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Ademar A. Marques v. Wells Fargo Home Mortgage

November 10, 2011


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


On September 9, 2009, Defendant Wells Fargo Home Mortgage, Inc. removed this mortgage-foreclosure action to this Court. On June 6, 2011, Defendant filed a counterclaim against Plaintiff Ademar A. Marques for slander of title and abuse of process. (Doc. 53.) Defendant's counterclaim is based on the allegation that Plaintiff's notices of lis pendens recorded against the real property involved in this action were not statutorily authorized. Plaintiff now moves to dismiss the counterclaim in its entirety. Defendant opposes.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 74.) For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to dismiss.


In September 2005, Plaintiff took out a $488,166.42 loan with Centex Home Equity Co., LLC to refinance the property located at 4431 Paola Way, San Diego, CA 92117 ("subject property"). (Counterclaim ¶¶ 1, 13 [Doc. 53].) The loan was secured by a Deed of Trust, and Defendant subsequently became the servicer on the loan. (Id. ¶¶ 13--14.)

Beginning March 2008, Plaintiff became delinquent on the loan. (Counterclaim ¶ 15.) After informing Plaintiff of his defaults, Defendant began the process of foreclosing on the subject property. (Id.)

On July 27, 2009, Plaintiff filed a complaint in San Diego Superior Court, asserting three causes of action: (1) breaches of written contracts; (2) declaratory relief; and (3) unlawful and unfair acts and practices. (Doc. 1.) Defendant then removed this action to this Court. (Id.) On August 30, 2010, Plaintiff filed a First Amended Complaint ("FAC") asserting the same three causes of action in the original complaint. (Doc. 15.)

Due to Plaintiff's "longstanding inability to cure the defaulted amount on the Loan," the subject property was sold at a Trustee's Sale to U.S. Bank. (Counterclaim ¶ 19.) On March 30, 2010, the Trustee recorded its Deed Upon Sale showing the transfer of the subject property's title to U.S. Bank. (Id.) And on May 6, 2010, U.S. Bank commenced an unlawful-detainer action against Plaintiff in San Diego Superior Court. (Id. ¶ 23.) Eventually, Plaintiff stipulated to a judgment in that action in favor of U.S. Bank, which allowed him to remain in possession of the subject property until October 4, 2010. (Id. ¶ 24.) Later, U.S. Bank granted Plaintiff a one-month extension to remain on the subject property. (Id.)

Despite agreeing to vacate the subject property, Plaintiff filed an ex parte application for a temporary restraining order ("TRO") to prevent the enforcement of the stipulated judgment. (Counterclaim ¶ 25.) The Court granted Plaintiff's TRO application. (Doc. 23.) However, on November 10, 2011, the Court denied Plaintiff's request for a preliminary injunction, and dissolved and vacated the TRO. (Doc. 29.) In that order, the Court also suggested that none of Plaintiff's claims in the complaint could affect U.S. Bank's title to or possession of the subject property. (November 11, 2011 Order 7:25--8:16 [Doc. 29].)

On December 9, 2010, Plaintiff recorded a lis pendens against the subject property. (Counterclaim ¶ 29.) Defendant alleges that Plaintiff recorded this lis pendens "in an improper attempt to gain leverage over [Defendant] in the pending lawsuit between the parties." (Id. ¶ 30.) Defendant also alleges that Plaintiff did not serve it prior to recording the lis pendens, did not file the lis pendens with the Court immediately after recording it against the subject property, and did not record a certificate of service. (Id. ¶ 31.)

On January 10, 2011, a third party reached an agreement with Defendant to purchase the subject property for $365,000. (Counterclaim ¶ 32.) On the same day, the listing agent informed Defendant that a lis pendens had been recorded against the subject property, which Defendant had not been aware of. (Id. ¶ 33.) The notice stated, in part, that this action "affects title to and/or possession of" the subject property. (Renewed Notice of Pendency [Doc. 51].) Defendant alleges that "[a]s a direct result of the wrongfully recorded First Lis Pendens, the Subject Property fell out of escrow and the transaction did not close," thereby preventing it from collecting $365,000 in proceeds. (Id. ¶¶ 33, 45.) Defendant further alleges that "[o]ther sales have likely been defeated as well." (Id. ¶ 46.)

On May 23, 2011, Defendant filed a motion to expunge the lis pendens. (Doc. 47.) Shortly thereafter, Plaintiff voluntarily withdrew the lis pendens. (Doc. 50.) But immediately after withdrawing it, Plaintiff recorded a renewed lis pendens against the subject property. (Doc. 51.) Eventually, the Court granted the motion to expunge. (Doc. 69.) In that order, the Court found the following:

First, U.S. Bank is the current owner of the [Subject] Property, but is not a party to this action. Plaintiff has not provided any legal authority or argument to support the proposition that any of the claims he alleged in this action against Defendant[] could result in a judgment unwinding the sale to U.S. Bank or that any relief ordered in this action would be binding on U.S. Bank.

Second, in the unlawful detainer action by U.S. Bank against Plaintiff, Plaintiff stipulated to a judgment giving up his right to possession of the [Subject] Property. U.S. Bank's right to possession was based ...

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