The first disappointment came on the day they moved in. Bob Fogal, weary from unpacking, trudged upstairs to relax in his new whirlpool bath. When he got out, he pulled the plug and "all 100 gallons of that water came down through the dining room ceiling, into the light fixtures, down the columns, onto my dining room table and Oriental rugs," Jordan recalls. "And I just started screaming."
The Fogals tried to tell themselves it was just an oversightone unconnected drainbut then more oversights appeared: a portion of yard that turned into a swamp; a section of house that visibly sagged; heating that wasn't warm enough; a cooling system not cold enough. And always, and most seriously, water coming in from somewhere. Sitting at breakfast, thanks to a window above them that had been installed upside down, the couple sometimes felt the falling rain.
It was all too much for Bob to think about. He continued going to work while Jordan stayed home, appreciating the "Attention to Detail Difference." Eventually, Bob too would join Jordan before the Houston City Council to lament the mold and the rotting and how, according to the meeting's minutes, "the builder knew of the problems and failed to disclose it." Jordan had looked forward to a leisurely life taking care of her new house and writing memoirs, but when the builders would not fix the structure, and when no authority would compel them to do it, Jordan experienced, for the first time, an in-justice she could not endure. On a street corner near her house, the 59-year-old Republican began picketing for all she was worth.
"I mean, it's a rat's nest," she says of the house, of Texas law, of the System,"and here I am, one grandmother with no money and no help."
IT WAS A MISMATCH from the startone mad-as-hell housewife against the entire construction-industrial complex. Home-building is a chief indicator of the economy's health, and politicians are rarely inclined to slow it down with regulation or oversight. Reinforcing that impulse is an extremely well-funded, organized builder lobby whose focus, according to Janet Ahmad of the watchdog group HomeOwners for Better Building (HOBB), has never been "on how to build a house correctly, but on how to limit regulations and liability."
As a result, contractors throughout the country have been able to feed the U.S. housing boom with little fear of being held accountable for the quality of their work. The faster a house is constructed, the greater the profit, and thus many homes are now built as though on an assembly line, often in as little as 90 days. Contractors "build them spacious and grandiose and give them the appearance of quality," says Ahmad, whose group tracks both federal and state regulations. Behind the facade, though, are often shoddy workmanship and cheap materials, such as "wood" trim that is actually recycled paper.
No governmental body tallies how many of these new homes prove seriously defective, but Consumer Reports, in a broad investigation of construction defects in 2004, estimated that some 150,000 homeowners a year find "they have more consumer protections for a fickle $20 toaster" than for the biggest investment of their lives.
And nowhere, homeowners' groups say, do negligent builders get a better deal than in the Fogals' home state. "If you want to be a successful fly-by-night contractor," says HOBB's Ahmad, "you come to Texas. They're pillars of the community here, on the who's who list. They don't even have to sneak away in the night. They operate in the full light of day."
In one of the country's most business-friendly states, construction is one of the most influential businesses. The largest individual contributor to Texas politicians is Bob Perrya builder who gained national fame during last year's presidential campaign when he funded the Swift Boat Veterans for Truth. The organization dispensing the most political money in the state, Texans for Lawsuit Reform, is also headed by a builder, and builders have been the main beneficiaries of a decade's worth of Texas tort reform lawslaws that, for homeowners, amount to little more than a maze of obstacles designed to obstruct the filing of lawsuits.
Most builders in Texas (and elsewhere) require homebuyers to agree to settle disputes out of court, in binding arbitration. Should a consumer, by some miracle, make it past that clause, the legislature recently passed a law that abolishes standards that a home display "workmanlike construction," confines damage awards to the cost of repairs, and establishes a commissiondominated by buildersconsumers must go to before filing a claim either in court or in arbitration. This law was in large part written by the chairman of a Texas Association of Builders task force, John Krugh, whom the governor later named to sit on that very commission.
A Texas homebuyer's only real hope for recovery, then, is to raise hell. Builders know that most people don't have the stomach for that, says Ahmad, the consumer advocate. But with Jordan Fogal, she adds, "I think they bit off more than they can chew. That one woman has created an army's worth of ruckus."
BACK IN ALABAMA, where Jordan had lived until 1994 and raised her three children, she was "den mother, room mother, cookie bakerthe whole nine yards." Once, she circulated a petition to get her dirt road paved, but otherwise she had lived for 59 years without public protest of any kind.
Now, in the two-bedroom apartment the Fogals fled to when mold started showing up in their leaky house, she complains that she hardly has time to do her hair, let alone get to the tanning bed. The kitchen table is an unruly heap of evidence as Jordan, maniacally smoking, tells her sprawling story. Along the way, she mentions Grandmother, who taught her there were no gray areas"it was right, or it was wrong"and also Granddaddy, who believed that "if it was bad, you shot it." And, over and over again, she repeats her own maxim: "I don't like people messing with my home."
Her home is one of 44 jammed onto two acres just off Houston's Waugh Drive and surrounded by a wall. The wall, the gates, the closed garage doors give the place an isolated feeling, which the builder marketed as security. But it was never perfectly clear which company built Hyde Park Crescent.
The builders operated under many names, and it seems the Fogals' house was built by two companies, Tremont Homes and Stature Construction, both of which were directed by one Jorge Casimiro and his business partner, Thomas Thibodeau. With some $28 million in revenue, Stature was listed by Hispanic Business magazine in 2001 as one of the country's largest Hispanic-owned companies. Casimiro himself has been chairman of the Houston Hispanic Chamber of Commerce's political action committee and the recipient of several business honors, which company publicity touts as proof of "his integrity and commitment to providing outstanding service."
For Jordan Fogal, that service felt more like a kind of torture. There were times when she was so "flusterated" by her builder's emissaries, she wanted to "just grab them and choke them till their eyeballs pop out." The company completed some repairs, such as the drain in the whirlpool and the upside-down window, but more often the routine went like this: Jordan would report a problem, Stature would decline to help, and she would decline to accept that they would not help: "How dare you," she'd write in one of many, many letters. Eventually, an appointment would be made for an inspection, but then no one would show. Jordan would call and be told the inspector was coming the next day at 8 a.m., and then, at the appointed time, she would be told that they were coming at 2 p.m. Again she would wait, and they wouldn't come but would later insist they had and that no one had been home. When the builders' inspector finally did appear, Jordan would be told that the water spots were just paint curing, that there was no mildew, that the rust-streaked cracks in the stucco were just settlement cracks. "They would talk to me as if I were an illiterate, inferior, stupid woman who didn't understand constructionand I didn't. But I knew water was running out of my house, and the Scarecrow could have known that without his brain."
The Fogals hired their own inspectors, who found serious roofing problems and "widespread and growing accumulation of moisture" in walls and ceilings; when one inspector drilled a hole in the wall, she recalls, water came draining out, and rotten wood was on the bit. An estimate for the full repair of the Fogals' house would be put at $199,900. In April 2004, Casimiro offered repairs, which, nine months later, Thibodeau told the Houston Chronicle were worth between $2,000 and $5,000.
With her homebuyers' contract forbidding her from suing, Jordan filed a complaint against Tremont with the Better Business Bureau. The BBB said Tremont Homes was "doing business as" Stature but that Stature was no longer in business, according to Jordan, so the bureau couldn't help. She filed claims under her homebuyers' warranty (which turned her down for not following proper procedure), under her homeowners' insurance (which rejected her because its inspector found the house "deviates from the industry standards"), and under Stature's liability insurance (which said that it would cover property damaged by "these construction defects," but not the defects themselves). Jordan went to the district attorney's office, the state attorney general, the Texas Department of Insurancenothing.
"No one understood what you were talking about, or they were just no help," Jordan says. "I had no one to talk to in the beginning, not even my husband."
At night, Bob would tell her she was simply exaggerating; it couldn't be as bad as all that. He's "very patriotic," she explains, and he couldn't accept that "in America, land of the free, home of the brave, no one would help, especially when you didn't do anything wrong." Jordan tried to tell him that "Texas is just like a communist state: You expect to have somewhere to go with your problem, but there's nowhere to go."
She went again to her builder. She carried with her the report of yet another inspection, and perhaps it was clear that she just might convince a jury. Thibodeau, in any case, said he would fix her house. But a week passed. And now mold was taking over, spotting the carpet, outlining pictures on the wall. Jordan read on the Internet that certain molds could cause brain abscesses and inhibit cell division, that her home was now not merely uncomfortable but, according to her doctor, unsafe.
In this frame of mind, she wrote Thibodeau, "Do we have to die?" He didn't answer.
At about that time, in September, HOBB's Ahmad connected Jordan with another Houston homeowner, Carla Bistrick, whose experience was so similar to hers, Bistrick finally asked Jordan where she lived. "Oh my God!" Bistrick exclaimed, for she, too, had been the owner of a house in Hyde Park Crescent. It, too, had filled with water. Only after Bistrick began giving tours to prospective buyers in the neighborhood had she convinced the builderjust before the Fogals arrivedto buy back her house.
Bistrick had one more bit of news for Jordan: In making her case, she had photographed homes in the neighborhood, including unit No. 34, which appeared to have mold and water damage and, though brand new, was already under repair. The Fogals' house, their beautiful house, had been infested even before she bought it.
Jordan immediately dialed Thibodeau. She was crying as she demanded he buy back her house, too. "You knew what you were doing when you sold us this house."
Thibodeau replied that buying houses was really not his particular game, and then he did what probably no one should ever do to Jordan Fogal. He hung up.
LAWYERS FOR CASIMIRO and Thibodeau were reluctant to speak to Mother Jones. "The commitment to social justice," explained Thibodeau's attorney Charles Turet, "is something that gives lawyers heartburnnot that we don't like social justice," he was quick to add. "But there's a theme there that's"he paused again"unfavorable to corporate clients."
Casimiro would not return phone calls; Thibodeau did, but was at first disinclined to speak. "Put it this way," he said, "I'm a builder, and I don't expect to be treated fairly by any media, because it's always poor consumer.'"
There were, in fact, a number of Thibodeau customers who considered themselves poor consumers. Last year, four of the buyers in the Fogals' 44-home subdivision gathered in a lawsuit, all alleging the builder "did not install flashing at critical locations," with an "enormous amount of resulting damage." Other neighbors found water in their homes but chose to pay for leak repairs themselves, because it didn't seem worth a fight, and Kerri Kirsch's family, who also found rain pouring in, fled in disgust to Arizona after a long legal battle with Casimiro.
Jordan didn't join the lawsuit, but she had no intention of surrendering to Thibodeau. "I wanted to show him," she says, "that no matter what he did to me, I was not going away."
And so, on that September day, about 10 minutes after hanging up on Jordan Fogal, Thibodeau received another call. It was a national consumer radio show, live on the air, wanting to know just what he had done to poor Mrs. Fogal.
That was just the beginning. Having moved to the apartment, taking the $368,564 mortgage with her, Jordan dedicated her life to exposing "the greatest travesty of justice" she had ever seen. "Home Builder Makes Home Buyer Homeless," her message went. And everything that had happened to her, everything she learned, she disseminated to anyone who might listenreporters, the mayor, her state representatives, even the president of the United States. When she found out that a judge, to whose campaign Casimiro had contributed, had appointed Casimiro to three county boards, including the housing authority, she printed up fliers. She spoke at homeowners' rallies and before the Houston City Council. She showed the council pictures of the subdivision, described the mold and rotting materials, and explained how her builder appeared to be not a single company but a dozen.
Perhaps nothing she did had more effect than her regular appearance in front of the builders' new luxury condos, Tremont Tower. In her Chanel sunglasses and pink sweater, Jordan stood with pictures of her rotting house, a basket of lemons, and a sign that read, "Beware! Tremont Homes sold me a lemon!" Watching her on the corner in protest, Bob finally understood "why I hate arguing with that woman."
At first, she experienced a loneliness like she had never known. Neighbors, fretting over their property values, ceased to speak to her. Bob wouldn't join her. Every weekend afternooneven Christmas and New Year's and several times in the rainJordan stood alone on the corner. She was initially afraid of the people she met out theresome black, some gay, some tattooed and piercedbut gradually realized that they were "some of the nicest people."
Middle-aged, Republican homemakers are not normally found protesting in the street, which is why Jordan Fogal made such an effective street protester.
"Lady, I had to stop," people would say. "Somebody must have really pissed you off."
"Oh my God! That's an area we're looking at! Oh my God! And they're not doing anything to help you?"
"I had no idea! I thought when you spent that kind of money..."
"Here," Jordan would say, "take another flier. I've got 10,000 more."
She was on television, in the papers. City Council members told her they would be watching for this builder, come permit time. ("It's terrible she paid a lot of money for a house she can't live in," council member Carol Alvarado says.) Prospective buyers at Tremont Tower looked at the pictures and got back in their cars. The staff at Tremont Tower called the police, she says, tried to have her car towed, and fenced in the area where motorists had pulled over to talk. When word came that she was being dragged into arbitration, Jordan realized she had "finally gotten their attention." Her fight was about to grow much larger.
THE BUILDERS' LAWYERS had filed a claim through the country's oldest and largest arbitration firm, the nonprofit American Arbitration Association. They sought declaratory relief from any complaint about "alleged construction defects"past, present, and futurein Jordan Fogal's home.
Jordan still remembers her pleasant illusions of arbitrationhow much "more civilized and nice" it sounded than just suing someone, "like a mom who sits down with her children and says, Now, this is the way I see it. Now you two go do what's right.'"
What she found instead seemed neither pleasant nor fair. The Arbitration Association informed her that she would be expected to pay half of the arbitrator's fees roughly $1,500 a day for the arbitration itself and $750 for a preliminary study of the problemplus half of the charges to rent the hearing room and hire the stenographer; plus the cost of expert witnesses, if any; plus, if she wanted one, the cost of an attorney. Plus, since the proceeding would conclude all disputes against the builders, if she wished to file a counterclaim seeking reimbursement for the cost of her property, there would be an additional filing fee of $8,500.
The arbitrator would be chosen from a list of lawyers and mediators. His decision would not be required to have any basis in law, could nowhere be appealed, and would likely come with a gag order. Jordan filed for hardship relief, but her builders' lawyer, William S. Chesney III, insisted that she get none. She wrote long, emotional letters to her "solutions manager" at the arbitration firm, who shared them with Chesney and began sending her bills. It was like reasoning with a machine, she says, and in her letters and fliers she let the world know about her outrageabout the "shocking costs" of binding arbitration, the "stacked deck" of the arbitrator, that "henchman for torturing victims [of] the builders."
"MRS. FOGAL HAS BECOME rather high-profile," observed Charles Turet, the lawyer for Thibodeau, when I visited his office. "This is the first time we've encountered anything of this magnitude."
The magnitude was such that Turet's client had found the need to talk after all. Turet said they were certainly not afraid of the facts of the case, "as long as all of the facts get out." Then he added they really couldn't discuss the facts in detail. It was therefore left to Thibodeau, a glaring, goateed man, to explain that he thought Jordan was being quite unfair. "She's gone out and created this frenzy!" he said. "This crusadecalling radio stations, sitting on the corner with lemons." And "if she thinks the way to solve problems is to extort money with lemons, fine! But I'm not going to play that game."
So did Thibodeau stand behind his work? Thibodeau paused. Yes, he answered: He would always ask his customers to do a thorough walk-through, and they wouldn't close the deal if the customer had an issue. "Our goal is not to have to go back into someone's house after closing," he said. Or, as the lawyer Chesney put it, not to "be held hostage to every little thing Mrs. Fogal claims."
"You know," Chesney went on, "it is absolutely amazing how many people out there don't have the problems Mrs. Fogal has."
Told of the lawsuit brought against them by the residents of Hyde Park Crescent two months earlier, Turet said, "That's news to us." Chesney said to me, "You'd better see the letters they wrote to us, because we never got them."
And Thibodeau said he really had to go.
"THOSE LYING SACKS OF...,"said William Ferebee, the lawyer representing the Fogals' neighbors. In his office across town from Turet's, he produced a sheaf of court documents that had been sent by certified mail to the builders' lawyers, as well as the responses, signed by William S. Chesney III.
The case is likely to drag out for a while. Facing lawsuits, builders often drain their companies of assets and start anew under a different name. Thibodeau and Casimiro have both recently started new companies, and Chesney claims Thibodeau's new company isn't liable for work done by the old company.
But neither Thibodeau nor Casimiro can get rid of Jordan Fogal. Whichever business names they travel by, she continues to dog them. Already she has helped to get their companies ejected from the Better Business Bureau. Unable to sue their builders, the Fogals are now being sued for "business disparagement" by a builder with connections to Casimiro and Thibodeau. They face arbitration, foreclosure, bankruptcy"more legal troubles than you can shake a stick at," says Jordan's lawyer. But after what she's been through, Jordan says, "I don't think you can ever walk away."
In her apartment, Jordan Fogal points to an ancient photo and says, "This is what Mr. Thibodeau doesn't know about me." It's a picture of several old menher great-uncles from Alabama. They decided that until the South rose again, they would never shave their beards. "And they were all buried with very long beards."