2018-00232496-CU-OR

Yelena Markevich vs. Fay Servicing, LLC

Nature of Proceeding: Motion to Expunge Lis Pendens

Filed By: Logan, Jana

The motion of Defendant U.S. Bank, N.A., as Legal Title Trustee for the Truman 2016 SC6 Title Trust, (U.S. Bank) to expunge lis pendens is GRANTED.

U.S Bank’s request for judicial notice of recorded land documents and court records is GRANTED.

This is a wrongful foreclosure case. Yelena Markevich is the sole plaintiff.

On 8/13/18, the court sustained U.S. Bank’s demurrer to the complaint, which contained causes of action for wrongful foreclosure, violation of B&P Code § 17200, violation of CC § 2923.6 [dual tracking], and violation of 12 USC § 2605 et seq. [federal lending disclosure requirements]. The court concluded, among other things, that Markevich had failed to establish her standing, has failed to establish wrongful assignments, and had failed to allege tender of the debt. (See Order of 8/13/18.) As a consequence, there are no operative legal claims against U.S. Bank, including any legal claims that could qualify as real property claims supporting a lis pendens. (See CCP § 405.31; Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647-648.)

Markevich opposes on grounds the operative pleading is a first amended complaint (FAC), not the original complaint to which a demurrer was sustained. There is no FAC in the court’s files. But even if there were, U.S. Bank was entitled to move to expunge the lis pendens on grounds the pleading on which the lis pendens was based–the original complaint–did not contain a valid real property claim. (See CCP § 405.31.) That Markevich might intend to file an FAC containing a quiet title cause of action, which requires a lis pendens to be recorded, does not alter the analysis. Before recording another lis pendens, Markevich will be required to obtain leave of court. (See id. § 405.36.)

In the alternative, Markevich argues U.S. Bank may not move to expunge the lis pendens because it does not hold title to the property. Under CCP § 405.30, only a party or nonparty with an “interest” in the property may file a motion to expunge. Because U.S. Bank is the title trustee, U.S. Bank is such an interested party. (See RJN, Exh. G.)

Markevich’s request for an undertaking is DENIED.

The court grants the motion largely because U.S. Bank prevailed on its demurrer, not

because of arguments raised in the moving papers. Under these circumstances, the
court will not award U.S. Bank its fees incurred to draft the moving papers. (See CCP
§ 405.38.) On the other hand, U.S. Bank is entitled to fees incurred crafting the reply, which addresses arguments raised in opposition. Accordingly, the court awards U.S. Bank $295 (1 hr @ reasonable rate of $295/hr). (See Logan Decl., ¶¶ 3-4.)

Pursuant to CRC 3.1312, U.S. Bank is directed to lodge a formal order for the court’s signature. U.S. Bank shall not record the order until such time as permitted under CCP §§ 405.36 and 405.39.