Tag Archives: civil code 405.21

Lis Pendens

legal contract

First of all, I wish to express my profound gratitude for all of those people throughout the world who have registered to become members of this blog, which deals with my court history of the fraudulent and illegal foreclosure procedures by Wells Fargo Bank’s attempt to wrongly foreclose on my property, to which I subsequently fought against them in court while acting as my own attorney.  I am also very grateful and humbled by the emails I am receiving.  Please grant me time to respond to your email inquiries, but I will do so at my earliest convenience.

As we have found through my learning of the statute of frauds, a law which dates back to 1677, that any transfer of any rights or privileges to a real estate contract must be done in writing and signed by all parties involved.  This is so that all parties involved in the transaction become privy to the changes and knowledgeable of any changes and of any new parties in the contract.

In US law, a lis pendens is a written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it. The notice is usually filed in the county land records office. Recording a lis pendens against a piece of property alerts a potential purchaser or lender that the property’s title is in question, which makes the property less attractive to a buyer or lender. After the notice is filed, anyone who nevertheless purchases the land or property described in the notice takes subject to the ultimate decision of the lawsuit.

Lis pendens is Latin for “suit pending.” This may refer to any pending lawsuit or to a specific situation with a public notice of litigation that has been recorded in the same location where the title of real property has been recorded. This notice secures a plaintiff’s claim on the property so that the sale, mortgage, or encumbrance of the property will not diminish plaintiff’s rights to the property, should the plaintiff prevail in its case. In some jurisdictions, when the notice is properly recorded, lis pendens is considered constructive notice to the other litigants or other unrecorded or subordinate lienholders. The term is sometimes abbreviated as “lis pend“.

The County Recorder’s Office will record a lis pendens upon request of anyone who claims to be entitled to do so (e.g. because they have filed a lawsuit). If someone else with an interest in the property (e.g. the owner) believes the lis pendens is not proper, they can then file suit to have it expunged.

Some states’ lis pendens statutes require the filer of the notice, in the event of a challenge to the notice, to establish that it has probable cause or a good likelihood of success on the merits of its case in the underlying lawsuit; other states do not have such a requirement.

This specific document had been on the forefront of the paralegal’s mind, every time we would meet, as we were preparing documents to initially file the case.  Due to the fact that there was a scheduled date set for the sale of the property, we had been under the gun to try to get all of the necessary paperwork put together in order to file the lawsuit.  The paralegal made sure to impress upon us the necessity to look into also filing a lis pendens, after we would file our case paperwork.  This is because a lis pendens can be a legal document that helps to stop the foreclosure process in its tracks and this is because a buyer at a foreclosure sale is much less likely to purchase a property in foreclosure if it has outstanding liens or litigation against the property thereby they would move on to another property to purchase or rather wait until the liens or litigation on the property would get settled.  Also, the parties orchestrating the foreclosure procedure might be inclined to take the property off of the foreclosure timeline due to the fact that they would hold liability as to their actions if they were to wrongly or illegally sell off a property that then ends up being litigated in favor of the plaintiffs.

One thing I found throughout my legal history is that the judicial system does not make, or wish to make, things easy for someone who is within the system acting as their own attorney.  The system is filled with judges with whom all judges used to be lawyers.  Those judges understand that when someone is litigating their case as a Pro Per, or Pro Se, they are taking business away from a lawyer.  The judge’s are simply looking out for their fellow golfing buddies.  So, it is simple that judges can, and do, make the process difficult for those acting on their own behalf.  Perhaps so that the pro per party might finally end up getting fed up with the system and subsequently would eventually hire an attorney.  It is also because, judges do not wish to deal with people who don’t understand the legal procedures or perhaps do not have the acumen to argue their case in the same manner that a trained lawyer might.  This would mean that the judge would have to actually do some real thinking in order to see within the thoughts and reasonings of a “normal” person, rather than the systemic legal authorities that are quoted on a daily basis which make a judge’s decision easy.  Plus, the judge will be less likely to get any payola under the table in order to settle or end a case from a “normal” citizen, who is acting as their own attorney, than they might receive a payoff from a corporate law firm with whom the judge just may have stock in their own personal retirement portfolio of that financial institution.  But, I digress…

I say all of this because only when I went to the county recorder’s office to file our lis pendens did I find that, in the state of CA, according to California Civil Code of Procedure 405.21 states, that if you are acting as your own attorney you must have a judge review your case and sign off on your lis pendens before you can make it active and record it into the public record.  Therefore, we had to run back to and around the courthouse looking for an available sitting judge who would review the case documents in order to then sign off on the lis pendens.  There was no guarantee that the judge would sign, and we were at the last day prior to the scheduled sale of the property which was to take place in only a few short days after the weekend.  The pressure was on.

We finally were able to see the judge.  He took our case file to his chambers and reviewed the documents for about 45 minutes before he then came out of his chambers, handed the docs to the court secretary, who then asked us to approach.  She gave us our documents.  We turned the front page over to the next to see.  The judge had signed his approval and we ran over to the County Recorder’s office and filed the lis pendens and made it part of the public record.

My filed Lis Pendens

One thing I wanted to impress a point on was the fact that if someone else with an interest in the property believes the lis pendens is not proper, they can then file suit to have it expunged.  I wanted to state that Wells Fargo Bank, after we filed our lawsuit and moved it forward through the life of the lawsuit, they never attempted to have the lis pendens expunged.  Interesting, to say the least.

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©copyright 2014 Doug Boggs