MIKE STEWART, ) ) The Hon. Dorothy F. French Defendants. ) AFFIDAVIT OF DENNIS O BRIEN I, Dennis O Brien, being duly sworn, do hereby declare, testify, and state as follows: 1. I am of sound mind and over the age of eighteen (18) years. 2. I am one of the defendants in this case. 3. I am a citizen of the State of Illinois and a resident of DuPage County, Illinois. 4. In June 2009, my wife, Suzanne O Brien, and I submitted a bid to Washington Mutual Bank ( WaMu ) for the purchase a foreclosed residential property in the Briarwood Lakes Community located in Oak Brook, Illinois ( Briarwood Property ). 5. On or around August 6, 2009, I learned that that Constantine Xinos ( Xinos ), as President of the Briarwood Lakes Community Association ( Association ), refused to provide the Waiver and Assessment Letter necessary for their closing. 6. My wife and I attended the Association meeting on August 12, 2009 to represent our contractual interest in the Briarwood Property and ensure the Association s approval of our purchase of the Briarwood Property. 7. Between August 12, 2009 and August 18, 2009, my wife and I prepared for the August 18, 2009 Association Meeting.

29 8. My wife and I drafted letter sent to the Association on August 13, 2009 ( August 13 Letter ) with the intention to protect our contract with WaMu. 9. My wife and I drafted August 13 Letter with the intention to convince the Association that the Board of Governors should refuse to follow the proposals made by Xinos at the August 12 Meeting to sell the right of first refusal. 10. My wife and I did not intend to injure Xinos with the August 13 Letter. 11. My wife and I stated that Xinos refusal to cooperate cost us many added thousands of dollars in legal expenses in the August 13 Letter because we incurred thousands of dollars in additional legal expenses due solely to Xinos refusal to provide the Waiver and Assessment Letter. 12. As a consequence of Xinos actions, my wife and I incurred thousands of dollars in additional legal expenses. 13. My wife and I incurred additional legal expenses when our attorney drafted a letter addressed to the Members of the Briarwood Lakes Board of Governors in an effort to persuade them to approve our contract with WaMu. 14. My wife and I incurred additional legal expenses when our attorney attended the August 12 Meeting. 15. Our attorney s time expended in drafting the Attorney s Letter and attending the August 12 Meeting would not have been necessary had Xinos and/or the Association provided us with the Waiver and Assessment Letter. 16. At the time my wife and I drafted the August 13 Letter, we believed each statement contained therein to be true. 2

30 17. My wife and I still continue to believe each statement contained in the August 13 Letter to be true. 18. On or around August 13, 2009, my wife and I gave copies of the August 13 Letter to Mike Stewart. 19. Apart from Mike Stewart, I did not distribute any copies of the August 13 Letter to the Board of Governors and residents of Briarwood Lakes other than Mike Stewart. 20. Mike Stewart arranged to have copies of the August 13 Letter distributed to the Board of Governors and residents of Briarwood Lakes. 21. I understand that the August 13 letter was never distributed to the Board of Governors and residents of Briarwood Lakes. 3

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33 STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS CONSTANTINE P. XINOS, ) ) Plaintiff, ) ) v. ) No L ) SUZANNE O BRIEN, DENNIS ) O BRIEN and MIKE STEWART, ) ) The Hon. Dorothy F. French Defendants. ) AFFIDAVIT OF SUZANNE O BRIEN I, Suzanne O Brien, being duly sworn, do hereby declare, testify, and state as follows: 1. I am of sound mind and over the age of eighteen (18) years. 2. I am one of the defendants in this case. 3. I am a citizen of the State of Illinois and a resident of DuPage County, Illinois. 4. In June 2009, my husband, Dennis O Brien, and I submitted a bid to Washington Mutual Bank ( WaMu ) for the purchase a foreclosed residential property in the Briarwood Lakes Community located in Oak Brook, Illinois ( Briarwood Property ). 5. On or around August 6, 2009, I learned that that Constantine Xinos ( Xinos ), as President of the Briarwood Lakes Community Association ( Association ), refused to provide the Waiver and Assessment Letter necessary for their closing. 6. My husband and I attended the Briarwood Lakes Community Association on August 12, 2009 to represent our contractual interest in the Briarwood Property and ensure the Association s approval of our purchase of the Briarwood Property. 7. Between August 12, 2009 and August 18, 2009, my husband and I prepared for the August 18, 2009 Association Meeting.

34 8. My husband and I drafted letter sent to the Association on August 13, 2009 ( August 13 Letter ) with the intention to protect our contract with WaMu. 9. My husband and I drafted August 13 Letter with the intention to convince the Association that the Board of Governors should refuse to follow the proposals made by Xinos at the August 12 Meeting to sell the right of first refusal. 10. My husband and I did not intend to injure Xinos with the August 13 Letter. 11. My husband and I stated that Xinos refusal to cooperate cost us many added thousands of dollars in legal expenses in the August 13 Letter because we incurred thousands of dollars in additional legal expenses due solely to Xinos refusal to provide the Waiver and Assessment Letter. 12. As a consequence of Xinos actions, my husband and I incurred thousands of dollars in additional legal expenses. 13. My husband and I incurred additional legal expenses when our attorney drafted a letter addressed to the Members of the Briarwood Lakes Board of Governors in an effort to persuade them to approve our contract with WaMu. 14. My husband and I incurred additional legal expenses when our attorney attended the August 12 Meeting. 15. Our attorney s time expended in drafting the Attorney s Letter and attending the August 12 Meeting would not have been necessary had Xinos and/or the Association provided us with the Waiver and Assessment Letter. 16. At the time my husband and I drafted the August 13 Letter, we believed each statement contained therein to be true. 2

35 17. My husband and I still continue to believe each statement contained in the August 13 Letter to be true. 18. On or around August 13, 2009, my husband and I gave copies of the August 13 Letter to Mike Stewart. 19. Apart from Mike Stewart, I did not distribute any copies of the August 13 Letter to the Board of Governors and residents of Briarwood Lakes other than Mike Stewart. 20. Mike Stewart arranged to have copies of the August 13 Letter distributed to the Board of Governors and residents of Briarwood Lakes. 21. I understand that the August 13 letter was never distributed to the Board of Governors and residents of Briarwood Lakes. 3

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