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Dennly Becker v. Wells Fargo Bank

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 5, 2012

DENNLY BECKER, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., INC., DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, proceeding pro se, has filed an ex parte motion for court approval of a lis pendens for the properties which are the subject of the instant action. Under California Code of Civil Procedure section 405.21, court approval is a prerequisite to recording of a lis pendens signed by a person acting in propria persona.

Plaintiff's claim to a lis pendens rests on his cause of action to quiet title. This claim cannot lie in that plaintiff fails to allege tender of the full amount owed on the loan. See Shimpones v. Stickney, 219 Cal. 637, 649 (1934) (mortgagor cannot quiet his title against the mortgagee without paying the debt secured); see also Aguilar v. Bocci, 39 Cal. App. 3d 475, 477 (1974); Kelley v. Mortgage Electronic Registration, 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009) ("Plaintiffs have not alleged . . . that they have satisfied their obligation under the Deed of Trust. As such, they have not stated a claim to quiet title.").

Since plaintiff's claim to quiet title appears to have no merit, defendants would be entitled to expungement of the notice of any lis pendens. See Cal. Code Civ. Proc. § 405.32 (the court "shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim"). Id. § 405.32. Under these circumstances, the court does not find a lis pendens is warranted.

Accordingly, IT IS HEREBY ORDERED that plaintiff's ex parte motion for court approval of lis pendens (dkt. no. 4) is denied.

20120305

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