Davenport v. Litton Loan Servicing LP et al

Filing 34

ORDER RE: 27 DENYING DEFENDANTS' MOTION TO EXPUNGE LIS PENDENS AS PREMATURE. Signed by Judge Richard Seeborg on 07/30/2010.(rslc3, COURT STAFF) (Filed on 7/30/2010)

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Davenport v. Litton Loan Servicing LP et al Doc. 34 1 2 3 4 5 6 7 8 9 10 *E-Filed 07/30/2010* IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION KAROL DAVENPORT, Plaintiff, No. C 10-0679 RS ORDER United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. LITTON LOAN SERVICING, et al., Defendants. ____________________________________/ Defendants ask the Court to expunge a lis pendens plaintiff Karol Davenport had recorded on January 14, 2010 following the sale of her home at foreclosure. This matter is appropriately resolved without oral argument, pursuant to Civil Local Rule 7-1(b). The hearing scheduled for August 5, 2010 at 1:30 p.m. is therefore vacated. Under California law, a court "shall" expunge a lis pendens if it finds that "the claimant has not established by a preponderance of the evidence the probable validity of the real property claim." Cal. Civ. Proc. 405.32. "Probable validity" means that "it is more likely than not that the claimant will obtain a judgment against the defendant on the claim." Orange County v. Hongkong and Shanghai Banking Corp. Ltd., 52 F.3d 821, 824 (9th Cir. 1995). The moving defendants concede that several claims for relief, including Davenport's state law rescission claim, at least arguably constitute real property claims. (Defs.' Mot. at 6.) On July, NO. C 10-0679 RS ORDER Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 16, 2010, this Court dismissed all twenty-six claims brought in Davenport's First Amended Complaint. Most, including the state law rescission claim, were dismissed with leave to amend. Davenport has not yet filed a Second Amended Complaint and it would be premature to assess the probable validity of this or any of her real property claims. The moving defendants' motion to expunge the lis pendens is therefore denied as premature. Defendants' request for attorney fees is also denied. IT IS SO ORDERED. United States District Court 11 For the Northern District of California Dated: 07/30/2010 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NO. C ORDER 2

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