ORDER RE: MOTION TO EXPUNGE LIS PENDENS AND REQUEST FOR ATTORNEY'S FEES
Plaintiffs Felipe Santos, Jr. and Gemma Santos purchased a home at 10111 Fitzgerald Drive, Bakersfield, CA 93311. They refinanced their mortgage on the property on February 7, 2007. Defendant Greenpoint Mortgage Funding, Inc. was the originating lender. Defendant U.S. Bank, N.A. was the assignee of the mortgage. Defendant Aurora Loan Services, LLC was the loan servicer. Plaintiffs owed $436,206.71 on the prior mortgage, replacing it with a new mortgage for $492,000. The mortgage was a variable rate loan with an initial rate of 7.375% and a maximum rate of 12.375% and minimum rate of 2.750%. As part of the refinance, Plaintiffs paid a number of miscellaneous fees Plaintiffs alleged were duplicative and unreasonable. By April 10, 2009, Plaintiffs fell behind on their mortgage payments.
Plaintiffs filed suit on May 21, 2009 in federal district court alleging several causes of action under state and federal law. Plaintiffs also filed a notice of lis pendens based on the suit. Defendants Greenpoint and Aurora filed motions to dismiss. Plaintiffs filed an amended complaint on October 12, 2009 which rendered both motions moot. Defendants Greenpoint and Aurora filed new motions to dismiss. The parties entered into discussions and Plaintiffs voluntarily dismissed all claims against Defendants Aurora and US Bank on February 22, 2010. The court dismissed Plaintiffs' complaint on June 1, 2010. Plaintiffs were given twenty-one days in which to file an amended complaint. No complaint was filed within that time and Defendant Greenpoint made a motion to dismiss for lack of prosecution under Fed. R. Civ. Proc 41(b). All claims against Defendant Greenpoint were dismissed with prejudice on August 2, 2010.
Defendant Aurora has made a motion to have the lis pendens expunged and seeks attorney's fees. "A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged." Cal. Code Civ. Proc. §405.20. A court will expunge this lis pendens notice under a number of situations, among them: (1) the pleading on which the notice is based does not contain a real property claim, (2) the claimant has not established by a preponderance of the evidence the probable validity of the real property claim, or (3) the real property claim has probable validity, but adequate relief can be secured to the claimant by the giving of an undertaking. Cal. Code Civ. Proc. §§405.31, 405.32, 405.33. The claimant who recorded the notice has the burden of proof in a motion to expunge. Cal. Code Civ. Proc. §405.30. Plaintiffs have filed no opposition to this motion. Plaintiffs have voluntarily dismissed their claims against Defendants Aurora and US Bank. Plaintiffs' claims against Defendant Greenpoint have now been dismissed with prejudice. There are no live claims left. Expungement of the lis pendens is proper.
Defendant Aurora also seeks $1,860 in attorney's fees and costs. Cal. Code Civ. Proc. §405.38 states "The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust." These cases brought by homeowners seeking to stave off foreclosure are unhappy affairs for all involved. "Under the circumstances here, an award of fees and costs is unjust, especially given [plaintiff's] inability to pay her mortgage." Adams v. SCME Mortg. Bankers, Inc., 2009 U.S. Dist. LEXIS 46600, 35-36 (E.D. Cal. May 22, 2009).
It is ordered that the Notice of Pendency of Action (Lis Pendens) regarding 10111 Fitzgerald Drive, Bakersfield, CA 93311; Assessor's Parcel No. 394-350-12-00-9 is expunged in accordance with Cal. Code. Civ. Proc. §405.31. Defendant Aurora's request for attorney's fees and costs is denied.
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