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Ritchie v. Community Lending Corp.

August 12, 2009

MYRA M. RITCHIE, PLAINTIFF,
v.
COMMUNITY LENDING CORPORATION, FIRST AMERICAN TITLE COMPANY, QUALITY LOAN SERVICE CORPORATION, AND DOES 1 THROUGH 50, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING MOTION TO EXPUNGE LIS PENDENS [Motion filed on May 13, 2009]

This matter comes before the Court on Defendant Quality Loan Service Corporation's Motion to Expunge Lis Pendens. Plaintiff Myra M. Ritchie, who entered into an Adjustable Rate loan agreement brings this suit against Community Lending Incorporated*fn1 , First American Title Company, Quality Loan Service Corporation, and Does 1-50 for violations of law related to disclosures about the loan. Specifically, the Complaint seeks to allege violations of California's Predatory Lending Act, California Financial Code § 4970 et seq.; the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; the Home Ownership and Equity Protection Act, 15 U.S.C. § 1602 et seq.; and the Federal Trade Commission Act, 15 U.S.C. § 45 et seq. After reviewing the materials submitted by the parties and considering the argument therein, the Court grants the Motion to Expunge Lis Pendens.

I. BACKGROUND

On September 28, 2005, Plaintiff Myra M. Ritchie ("Plaintiff") borrowed $359,650 under a promissory note to purchase a home located at 1400 Yale Place, Santa Maria, California 93458 ("Subject Property"). (Mot. to Dismiss 2.) Plaintiff executed a Deed of Trust ("Deed") in favor of Defendant Community Lending Incorporated*fn2 ("Community") to secure the loan against the Subject Property. (Mot. to Dismiss 2.)

On September 30, 2008, Quality Loan Service Corporation ("Quality"), as agent for the beneficiary of the Deed, commenced a non-judicial foreclosure against the Subject Property by recording and serving a Notice of Default and Election to Sell Under the Deed. (Mot. to Dismiss 2.) The Notice of Default provided that, as of September 26, 2008, the accrued arrears on the Subject Property loan totaled $11,148.12. (Mot. to Dismiss 2.) On December 31, 2008, Quality issued a Notice of Trustee's Sale ("Notice") of the Subject Property. (Mot. to Dismiss 3.) The Notice of Trustee's Sale was recorded on January 2, 2009. (Mot. to Dismiss 3.)

On January 30, 2009, Plaintiff filed the case at bar against Defendants Community, First American Title Company ("First American"), and Quality (Collectively, "Defendants"), alleging the following seven (7) causes of action:

1. Declaratory Relief, statutory rescission and damages based on the allegations that the contract was in English and not Spanish, and that the true interest rate, loan repayment terms, and costs and fees for the loan were not properly disclosed.

2. Set Aside of the Notice of Trustee's Sale and Notice of Default based on the allegations that Plaintiff was not properly served a Notice of Default and that Defendants were required to be in actual possession of the original Promissory Note and Deeds of Trust.

3. Cancellation of Instruments based upon the allegation that the Notice of Trustee's Sale and Notice of Default are voidable because of statutory violations.

4. Quiet Title to Real Property based on the allegation that Plaintiff is the fee title owner of the subject property.

5. Accounting based on the allegation that Plaintiff is entitled to a detailed accounting calculation and summary of the payoff balance.

6. Injunctive Relief based on the allegation that Defendants are threatening to deprive Plaintiff of her title and interest in real property.

7. Damages based on allegations of statutory violations. (Compl. ¶¶ 1-45.) On April 9, 2009, Quality removed the case at bar to this Court. (Mot. to Dismiss 3.) On May 12, 2009, Defendant Quality filed a Motion to Dismiss*fn3 pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket 6.) Plaintiff recorded a Lis Pendens at the Santa Barbara County Recorder's Office [instrument number 2009-0004978] on January 30, 2009. (Request for Judicial Notice, Ex. E at 1-2.) On May 13, 2009, Defendant Quality filed a Motion ...


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