Cantley v. BAC Home Loans Servicing LP et al

Filing 26

ORDER granting 25 Defendants' Motion to expunge the lis pendens. That the lis pendens pertaining to real property located in Maricopa County at 9371 W. Williams Street in Tolleson, Arizona and recorded at docket 20110295183 is EXPUNGED. Signed by Judge Frederick J Martone on 1/17/12.(DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 ) ) ) Plaintiff, ) ) vs. ) ) BAC Home Loans Servicing LP;) MERSCORP Inc.; Mortgage Electronic) Registration Systems Inc.; ReconTrust) ) Company NA, ) ) Defendants. ) ) Coretta Cantley, CV 11-00669-PHX-FJM ORDER 17 The court has before it defendants' motion to expunge the lis pendens (doc. 25). 18 Plaintiff did not respond, and the time for responding has expired. 19 Plaintiff filed this action alleging violations of several federal laws, including the Fair 20 Debt Collection Practices Act and the Truth in Lending Act. On April 6, 2011, plaintiff filed 21 a Notice of Lis Pendens for her property in Tolleson, Arizona with this court (doc. 2), which 22 was recorded with the Maricopa County Recorder. Plaintiff filed a motion to voluntarily 23 dismiss her case in August 2011 (doc. 23). We dismissed the action in its entirety a few days 24 later, noting that plaintiff may dismiss her action without a court order pursuant to Rule 25 41(a)(1)(A), Fed. R. Civ. P. (doc. 24). Defendants now seek an order expunging the lis 26 pendens, noting that plaintiff has not provided a release of the lis pendens pursuant to A.R.S. 27 ยง 12-1191(C). 28 1 Arizona law requires a plaintiff to issue a release of the notice of lis pendens to the 2 defendant within thirty days after an action is dismissed for lack of prosecution. Id. 3 Defendants state that plaintiff has not granted the required release, and more than four 4 months have elapsed since plaintiff voluntarily dismissed this action. We agree that at this 5 point expungement of the lis pendens is appropriate. Alternatively, because plaintiff failed 6 to respond to the motion, we may construe the lack of a response as a concession and grant 7 the motion summarily. See LRCiv 7.2(i) ("if the unrepresented party. . . does not serve and 8 file the required answering memoranda. . . such non-compliance may be deemed a consent 9 to the denial or granting of the motion and the Court may dispose of the motion summarily"). 10 IT IS ORDERED GRANTING defendants' motion to expunge the lis pendens (doc. 11 25). IT IS ORDERED that the lis pendens pertaining to real property located in Maricopa 12 County at 9371 W. Williams Street in Tolleson, Arizona and recorded at docket 13 20110295183 is EXPUNGED. 14 DATED this 17th day of January, 2012. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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