Lucore v. Bank of America, N.A.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL M. LUCORE, Case No.: 22-CV-220 TWR (MDD)

12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE CATAMOUNT’S EX PARTE APPLICATION FOR ORDER 14 BANK OF AMERICA, N.A.; WELLS TO EXPUNGE NOTICE OF INTENT FARGO BANK, N.A. AS TRUSTEE 15 TO PRESERVE INTEREST, FOR THE CERTIFICATEHOLDERS OF (2) GRANTING CATAMOUNT’S EX 16 THE LMT 2006-9 TRUST; PARTE APPLICATION FOR AN CATAMOUNT PROPERTIES 2018 17 ORDER SHORTENING TIME, AND LLC; and DOES 1 through 50, inclusive, (3) FOR CATAMOUNT TO SHOW 18 Defendants. CAUSE 19 (ECF Nos. 32, 33) 20 21 Presently before the Court are the Motion to Expunge Notice of Intent to Preserve 22 Interest (“Mot.,” ECF No. 32), which is noticed for a hearing on December 1, 2022, and 23 Ex Parte Application for Leave to Request Order and for Order to Expunge Notice of Intent 24 to Preserve Interest or, in the Alternative, for Order Shortening Time to Hear the Motion 25 (“Ex Parte App.,” ECF No. 33), which was unilaterally noticed for a hearing on 26 October 21, 2022, filed by Defendant Catamount Properties 2018 LLC (“Catamount”). In 27 short, Catamount asks the Court to expunge a Notice of Intent to Preserve Interest (the 28 “Notice of Intent”) regarding the real property located at 10657 Felix Drive, Santee, CA 1 92071 (the “Property”) that Plaintiff Paul M. Lucore recorded on October 6, 2022, pursuant 2 to the Marketable Record Title Act, California Civil Code §§ 880.020–887.090 because 3 escrow on Catamount’s sale of the Property to a third-party purchaser is scheduled to close 4 on October 21, 2022. Although the Court attempted to set a hearing on the Ex Parte 5 Application for October 21, 2022, at 3:00 p.m., Plaintiff understandably informed the Court 6 that he could not be prepared to argue his position on such short notice. 7 In light of the Court’s September 12, 2022 Order (1) Granting Defendants’ Motions 8 to Dismiss, and (2) Dismissing with Prejudice Plaintiff’s First Amended Complaint, the 9 Court has little doubt that Plaintiff did not act in good faith when he recorded his Notice of 10 Intent through Steven H. Lucore, Sr. on October 6, 2022.1 (See generally ECF No. 33-2 at 11 8–30.) Nonetheless, the Court harbors reservations regarding its jurisdiction over this 12 matter and the propriety of ex parte relief given that Catamount has failed to demonstrate 13 that it will be irreparably prejudiced absent ex parte relief given that the harm it claims it 14 will suffer—namely, increased costs and a possible lower purchase price for the Property, 15 (see ECF No. 33-2 (“Crandall Decl.”) ¶ 11)—appears to be redressable through monetary 16 damages. Cf. Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. 17 Cal. 1995) (“[T]o justify ex parte relief . . . , the evidence must show that the moving party’s 18 cause will be irreparably prejudiced if the underlying motion is heard according to regular 19 noticed motion procedures.”). 20 The Court therefore DENIES WITHOUT PREJUDICE Catamount’s Ex Parte 21 Application; however, given the time-sensitive nature of Catamount’s Motion, the Court 22 GRANTS Catamount’s alternative request to shorten time. Accordingly, should 23 Catamount determine that it is appropriate to pursue this matter in this Court rather than 24 25 1 A search for the last name Lucore yields no results through the State Bar of California’s Attorney Search. 26 See https://apps.calbar.ca.gov/attorney/LicenseeSearch/QuickSearch?FreeText=lucore&SoundsLike= false. The Court is concerned to the extent that Plaintiff is being “represented” by non-attorney Steven H. 27 Lucore, Sr., who has called chambers several times on Plaintiff’s behalf and appears to be the owner of the telephone number and email address through which opposing counsel has contacted Plaintiff. (See 28 1 || before the Superior Court, Catamount SHALL FILE a notice to that effect on or before 2 || October 21, 2022; Plaintiff SHALL FILE an opposition to Catamount’s Motion on or 3 || before October 28, 2022; and Catamount SHALL FILE a reply in support of its Motion 4 || on or before November 4, 2022. The Court notes that, although reply briefs are generally 5 optional, should Catamount pursue this matter in this forum, the Court will ORDER 6 ||Catamount to file a reply brief TO SHOW CAUSE why this Court has subject-matter 7 jurisdiction. Catamount also should address any mandatory authorities supporting this 8 ||Court’s authority to grant it the relief it seeks, 7.e., expungement of Plaintiff's Notice of 9 Intent. Upon review of the Parties’ submissions, the Court will determine whether it is 10 |/necessary to set the Motion for a hearing or whether disposition on the papers without oral 11 |}argument is appropriate pursuant to Civil Local Rule 7.1(d)(1). 12 IT IS SO ORDERED. 13 Dated: October 20, 2022 14 J 59) 13 (re 15 Honorable Todd W. Robinson United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28