Dubinskiy et al v. Aurora Loan Services et al

Filing 31

ORDER Re: 29 Motion to Expunge Lis Pendens and Request For Attorney's Fees, signed by Chief Judge Anthony W. Ishii on 8/12/2011. It is Ordered that the Notice of Pendency of Action (Lis Pendens) regarding 7843 North Backer Ave., Fresno, CA 93720; Assessors Parcel No. 404-510-09 is expunged in accordance with Cal. Code. Civ. Proc. §405.31. Defendant Auroras request for attorneys fees and costs is DENIED. (Marrujo, C)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11
12
13
14
15
16
17
18

LEONID DUBINSKIY, NADEZHDA
DUBINSKIY,

)
)
)
Plaintiffs,
)
)
v.
)
)
AURORA LOAN SERVICES;
)
COUNTRYWIDE HOME LOANS, INC.; )
SANTA CRUZ MORTGAGE
)
COMPANY; MORTGAGE
)
ELECTRONIC REGISTRATION
)
SYSTEMS, INC.; CAL-WESTERN
)
RECONVEYANCE CORP.; and DOES 1- )
250,
)
)
Defendants.
)
____________________________________ )

CIV-F-10-0735 AWI GSA
ORDER RE: MOTION TO
EXPUNGE LIS PENDENS AND
REQUEST FOR ATTORNEY’S
FEES

19
20
21

Plaintiffs Leonid and Nadezhda Dubinskiy purchased a home at 7843 N. Backer Ave.,

22

Fresno, CA 93720. They obtained a mortgage on March 3, 2005. Defendant Aurora Loan

23

Services LLC (“Aurora”) was the lender. However, other allegations imply that Defendant Santa

24

Cruz Mortgage Company, Inc. (“Santa Cruz”) may have been the lender. The Deed of Trust

25

recorded March 11, 2005, identifies Defendant Mortgage Electronic Registration Systems, Inc.

26

(“MERS”) as beneficiary. Plaintiffs fell behind on their mortgage payments. Defendant Cal-

27

Western Reconveyance Corporation (“Cal-Western”) filed a Notice of Default, recorded April

28

27, 2009. Defendant Cal-Western filed a Notice of Trustee Sale, recorded August 6, 2009 that
1

1

set August 25, 2009 as the date of public auction of the property. Plaintiffs have also named as a

2

Defendant, Countrywide Home Loans, Inc. (“Countrywide”), but do not explain how that entity

3

is at all connected to these series of events.

4

Proceeding without legal representation, Plaintiffs filed suit in Superior Court, County of

5

Fresno, on September 22, 2009. A first amended complaint was filed in state court on March 23,

6

2010. Doc. 1, Part 1. The complaint is comprised of eight causes of action: 1) the federal Truth

7

in Lending Act; 2) California’s Rosenthal Fair Debt Collection Practices Act; 3) negligence; 4)

8

the federal Real Estate Settlement Procedures Act; 5) breach of fiduciary duty; 6) fraud; 7)

9

California’s Unfair Competition Law; and 8) breach of the implied covenant of good faith and

10

fair dealing. The complaint includes a number of inchoate allegations regarding a scheme to

11

infuse capital into the home mortgage lending system which resulted in the invalid transfer of

12

beneficial interest to third parties through MERS (who allegedly does not have the authority to

13

operate in California), questioning whether Plaintiffs were provided legal tender as part of the

14

mortgage, and questioning whether the original promissory note or a substitute note was

15

recorded. Defendant Countrywide removed the case to the Eastern District of California, based

16

on federal question jurisdiction.

17

Defendants Countrywide, Aurora, and MERS filed motions to dismiss pursuant to Fed.

18

Rule Civ. Proc. 12(b)(6). Plaintiffs filed neither an opposition or a notice of non-opposition. By

19

order of November 29, 2010, Plaintiffs’ complaint was dismissed without prejudice. Plaintiffs

20

were given twenty eight days to file an amended complaint and to show cause why Defendant

21

Santa Cruz should not be dismissed for failure to serve. Plaintiffs neither filed an amended

22

complaint or communicated with the court in any way. For failure to prosecute, the case was

23

dismissed with prejudice on February 8, 2011.

24

Defendant Aurora has now made a motion to have the lis pendens expunged and seeks

25

attorney’s fees. “A party to an action who asserts a real property claim may record a notice of

26

pendency of action in which that real property claim is alleged.” Cal. Code Civ. Proc. §405.20.

27

A court will expunge this lis pendens notice under a number of situations, among them: (1) the

28

pleading on which the notice is based does not contain a real property claim, (2) the claimant has
2

1

not established by a preponderance of the evidence the probable validity of the real property

2

claim, or (3) the real property claim has probable validity, but adequate relief can be secured to

3

the claimant by the giving of an undertaking. Cal. Code Civ. Proc. §§405.31, 405.32, 405.33.

4

The claimant who recorded the notice has the burden of proof in a motion to expunge. Cal. Code

5

Civ. Proc. §405.30. Plaintiffs have filed no opposition to this motion. Plaintiffs’ claims were

6

dismissed with prejudice for failure to prosecute. Expungement of the lis pendens is proper.
Defendant Aurora also seeks $3,037.50 in attorney’s fees and costs. Cal. Code Civ. Proc.

7
8

§405.38 states “The court shall direct that the party prevailing on any motion under this chapter

9

be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the

10

court finds that the other party acted with substantial justification or that other circumstances

11

make the imposition of attorney’s fees and costs unjust.” These cases brought by homeowners

12

seeking to stave off foreclosure are unhappy affairs for all involved. “Under the circumstances

13

here, an award of fees and costs is unjust, especially given [plaintiff’s] inability to pay her

14

mortgage.” Adams v. SCME Mortg. Bankers, Inc., 2009 U.S. Dist. LEXIS 46600, 35-36 (E.D.

15

Cal. May 22, 2009).

16

It is ordered that the Notice of Pendency of Action (Lis Pendens) regarding 7843 North

17

Backer Ave., Fresno, CA 93720; Assessor’s Parcel No. 404-510-09 is expunged in accordance

18

with Cal. Code. Civ. Proc. §405.31. Defendant Aurora’s request for attorney’s fees and costs is

19

denied.

20
21

IT IS SO ORDERED.

22
23

Dated:
0m8i78

August 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE

24
25
26
27
28
3