Alvara v. Aurora Loan Services, Inc et al

Filing 18

ORDER by Judge Samuel Conti granting in part and denying in part 17 Motion (sclc1, COURT STAFF) (Filed on 1/5/2010)

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For the Northern District of California

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

GEORGE ALVARA,

United States District Court

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) ) Plaintiff, ) ) v. ) ) AURORA LOAN SERVICES, INC. (a ) Delaware Corporation); HOMEFIELD ) FINANCIAL, INC. (a California ) Corporation); QUALITY LOAN SERVICES) CORPORATION (a California ) Corporation), and DOES 1 through ) 50, inclusive, ) ) Defendants. ) ) )

No. C-09-1512 SC ORDER EXPUNGING LIS PENDENS

Following this Court's dismissal of Plaintiff's Complaint, Docket No. 11 ("Dismissal Order"), this Court refused to grant Plaintiff an extension of time to file his untimely Amended Complaint, and dismissed the suit with prejudice, Docket No. 16 ("Extension Order"). Defendant Aurora Loan Services has now filed

a Motion to Expunge Lis Pendens and Request for Award of Attorney Fees and Costs ("Motion"). Docket No. 17.

Under California Code of Civil Procedure section 405.31, "the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim." The

Court has previously found that Plaintiff failed to successfully plead a real property claim. Plaintiff failed to timely correct

his deficient pleading, and his claims were dismissed with

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For the Northern District of California

prejudice.

The Court therefore EXPUNGES the Notice of Action

Pending (Lis Pendens) dated January 23, 2009, signed by attorney James Curtis, on the subject property 193 1st Avenue, Daly City, California 94014, Assessor's Parcel No. 006-252-070. Aurora also seeks attorney fees under section 405.38: The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust. Cal. Civ. Proc. Code § 405.38. The Court finds that this suit Plaintiff's

United States District Court

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does not warrant the imposition of fees and costs.

Complaint was initially dismissed without prejudice, and it was Plaintiff's attorney who failed to properly prosecute this and other actions that resulted in this suit's premature dismissal. See Extension Order at 3-4. In addition, Plaintiff's house was

foreclosed upon because of his inability to pay his mortgage. Under these circumstances, the imposition of attorney fees against Plaintiff himself would not be just. Consequently, Plaintiff's

request for attorney fees and costs is DENIED. Aurora's Motion to expunge lis pendens on the subject property is GRANTED and its related request for attorney fees and costs is DENIED. IT IS SO ORDERED.

January 5, 2010 ____________________________ UNITED STATES DISTRICT JUDGE 2