2012-00137397-CU-OR

Dennis Collins vs. Real Property in Rem

Nature of Proceeding: Motion to Expunge

Filed By: Betageri, Chaitra G.

Defendant Nationstar Mortgage, LLC’s unopposed motion to expunge Plaintiff Dennis Collins’ notice of intent to preserve interest is denied.

Defendant’s request for judicial notice is granted.

Defendant moves to expunge a “Notice of Intent to Preserve Interest” recorded by Plaintiff in January 2015. The notice was recorded to “preserve an interest in real property from extinguishment pursuant to Title 5 (commencing with Section 880.020) of Part 2 of Division 2 of the Civil Code (Marketable Record Title).” (RJN Exh. E.) Defendant argues that the document can be expunged similar to lis pendens under CCP § 405.30, et seq. and that it can recover fees pursuant to CCP § 405.38.

Here, the only authority cited by Defendant for the proposition that the Notice of Intent to Preserve Interest is a cloud on title is an unpublished opinion. Defendant’s citation to this opinion is improper. “[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or any party in any other action. (CRC Rule

8.1115.) Other than the improperly cited authority which cannot be relied upon by this Court, there is no authority which would allow Defendant to move to expunge a “Notice of Intent to Preserve Interest” pursuant to the statutory scheme applicable to a lis pendens and also seek fees under that statutory scheme. None of the properly cited authority involves a motion to expunge a “Notice of Intent to Preserve Interest” and instead deals with lis pendens.

To that end, to the extent that there is an issue with the “Notice of Intent to Preserve Interest” the statutory scheme which permits the recordation of that document contemplates an action to challenge that document as opposed to moving to expunge. To that end, Civil Code § 880.360 provides that in an action to establish or quiet title determines that a person recorded a “Notice of Interest to Preserve Interest” for the purpose of slandering title, the Court shall award damages caused by the recording including reasonable attorney’s fees. (Civ. Code § 880.360.) Defendant did not file a cross-complaint in this action seeking to quiet title, much less make any showing that Plaintiff acted for the purpose of slandering title. The Court would also note that even the unpublished case cited by Defendant does not involve a motion to expunge but involved a separate action seeking to cancel the “Notice of Intent to Preserve Interest.”

To the extent that Defendant has an issue with the “Notice of Intent to Preserve Interest,” its remedy is to file a separate action.

The motion must be denied on the basis that Defendant failed to provide any authority for the relief requested.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.