Blanca Nochez v. Select Portfolio Servicing, Inc. et al

Filing 27

ORDER GRANTING DEFENDANTS MOTION TO DISMISS COMPLAINT AND EXPUNGELIS PENDENS 6 , 10 by Judge Dean D. Pregerson( MD JS-6. Case Terminated ) (lc). Modified on 9/17/2012 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BLANCA NOCHEZ,

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Plaintiff,
v.
SELECT PORTFOLIO SERVICING,
INC., BANK OF AMERICA,
RECONTRUST COMPANY,
COUNTRYWIDE BANK, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
WELLS FARGO BANK, N.A., and
DOES 1 through 10,
inclusive,

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Defendants.
___________________________

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Case No. CV 12-01982 DDP (CWx)
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS COMPLAINT AND EXPUNGE
LIS PENDENS
[Docket Nos. 6, 10]

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Presently before the court is Defendants Bank of America,

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N.A., and Recontrust Company’s Motion to Dismiss Complaint and

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Expunge Lis Pendens (“Motion”).

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moving papers, the court grants Defendants’ Motion and adopts the

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following Order.1

Having reviewed the parties’

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Plaintiff voluntarily dismissed Defendants Select Portfolio
Servicing, Inc., Wells Fargo Bank, N.A., and Mortgage Electronic
Registration Systems, Inc., by filing an August 6, 2012 Amended
Notice of Dismissal Pursuant to Federal Rules of Civil Procedure
41(a) or (c). The separate Motion to Dismiss filed by those
(continued...)

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Plaintiff Blanca Nochez previously filed suit against

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Defendants in California state court on May 28, 2010, challenging

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the validity of Defendants’ deed of trust on her property and

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seeking to enjoin a pending trustee’s sale.

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dismissed Plaintiff’s entire action with prejudice on February 16,

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2011, after Plaintiff failed to appear at a hearing on Defendants’

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motion to dismiss for failure to amend.

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in this court on March 8, 2012, again challenging the validity of

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the deed of trust and seeking to stop a pending trustee’s sale.

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The state court

Plaintiff then filed suit

Defendants argue that all of Plaintiff’s claims are barred by

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res judicata, because they “could have been raised” in her prior

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state court action.

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1189, 1192 (9th Cir. 1997).

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judicata to apply there must be: 1) an identity of claims, 2) a

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final judgment on the merits, and 3) identity or privity between

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parties.”

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because the parties are the same and the state court judgment

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dismissing the prior action with prejudice for failure to amend

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constitutes a final judgment on the merits.

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Chase Bank, No. 11-CV-02920, 2011 WL 6002599, at *6 (N.D. Cal. Nov.

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30, 2011).

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Id.

See W. Radio Servs. Co. v. Glickman, 123 F.3d
The court agrees.

“In order for res

The latter two requirements are clearly met here,

See Quinto v. JPMorgan

The court also finds that there an identity of claims in the

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two actions, notwithstanding Plaintiff’s addition of various claims

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in the instant Complaint.

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multiple factors in determining whether there is an identity of

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claims, the primary focus is whether the “two suits arise from the

Although the Ninth Circuit has looked at

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(...continued)
Defendants is therefore moot.
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same transactional nucleus of facts.”

Tahoe-Sierra Pres. Council,

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Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 (9th Cir.

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2003) (internal quotation marks omitted).

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of Plaintiff’s claims in both actions are tied to the validity of

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the deed of trust and Defendants’ right to conduct a foreclosure

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sale.

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transactional nucleus of facts - i.e. as to the origination of the

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loan and Defendants’ authority to foreclose on the property.

Here, as mentioned, all

Both of Plaintiff’s actions therefore arise from the same

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Further, Plaintiff does not address Defendants’ res judicata

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argument, other than stating in her Opposition to the Motion that

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one of the Defendants had offered her a loan modification if she

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did not pursue her state court action.

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finds that this conclusory allegation does not change the res

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judicata analysis.

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with the state court action, Plaintiff’s remedy would be to seek to

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set aside the state court judgment.

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Without more, the court

If Defendants in fact fraudulently interfered

For all of these reasons, the court hereby GRANTS Defendants’
Motion to Dismiss Complaint and Expunge Lis Pendens.

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IT IS SO ORDERED.

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Dated: September 17, 2012
DEAN D. PREGERSON
United States District Judge

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