Myra M Ritchie v. Community Lending Corporation et al, No. 2:2009cv02484 - Document 29 (C.D. Cal. 2009)
Court Description: ORDER Granting Motion to Expunge Lis Pendens 9 by Judge Dean D. Pregerson. For the aforementioned reasons, the Motion to Expunge Lis Pendens is GRANTED. Moreover, because the Court finds that Plaintiff did not act with substantial justification in the filing of Lis Pendens nor did she allege a valid real property claim, the Court hereby awards Quality the amount of $1,250 for which Plaintiff Myra M. Ritchie and her counsel, James Curtis are jointly and severally liable. (sch)
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Myra M Ritchie v. Community Lending Corporation et al Doc. 29 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MYRA M. RITCHIE, 12 13 14 15 16 Plaintiff, v. COMMUNITY LENDING CORPORATION, FIRST AMERICAN TITLE COMPANY, QUALITY LOAN SERVICE CORPORATION, and DOES 1 through 50, 17 18 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-02484 DDP (JWJx) ORDER GRANTING MOTION TO EXPUNGE LIS PENDENS [Motion filed on May 13, 2009] 19 20 This matter comes before the Court on Defendant Quality Loan 21 Service Corporation’s Motion to Expunge Lis Pendens. 22 Myra M. Ritchie, who entered into an Adjustable Rate loan agreement 23 brings this suit against Community Lending Incorporated1, First 24 American Title Company, Quality Loan Service Corporation, and Does 25 1-50 for violations of law related to disclosures about the loan. 26 Specifically, the Complaint seeks to allege violations of 27 California’s Predatory Lending Act, California Financial Code § Plaintiff 28 1 In the Complaint, Defendant Community Lending Incorporated is incorrectly sued under the name Community Corporation. Dockets.Justia.com 1 4970 et seq.; the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; 2 the Home Ownership and Equity Protection Act, 15 U.S.C. § 1602 et 3 seq.; and the Federal Trade Commission Act, 15 U.S.C. § 45 et seq. 4 After reviewing the materials submitted by the parties and 5 considering the argument therein, the Court grants the Motion to 6 Expunge Lis Pendens. 7 I. 8 9 BACKGROUND On September 28, 2005, Plaintiff Myra M. Ritchie (“Plaintiff”) borrowed $359,650 under a promissory note to purchase a home 10 located at 1400 Yale Place, Santa Maria, California 93458 (“Subject 11 Property”). 12 Trust (“Deed”) in favor of Defendant Community Lending 13 Incorporated2 (“Community”) to secure the loan against the Subject 14 Property. (Mot. to Dismiss 2.) Plaintiff executed a Deed of (Mot. to Dismiss 2.) 15 On September 30, 2008, Quality Loan Service Corporation 16 (“Quality”), as agent for the beneficiary of the Deed, commenced a 17 non-judicial foreclosure against the Subject Property by recording 18 and serving a Notice of Default and Election to Sell Under the 19 Deed. 20 as of September 26, 2008, the accrued arrears on the Subject 21 Property loan totaled $11,148.12. 22 December 31, 2008, Quality issued a Notice of Trustee’s Sale 23 (“Notice”) of the Subject Property. 24 Notice of Trustee’s Sale was recorded on January 2, 2009. 25 Dismiss 3.) (Mot. to Dismiss 2.) The Notice of Default provided that, (Mot. to Dismiss 2.) On (Mot. to Dismiss 3.) The (Mot. to 26 27 2 28 In the Complaint, Defendant Community Lending Incorporated is incorrectly sued under the name Community Corporation. 2 1 On January 30, 2009, Plaintiff filed the case at bar against 2 Defendants Community, First American Title Company (“First 3 American”), and Quality (Collectively, “Defendants”), alleging the 4 following seven (7) causes of action: 5 1. Declaratory Relief, statutory rescission and damages 6 based on the allegations that the contract was in English 7 and not Spanish, and that the true interest rate, loan 8 repayment terms, and costs and fees for the loan were not 9 properly disclosed. 10 2. Set Aside of the Notice of Trustee’s Sale and Notice of 11 Default based on the allegations that Plaintiff was not 12 properly served a Notice of Default and that Defendants 13 were required to be in actual possession of the original 14 Promissory Note and Deeds of Trust. 15 3. Cancellation of Instruments based upon the allegation 16 that the Notice of Trustee’s Sale and Notice of Default 17 are voidable because of statutory violations. 18 4. 19 20 Quiet Title to Real Property based on the allegation that Plaintiff is the fee title owner of the subject property. 5. Accounting based on the allegation that Plaintiff is 21 entitled to a detailed accounting calculation and summary 22 of the payoff balance. 23 6. Injunctive Relief based on the allegation that Defendants 24 are threatening to deprive Plaintiff of her title and 25 interest in real property. 26 7. Damages based on allegations of statutory violations. 27 (Compl. ¶¶ 1-45.) 28 bar to this Court. On April 9, 2009, Quality removed the case at (Mot. to Dismiss 3.) 3 On May 12, 2009, 1 Defendant Quality filed a Motion to Dismiss3 pursuant to Federal 2 Rule of Civil Procedure 12(b)(6). 3 a Lis Pendens at the Santa Barbara County Recorder’s Office 4 [instrument number 2009-0004978] on January 30, 2009. 5 Judicial Notice, Ex. E at 1-2.) 6 filed a Motion to Withdraw Lis Pendens and Award of Costs and 7 Attorneys’ Fees. 8 to Expunge Lis Pendens. 9 I. 10 (Docket 9.) (Docket 6.) Plaintiff recorded (Request for On May 13, 2009, Defendant Quality Plaintiff has not opposed the Motion DISCUSSION California Code of Civil Procedure Section 405 governs the 11 recording of Lis Pendens. 12 property claim may record a notice of pendency of action in which 13 that real property claim is alleged.” 14 (2009). 15 lawsuit has been filed which may, if that person prevails, affect 16 title to or possession of the real property described in the 17 notice.” 18 1069 (1993). 19 for lengthy durations, because the recording of Lis Pendens, unless 20 it is expunged, lasts until the resolution of the pending action. 21 “A party to an action who asserts a real Cal. Civ. Proc. Code 405.20 The purpose of Lis Pendens is to “give notice that a Fed. Deposit Ins. Corp. v. Charlton, 17 Cal.App.4th 1066, Lis Pendens clouds real property title, oftentimes “The Lis Pendens procedure [is] susceptible to serious abuse, 22 providing unscrupulous Plaintiffs with a powerful lever to force 23 the settlement of groundless or malicious suits.” 24 Superior Court, 29 Cal.3d 518, 524 (1981). 25 potential abuses in the filing of Lis Pendens claims, the 26 Legislature created prejudgment procedures for their expungement. Malcolm v. In order to alleviate 27 3 28 The Court address Quality’s Motion to Dismiss in a separate order. 4 1 See Malcolm, 29 Cal.3d at 524-25. Therefore, “[a]t any time after 2 notice of pendency of action has been recorded, any party, or any 3 nonparty with an interest in the real property affected thereby, 4 may apply to the court in which the action is pending to expunge 5 the notice.” 6 should be expunged if it is found that, “the claimant has not 7 established by a preponderance of the evidence the probable 8 validity of the real property claim.” 9 Moreover, “it is the party attempting to sustain a lis pendens, Cal. Civ. Proc. Code § 405.30 (2009). A Lis Pendens Cal. Civ. Proc. § 405.32. 10 rather than the party seeking expungement, who bears the burden of 11 proving the propriety of the lis pendens under the applicable 12 statutory standard.” 13 Expunge Lis Pendens is successful, “[t]he court shall direct that 14 the party prevailing on [a Motion to Expunge Lis Pendens] be 15 awarded the reasonable attorney's fees and costs of making or 16 opposing the motion unless the court finds that the other party 17 acted with substantial justification or that other circumstances 18 make the imposition of attorney's fees and costs unjust.” 19 Civ. Proc. Code § 405.38. 20 Malcolm, 29 Cal.3d at 521. Where a Motion to Cal. Central District of California Local Rule 7-9 requires an 21 opposing party to file an opposition or a statement of non- 22 opposition to any motion at least fourteen (14) days prior to the 23 date designated for the hearing of the motion. 24 7-9. 25 file any required paper, or th failure to file it within the 26 deadline, may be deemed consent to the granting or denial of the 27 motion.” See C.D. Cal. L.R. Additionally, Local Rule 7-12 provides that “[t]he failure to C.D. Cal. L.R. 7-12. 28 5 1 Plaintiff has not met her burden to establish the probable 2 validity of the real property claim. 3 Order Granting Defendants Motion to Dismiss, all of Plaintiff’s 4 causes of action fail to state a claim upon which relief can be 5 granted. 6 Motion to Expunge Recorded Lis Pendens and Award of Attorneys Fees. 7 For both of these reasons, the Court GRANTS the Motion to Expunge 8 Lis Pendens. 9 II. 10 As discussed in the Court’s Additionally, Plaintiff has not filed a response to the CONCLUSION For the aforementioned reasons, the Motion to Expunge Lis 11 Pendens is GRANTED. Moreover, because the Court finds that 12 Plaintiff did not act with substantial justification in the filing 13 of Lis Pendens nor did she allege a valid real property claim, the 14 Court hereby awards Quality the amount of $1,250 for which 15 Plaintiff Myra M. Ritchie and her counsel, James Curtis are jointly 16 and severally liable. 17 18 IT IS SO ORDERED. 19 20 21 Dated: August 12, 2009 DEAN D. PREGERSON United States District Judge 22 23 24 25 26 27 28 6
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