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Davenport v. Litton Loan Servicing

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


July 30, 2010

KAROL DAVENPORT, PLAINTIFF,
v.
LITTON LOAN SERVICING, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Richard Seeborg United States District Judge

ORDER

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, 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.

20100730

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