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Richardson v. Robison

June 5, 2008

ALPHONSO RICHARDSON, SR. AND RUTH A. RICHARDSON, PLAINTIFFS,
v.
CHARLES O. ROBISON, INDIVIDUALLY AND AS TRUSTEE OF THE ROBISON FAMILY TRUST DATED APRIL 5, 2001, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER DENYING PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER

Pending before the Court is Plaintiffs' application for temporary restraining order. (Doc. # 3).

PROCEDURAL BACKGROUND

On May 21, 2008, Plaintiffs Alphonso Richardson Sr. and Ruth A. Richardson filed the Complaint in this matter against Defendants Charles O. Robison, Blanche L. Robison, Richard Cheroske, Eric A. Klein, Robert H. Layton, Alphonso Richardson Jr., Statewide Reconveyance, Inc., and Commonwealth Land Title Company. (Doc. # 1). The Complaint alleges that Defendants conspired to refinance Plaintiffs' home without Plaintiffs' consent in order to "convert the built up equity in Plaintiff's home" at Plaintiff's expense, in violation of the Truth in Lending Act (15 U.S.C. §§ 1601 et seq.), California's Predatory Lending Law (CAL. FIN. CODE §§ 4970 et seq.), and other State statutory and common law. (Doc. # 1 at 5).

On June 3, 2008, Plaintiffs filed an application for temporary restraining order. (Doc. # 3). The application seeks to enjoin Defendants from selling Plaintiff's home at a non-judicial foreclosure sale scheduled for June 5, 2008. On June 4, 2008, Defendants Charles Robison, Blanche Robison, and Richard Cheroske filed an opposition to the application for temporary restraining order. (Doc. # 5).

On January 4, 2008, the parties appeared before the Honorable William Q. Hayes for oral argument on Plaintiff's application for temporary restraining order. See (Doc. # 4).

FACTUAL BACKGROUND

Plaintiffs Alphonso Richardson Sr. and Ruth A. Richardson are married and are joint owners of a residence located at 9589 Paseo Temporada, San Diego, CA 92129. Declaration of Alphonso Richardson, Sr. (Doc. # 3-3), ¶ 2. Plaintiffs have resided at the residence for approximately thirty (30) years during which time Plaintiffs made regular mortgage payments. Alphonso Sr. Decl., ¶ 3. Plaintiff Alphonso Richardson Sr. suffers from chronic diabetes and Plaintiff Ruth A. Richardson is disabled. Alphonso Sr. Decl., ¶ 4.

In late 2006, Plaintiff Alphonso Richardson Sr. was hospitalized for approximately two weeks due to kidney failure. Alphonso Sr. Decl., ¶ 5. Thereafter, and while he recovered from his ailments, Plaintiff Alphonso Richardson Sr. signed a power of attorney, "granting general powers" to his wife, Plaintiff Ruth A. Richardson, and his son, Defendant Alphonso Richardson Jr. Alphonso Sr. Decl., ¶ 5. Sometime later, Defendant Alphonso Richardson Jr. obtained a power of attorney from his mother, Plaintiff Ruth A. Richardson. Alphonso Sr. Decl., ¶ 5.

On August 17, 2007, Defendant Alphonso Richardson Jr. used the powers of attorney he obtained from his parents to refinance Plaintiffs' home against Plaintiffs' will and without Plaintiffs' consent or knowledge. Alphonso Sr. Decl., ¶ 6. In refinancing the home, Defendant Alphonso Richardson Jr. worked with Defendants Eric A. Klein (real estate broker), Robert Layton (real estate salesperson), and the Robison Family Trust (money lender). Alphonso Sr. Decl., ¶ 6. Plaintiffs did not learn that Defendants had refinanced Plaintiffs' home until approximately one week after it occurred, at which time (1) Defendant Commonwealth informed Plaintiff that "the deal was done and it was too late to rescind it," and (2) Defendant Alphonso Richardson Jr. had left town with approximately $75,000. Alphonso Sr. Decl., ¶ 7; (Doc. # 3 at 2).

Before agreeing to refinance Plaintiffs' home, Defendant Charles O. Robison reviewed Plaintiffs' credit and income reports. Declaration of Charles O. Robison, ¶ 3. "The Richardsons' monthly income was reported to be $7,155.00," earned from "retirement and disability." Robison Decl., ¶ 3. Accordingly to Defendant Charles O. Robison, Plaintiffs' income "appeared . . . to be more than adequate for the Richardsons to meet their monthly needs and monthly loan payments." Robison Decl., ¶ 3. Defendant Charles O. Robison reviewed the power of attorney obtained by Defendant Alphonso Richardson Jr. with respect to his Plaintiff parents, and relied upon the power of attorney in making the loan to Plaintiffs. Robison Decl., ¶¶ 4-5.

Plaintiffs did not learn the terms and contents of the refinancing agreement until Defendants requested payment sometime after the first payment was due. Alphonso Sr. Decl., ¶ 9. Under the terms of the refinancing agreement, Plaintiffs were obligated to pay $2,808.25 per month, which was "approximately $700.00 more a month" than Plaintiffs paid before the refinancing. Alphonso Sr. Decl., ¶ 9. In addition, Plaintiffs were obligated to make a balloon payment of $300,029.28 after 60 months. Alphonso Sr. Decl., ¶ 9. As part of the refinancing agreement, proceeds of the loan paid off Plaintiffs' two prior mortgages, in addition to a tax lien imposed by the United States in the amount of $86,974.00. (Doc. # 3, Ex. 1).

Plaintiffs "began to have difficulty making the monthly payment from the onset." Alphonso Sr. Decl., ¶ 11. On or about February 5, 2008, Defendant Statewide Reconveyance, Inc. served Plaintiff Alphonso Richardson Sr. with a "Notice of Default and Election to Sell Under the Deed of Trust." Alphonso Sr. Decl., ¶ 12. In late April, 2008, Plaintiffs' counsel sent Defendants a "Notice of Rescission" with respect to the refinancing agreement "based on the fact that [Plaintiffs] never received the legally-required notices." Alphonso Sr. Decl., ¶ 14. On May 8, 2008, attorney for Defendants Charles O. Robison, Blanche L. Robison, and Richard Cheroske informed Plaintiffs' attorney that there were no grounds for rescission of the refinancing agreement. Opp. to TRO, Ex. C.

On May 8, 2008, Defendants issued a "Notice of Trustee's Sale Under Deed of Trust" informing Plaintiffs that Plaintiffs' home would be sold on June 5, 2008, at 10:00 A.M. (Doc. # 3, Ex. 6). On May 15, 2008, Defendant Statewide, as agent for the Robison Defendants, "posted and affixed" a notice of sale to Plaintiffs' home. Alphonso Sr. Decl., ...


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