Davenport v. Litton Loan Servicing LP et al

Filing 90

ORDER RE: MOTION TO EXPUNGE. Signed by Judge Richard Seeborg on 8/19/11. (cl, COURT STAFF) (Filed on 8/19/2011)

*E-Filed 8/19/11*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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KAROL DAVENPORT,

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Plaintiff,

No. C 10-0679 RS
ORDER RE: MOTION TO EXPUNGE

v.
FIRST FINANCIAL,

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Defendant.
____________________________________/
Former defendants U.S. Bank and Litton Loan ask the Court to expunge a lis pendens

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plaintiff Karol Davenport recorded on January 14, 2010 following the sale of her home at

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foreclosure. All claims brought against U.S. Bank and Litton Loan have been dismissed, and

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Davenport has not included either as a defendant in the most recent iteration of her complaint.

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Because no “real property” claims remain against them, these former defendants insist that the lis

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pendens must be expunged.

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Under California law, a court “shall” expunge a lis pendens if it finds that “the claimant has

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

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Cal. Civ. Proc. § 405.32. “Probable validity” means that “it is more likely than not that the claimant

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will obtain a judgment against the defendant on the claim.” Orange County v. Hongkong and

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Shanghai Banking Corp. Ltd., 52 F.3d 821, 824 (9th Cir. 1995). Davenport argues that, even though
NO. C 10-0679 RS
ORDER

claim—in the form of a claim for declaratory relief—against Litton Loan. She believes the original

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note is null and void, and therefore that the ultimate sale at foreclosure was also tainted. Because

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she represents that the ability to satisfy the “probable validity” evidentiary requirement depends on

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the result of on-going discovery with First Financial, Davenport requests an extension of the hearing

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date. That request shall be granted, and the September 1, 2011 hearing date is vacated. On or

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before November 3, 2011, Davenport may file a brief of no more than seven pages of text updating

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the portion of her opposition that addresses her evidentiary burden. U.S. Bank and Litton may

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respond, subject to identical page limits, on or before November 10, 2011. The matter will then be

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taken under submission without oral argument, pursuant to Civil Local Rule 7-1(b), and an order on

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For the Northern District of California

U.S. Bank and Litton Loan are no longer defendants, she has nonetheless included a real property

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United States District Court

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the motion to expunge shall issue thereafter.

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IT IS SO ORDERED.

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Dated: 8/19/11
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 10-0679 RS
ORDER

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