Facts

In this matter, defendants Citrus Edge Realty, Fairhaven Estates III, LP and CWD Mortgage, all owned by members of the Garvey family (some of whom were named defendants), purported to sell real property from Fairhaven to plaintiffs with financing arranged by CWD Mortgage. The initial escrow closing date was unilaterally changed by Fairhaven without plaintiffs' prior knowledge or consent. Shortly before the early closing, plaintiffs learned that a basketball court was being erected less than 10 feet from the property they were purchasing. One of the plaintiffs is a disabled veteran suffering from Hyperacusis, a disorder involving increased sensitivity to noise. When plaintiffs sought to cancel the transaction they were informed they would have to pay over $40,000 in damages.

Plaintiffs claimed that but for the artificial damages they would not have closed the transaction and that the damages were, in fact, based on an unconscionable contract with a third party, which contract was "arranged" by seller Fairhaven. Per the terms of the third party contract and based on actual testimony, the contract was deemed effective prior to the date it was executed, a fact that had never been disclosed to Plaintiffs. Plaintiffs also contended that Carol Asquith was their actual or ostensible agent based upon a relationship of trust that had developed between them.

PLAINTIFF'S CONTENTIONS:
Plaintiffs claimed non-disclosure by seller and seller's broker/agent of the neighbor's intention to build basketball court in their backyard, coercion by seller and seller's broker/agent to purchase property through liquidated damages provision contained in purchase agreement, and misrepresentation of loan terms.

Plaintiffs alleged they expected to receive a loan, which required interest-only payments for 30 years. Instead, they received a loan, which allowed them to pay interest-only payments for 10 years, and amortized payments for the remaining 20 years.

Plaintiffs claimed personal injuries via exacerbation of current physical ailments and lost earnings in addition to mortgage amount in spite of vacating property via foreclosure.

Plaintiffs claimed fraud by concealment and intentional misrepresentation, breach of fiduciary duty and violation of Business & Professions Code section 17200.

DEFENDANT'S CONTENTIONS:
Defendants claimed that defendant Carol Asquith and Citrus Edge Realty Inc. were not plaintiff's fiduciaries. Plaintiffs were clearly advised by escrow and CWD Mortgage of the loan terms.

Settlement Discussions

Plaintiffs did not demand mediation. Defendants CWD Mortgage Inc. dba Citrus Edge Realty, Kathleen Garvey and Carol Asquith made a CCP 998 offer of $25,000.

Damages

Plaintiffs claimed in excess of $1.2 million.

Result

Defendants' motion for nonsuit was granted. Dismissal with prejudice by the court with recoverable costs and fees via CCP 998.

Other Information

CWD defendants' motion for award of costs of proof resulting from denials of requests for admission was granted. CWD defendants awarded $61,940. CWD defendants' memorandum of costs was not opposed. Memorandum of costs seeks $23,009. Plaintiffs filed an appeal. FILING DATE: May 27, 2009.