Fermin Solis Aniel and Erlinda Abibas Aniel

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	) Bankruptcy Case
) No. 09-30452DM
FERMIN SOLIS ANIEL and ERLINDA 	)
ABIBAS ANIEL, aka Erlinda Jose 	) Chapter 11
Abibas, 	)
Debtors. 	)
___________________________________)
MEMORANDUM DECISION REGARDING
MOTION TO EXPUNGE LIS PENDENS (CLEARFIELD DRIVE)
On December 15, 2009, Aurora Loan Services (“Creditor”) filed
a motion for relief from stay (“MRS”). 	On December 22, 2009,
Fermin Solis Aniel and Erlinda Abibas Aniel (“Debtors”) filed an
opposition to the MRS. 	On the same day, they filed a Notice of
Pending Action (Lis Pendens CCP § 405.2) (the “Notice”)
identifying Creditor as the opposing party, stating that they had
filed an opposition to the MRS, and reciting that the property
located at 833 Clearfield Drive in Millbrae, California (the
“Property”) “is subject of litigation within the United States
Bankruptcy Court Northern District San Francisco Division.” 	See
Docket No. 116 in Case No. 09-30452, entered on December 23, 2009.
At the hearing on the MRS (on January 7, 2010), the court
directed Debtors to make adequate protection payments for December
and January (in the amount of $5,763.06 for each month) by a check
delivered to Creditor’s counsel. 	If that amount was not paid by
Signed and Filed: April 28, 2010
________________________________________
DENNIS MONTALI
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
April 29, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-30452 Doc# 184 Filed: 04/28/10 Entered: 04/29/10 14:05:56 Page 1 of
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1See this court’s Memorandum Decision Regarding Order Denying
Emergency Motion to Reconsider (Persia Avenue Property) entered on
April 21, 2010, at Docket No. 180 (setting forth this court’s
position regarding Debtors’ refusal to make adequate protection
payments).
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January 15, 2010, relief from the stay was granted. 	See Minute
Entry dated January 7, 2010. 	On January 14, 2010, the court
signed an order stating that if Debtors failed to tender the
adequate protection payment totaling $11,526.12 on or before
January 15, 2010, “Creditor shall have immediate relief.” 	See
Order at Docket No. 132. 	Ms. Aniel stated at a chapter 11 status
conference on January 14, 2010, that Debtors did not intend to
make the adequate protection payments.
On March 23, 2010, Creditor filed a Motion To Expunge Lis
Pendens (“Motion”), referring to the Notice. 	Creditor did not
provide a copy of the Notice. 	More importantly, Creditor has not
demonstrated that the Notice has been recorded in the San Mateo
County real property records.
Debtors did not appeal the January 14 order on Creditor’s
MRS. 	It is now final. 	The MRS and opposition to which Debtors
refer in the Notice is no longer pending. 	Consequently, under
California Code of Civil Procedure, the Notice is not effective.
See 3 B.E. Witkin, Cal. Proc. 5th Actions, 388 at 492-93 (2008)
(lis pendens is ineffective where action to which it pertains has
been dismissed or is no longer pending). 	Even if it were still
pending, given Debtors’ refusal to make adequate protection
payments, 1 they cannot demonstrate the probable validity of their
opposition to the MRS. 	Thus, under sections 405.32 and 405.3 of
the California Code of Civil Procedure, the Notice referring to
Case: 09-30452 Doc# 184 Filed: 04/28/10 Entered: 04/29/10 14:05:56 Page 2 of
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2In any event, the court does not believe motions for relief
from stay present “real property claims” affecting title to or
possession of real property under California Code of Civil
Procedure section 405.4. 	The Ninth Circuit has indicated that the
resolution of title or other issues regarding the validity of the
note or deed of trust is inappropriate in the context of a stay
relief hearing. 	In this circuit, relief from stay hearings are
“limited to issues of the lack of adequate protection, the
debtor’s equity in the property, and the necessity of the property
to an effective reorganization. 	Hearings on relief from the
automatic stay are thus handled in a summary fashion.” 	Johnson v.
Righetti (In re Johnson), 756 F.2d 738, 740 (9th Cir. 1985)
(overruled on other grounds by Travelers Cas. & Sur. Co. v. Pac.
Gas & Elec. Co., 549 U.S. 443 (2007)). 	“The validity of the claim
or contract underlying the claim is not litigated during the
hearing.” 	Johnson, 756 F.2d at 740 (emphasis added). 	As noted by
the Ninth Circuit Bankruptcy Appellate Panel in First Fed. Bank of
Cal. v. Robbins (In re Robbins), 310 B.R. 626, 631 (9th Cir. BAP
2004) (emphasis added):
Stay relief hearings do not involve a full adjudication
on the merits of claims, defenses, or counterclaims, but
simply a determination as to whether a creditor has a
colorable claim.
3If Debtors did record the Notice, the court believes that it
is ineffective under California Code of Civil Procedure section
405.21, which sets forth the prequisites to recording a lis
pendens: “A notice of pendency of action shall not be recorded
unless (a) it has been signed by the attorney of record, (b) it is
signed by a party acting in propria persona and approved by a
judge as provided in this section, or (c) the action is subject to
Section 405.6.” 	Here, Debtors signed the Notice in propria
persona, they did not obtain approval of this court, and this is
not an eminent domain action governed by section 405.6.
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that opposition should be expunged, 2 assuming it has been recorded
recorded in the San Mateo County Recorder’s Office. 3
In opposing the Motion, Debtors note that Creditor has filed
a motion to dismiss litigation commenced by them in the United
States District Court in March 2010 (Case No. C10-01042-JSW),
almost three months after the Notice. 	In its motion to dismiss
Creditor requested that the Notice be expunged. 	As to the Notice
with respect to the MRS, this court has the jurisdiction to
expunge it whether or not it has been recorded. 	This court defers
Case: 09-30452 Doc# 184 Filed: 04/28/10 Entered: 04/29/10 14:05:56 Page 3 of
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to the district court the decision to expunge any other notice of
lis pendens which may have been filed or recorded with respect to
the Property.
In light of the foregoing, the hearing scheduled for April
30, 2010, on Creditor’s Motion is taken OFF CALENDAR. 	Creditor is
instructed to file a supplemental declaration attaching a copy of
the Notice, setting forth the recordation information (if any) in
the real property records of San Mateo County. 	Upon filing the
supplemental declaration, Creditor should upload an order granting
the relief to the extent and for the reasons set forth in this
memorandum decision.
As Creditor did not request fees and costs under California
Code of Civil Procedure section 405.38, none will be awarded.
**END OF MEMORANDUM DECISION**
Case: 09-30452 Doc# 184 Filed: 04/28/10 Entered: 04/29/10 14:05:56 Page 4 of
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COURT SERVICE LIST
Fermin Solis Aniel
Erlinda Abibas Aniel
75 Tobin Clark Dr.
Hillsborough, CA 94010
Case: 09-30452 Doc# 184 Filed: 04/28/10 Entered: 04/29/10 14:05:56 Page 5 of
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