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Ng v. U.S. Bank, NA

United States District Court, N.D. California

March 10, 2017

MARY JULIET NG, Plaintiff,
v.
US BANK, NA, et al., Defendants.

          ORDER GRANTING MOTION TO EXPUNGE NOTICE OF PENDENCY OF ACTION RE: DKT. NO. 119

          KANDIS A. WESTMORE United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff Mary Ng filed the instant suit against Defendants U.S. Bank, NA, Select Portfolio Servicing Inc. ("SPS"), and Quality Loan Service Corporation ("QLS"), alleging that Defendants violated various state and federal laws in transferring a deed of trust on Plaintiff's home and initiating foreclosure proceedings. Three motions to dismiss were filed in the case, as well as a motion for a temporary restraining order. (Dkt. Nos. 15, 47, 58, 75, 88.) On September 26, 2016, the Court granted Defendants' motion to dismiss Plaintiff's Second Amended Complaint in full and without leave to amend, and entered judgment accordingly. (Dkt. Nos. 86, 87.)

         On January 24, 2017, Defendants U.S. Bank and SPS filed a motion to expunge a lis pendens, which was recorded by Plaintiff on September 20, 2016. (Defs. Mot., Dkt. No. 119; see also Kress Decl., Exh. A, Dkt. No. 119-1.) This is the second motion to expunge filed in this action; Defendants previously filed a motion to expunge the lis pendens recorded by Plaintiff on August 1, 2016, which the Court granted on December 8, 2016. (Ord. at 1, Dkt. No. 116.) As with the prior motion, the Court deemed the matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b) and vacated the hearing that was set for March 2, 2017. (Dkt. No. 122.) Having considered the papers filed by the parties and the relevant legal authority, the Court GRANTS the motion to expunge for the following reasons.

         II. DISCUSSION

         A. Untimely Filing of Opposition

         As an initial matter, the Court strikes Plaintiff's opposition as untimely filed. Civil Local Rule No. 7-3(a) requires that "[t]he opposition must be filed and served not more than 14 days after the motion was filed." Here, Plaintiff's opposition was due by February 7, 2017, but Plaintiff did not file an opposition until February 17, 2017. (See Plf.'s Opp'n, Dkt. No. 120.) Plaintiff provides no reason for her lack of diligence, and the Court cannot conceive of any justification when the majority of her opposition is copied and pasted from her opposition to the first motion to expunge.[1] (Compare Plf.'s Opp'n at 3-6 with Dkt. No. 102 at 2-3, 6.) The remainder of the opposition repeats arguments made in Plaintiff's opposition to the motion for attorney's fees. (See Dkt. No. 101 at 3-5.)

         The Court might be inclined to overlook the late filing if not for the fact that this is the third motion Plaintiff has failed to timely oppose.[2] Moreover, the Court previously cautioned Plaintiff about her untimely filings. After Plaintiff failed to timely oppose Defendants' motion for attorney's fees, the Court issued an order to show cause, requiring Plaintiff's counsel to explain her failure to timely oppose. (Dkt. No. 95.) Plaintiff's counsel explained that she failed to correctly calendar the opposition deadline, relying on "the Central District Court's deadlines and procedures." (Dkt. No. 100 ¶ 5.) In discharging the order to show cause, the Court warned Plaintiff's counsel "that she must comply with the Northern District of California's Local Rules." (Dkt. No. 103 at 1.) Thus, Plaintiff's counsel was on notice of her obligation to comply with this district's local rules, but once again failed to do so. The Court therefore strikes Plaintiff's opposition as untimely filed.

         The Court's standing order states: "[t]he failure of the opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute consent to the granting of the motion." (Westmore Standing Ord. ¶ 22 (emphasis added).) "[N]ot filing an opposition until [ten] days after it is due is a failure to file within the meaning of Standing Order [Paragraph 22]." Woodfin Suite Hotels, LLC v. City of Emeryville, No. C 07-1719-SBA, 2008 U.S. Dist. LEXIS 5394, at *8 (N.D. Cal. Jan. 14, 2008); see also Woodfin Suite Hotels, LLC v. City of Emeryville, No. C 07-1719-SBA, 2007 WL 1655792, at *4 (N.D. Cal. June 7, 2007) (striking opposition that was not timely filed where the plaintiff did not request leave to file after the date required by the local rules and offered no explanation for its untimely filing, and granting the motion to dismiss based on the failure to oppose). Thus, the Court GRANTS Defendants' motion as unopposed.

         B. Merits

         In the alternative, the Court GRANTS Defendants' motion on the merits. First, as with the August 1, 2016 lis pendens, Plaintiff did not comply with the service and filing requirements of California Code of Civil Procedure 405.22. Section 405.22 requires that prior to recordation of the lis pendens, the claimant "shall . . . cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim . . . ." Following recordation, a copy of the lis pendens must be field with the court in which the action is pending, and service made immediately upon each adverse party later joined in the action. Cal. Civ. Proc. Code § 405.22. Failure to meet the requirements of Section 405.22 renders the lis pendens void and invalid as to any adverse party or owner of record. Cal. Civ. Proc. Code § 405.23.

         Here, Plaintiff again did not mail Defendants a copy of the lis pendens via registered or certified mail prior to recording it on September 20, 2016. Instead, Plaintiff sent the lis pendens by regular mail to a random U.S. Bank branch.[3] (See Kress Decl., Exh. A.) Plaintiff also failed to serve a recorded copy on Defendants or file a copy with the Court immediately upon recordation. (See Kress Decl. ¶ 6.) Thus, the lis pendens is void and must be expunged. (See Ord. at 4-5.)

         In opposition, Plaintiff repeats the same argument that she is not required to comply with California law because "the case in hand is not governed by the California Code of Civil Procedure, but rather by the Federal Rules of Civil Procedure." (Plf.'s Opp'n at 4.) For the same reasons stated in the Court's December 8, 2016 order, the Court rejects this argument as lacking legal merit. (See Ord. at 5 (citing Yu v. America's Wholesale Lender, Case No. 16-cv-1545-JSC, 2016 WL 4698911, at *5 ("California law governs matters relating to notices of pending action, or lis pendens"); Sharp v. Nationstare Mortg. LLC, Case No. 14-CV-831-LHK, 2016 WL 6696134, at *4 (N.D. Cal. Nov. 15, 2016) ("Federal courts look to the law of the state where the property resides in matters concerning lis pendens") (internal quotation omitted); Pistone v. Countrywide Home Loans, Inc., No. C 14-4581 WHA, 2015 WL 3424912, at *1 (N.D. Cal. May 27, 2015) (same); Kum Tat Ltd. v. Linden Ox Pasture, LLC, Case No. 14-cv-2857-WHO, 2014 WL 4652355, at *3 (N.D. Cal. Sept. 18, 2014) (same); Cerezo v. Wells Fargo Bank, Case No.: 13-1540 PSG, 2013 WL 4113515, at *1 (N.D. Cal. Aug. 9, 2013) (same)).)

         Second, for the same reasons stated in the Court's December 8, 2016 order, the instant case does not involve a real property claim, nor has Plaintiff shown by a preponderance of the evidence the probable validity of a real property claim. (See Ord. at 6.) ...


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