Rivera v. Windsor Capital Mortgage Corp. et al

Filing 11

ORDER: (1) granting 9 Motion to Reopen Case ; (2) Expunging Lis Pendens: the lis pendens as to the property is HEREBY EXPUNGED from the public record. Signed by Judge Janis L. Sammartino on 6/24/11. (All non-registered users served via U.S. Mail Service)(lmt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

FRANCISCO RIVERA,

CASE NO. 10-CV-606 JLS
Plaintiff,

12

ORDER: (1) GRANTING EX
PARTE MOTION TO REOPEN
CASE; (2) EXPUNGING LIS
PENDENS

vs.
13
14
15

WINDSOR CAPITAL MORTGAGE CORP.;
GREENE APPRAISALS; KEVIN GREENE;
BANK OF AMERICA, N.A.; ONE WEST
BANK FSB; NDEX WEST, LLC; et al.,

(ECF No. 9)

16
Defendant.
17
18

Presently before the Court is Defendant Bank of America, N.A.’s unopposed ex parte motion

19

to reopen case. (Mot. to Reopen, ECF No. 9.) Because of the relief Defendant requests, the Court

20

treats Defendant’s motion as one to expunge Plaintiff’s lis pendens. For the reasons stated,

21

Defendant’s motion is GRANTED.

22

BACKGROUND

23

On March 23, 2010, Plaintiff filed a complaint alleging nine federal- and state-law claims

24

allegedly arising out of Plaintiff’s purchase and financing of real property located at 29527 Anthony

25

Road, Valley Center, California. (See generally Compl. ¶¶ 16–81, ECF No. 1.) He filed a notice of

26

lis pendens as to the property on the same day. (Lis Pendens, ECF No. 3.) As in many other cases,

27

Plaintiff’s counsel, Kent C. Wilson, failed to serve the defendants, and the case was dismissed for

28

failure to prosecute. (Judgment, ECF No. 9; see Luna v. U.S. Bank, N.A., 2011 WL 1099795, at *1
-1-

10cv606

1

(S.D. Cal. Mar. 24, 2011) (noting that Wilson has filed more than 130 mortgage cases in this district

2

since April 28, 2009, none of which has yet been successful); Navarro v. Greenlight Fin. Servs., 2010

3

WL 4117444, at *1 (S.D. Cal. Oct. 19, 2010) (noting that Wilson is in the process of resigning his

4

membership in the State Bar of California).) Several months later, Defendants filed the instant

5

motion. (Mot. to Reopen.)

6

ANALYSIS

7

Federal courts look to state law in matters pertaining to lis pendens. See 28 U.S.C. § 1964.

8

Under California Code of Civil Procedure section 405.20, “[a] party to an action who asserts a real

9

property claim may record a notice of pendency of action in which that real property claim is alleged.”

10

“The purpose of a lis pendens is to give ‘constructive notice that an action has been filed affecting title

11

or right to possession of the real property described in the notice.’” De Vega v. Suntrust Mortg., Inc.,

12

2011 WL 1336469, at *1 (E.D. Cal. Apr. 7, 2011) (quoting BGJ Assocs., LLC v. Superior Court, 89

13

Cal. Rptr. 2d 693, 702 (Cal. Ct. App. 1999)). “A lis pendens effectively prevents a sale or

14

encumbrance of the property until the litigation is resolved or the lis pendens is expunged.” Farias

15

v. FCM Corp., 2010 WL 4806894, at *4 (S.D. Cal. Nov. 18, 2010) (citing Kirkeby v. Superior Court,

16

93 P.3d 395 (Cal. 2004)).

17

“At any time after notice of pendency of action has been recorded, any party . . . may apply

18

to the court in which the action is pending to expunge the notice.” Cal. Civ. Proc. Code § 405.30. The

19

court shall expunge the notice if (1) “the court finds that the pleading on which the notice is based

20

does not contain a real property claim,” id. § 405.31; or (2) “the court finds that the claimant has not

21

established by a preponderance of the evidence the probable validity of the real property claim,” id.

22

§ 405.32.

23

Here, as a result of Plaintiff’s failure to prosecute his claims—likely a consequence of

24

counsel’s abandonment of his client—the Court dismissed Plaintiff’s claims. As such, Plaintiff is left

25

without “a real property claim” and cannot establish the “probable validity” of such a claim in this

26

case. Accordingly, Defendant’s motion to expunge the lis pendens is GRANTED.

27
28

CONCLUSION
For the reasons stated, Defendant’s motion to expunge lis pendens is GRANTED, and the lis
-2-

10cv606

1

pendens as to the property located at 29527 Anthony Road, Valley Center, California, and recorded

2

in the San Diego County Recorder’s Office as Document Number 2010-0143569, is HEREBY

3

EXPUNGED from the public record.

4

IT IS SO ORDERED.

5
6
7
8

DATED: June 24, 2011
Honorable Janis L. Sammartino
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-

10cv606