[WSBARP] Lis Pendens

Wed Jun 4 11:19:54 PDT 2014

Here you go Jim

RCW 4.28.328(3) provides:  Unless the claimant establishes a substantial
justification for filing the lis pendens, a claimant is liable to an
aggrieved party who prevails in defense of the action in which the lis
pendens was filed for actual damages caused by filing the lis pendens, and
in the court's discretion, reasonable attorneys' fees and costs incurred
in defending the action.  Filing a lis pendens is "substantially
justified" where the claimant has a "reasonable, good faith basis in fact
or law for believing [he has] an interest in the property." S.  Kitsap
Family Worship Ctr. v. Weir, 135 Wn.App. 900, 912, 146 P.3d 935 (2006). 

If the Lis pendens is tied to a mechanic’s lien, then

RCW 60.04.081  Frivolous claim — Procedure.

(1) Any owner of real property subject to a recorded claim of lien under
this chapter, or contractor, subcontractor, lender, or lien claimant who
believes the claim of lien to be frivolous and made without reasonable
cause, or clearly excessive may apply by motion to the superior court for
the county where the property, or some part thereof is located, for an
order directing the lien claimant to appear before the court at a time no
earlier than six nor later than fifteen days following the date of service
of the application and order on the lien claimant, and show cause, if any
he or she has, why the relief requested should not be granted. The motion
shall state the grounds upon which relief is asked, and shall be supported
by the affidavit of the applicant or his or her attorney setting forth a
concise statement of the facts upon which the motion is based.

     (2) The order shall clearly state that if the lien claimant fails to
appear at the time and place noted the lien shall be released, with
prejudice, and that the lien claimant shall be ordered to pay the costs
requested by the applicant including reasonable attorneys' fees.

     (3) If no action to foreclose the lien claim has been filed, the
clerk of the court shall assign a cause number to the application and
obtain from the applicant a filing fee pursuant to RCW 36.18.016. If an
action has been filed to foreclose the lien claim, the application shall
be made a part of that action.

     (4) If, following a hearing on the matter, the court determines that
the lien is frivolous and made without reasonable cause, or clearly
excessive, the court shall issue an order releasing the lien if frivolous
and made without reasonable cause, or reducing the lien if clearly
excessive, and awarding costs and reasonable attorneys' fees to the
applicant to be paid by the lien claimant. If the court determines that
the lien is not frivolous and was made with reasonable cause, and is not
clearly excessive, the court shall issue an order so stating and awarding
costs and reasonable attorneys' fees to the lien claimant to be paid by
the applicant.

     (5) Proceedings under this section shall not affect other rights and
remedies available to the parties under this chapter or otherwise.

Andrew Hay

Hay & Swann PLLC

201 South 34th Street

Tacoma, WA  98418

Phone: (253) 272-2400

Fax:     (253) 267-8947

 <http://www.washingtonlaw.net/> www.washingtonlaw.net

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From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of James B. Dolan
Sent: Wednesday, June 04, 2014 11:10 AM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Lis Pendens

I know I have seen this out there some where, just trying to cut down on
research time . . .

Can anyone point me in the direction of case law or other authority
regarding the filing of a frivolous lis pendens?

Thanks in advance,

Jim Dolan

Jones Butler Dolan, PS

P.O. Box 2784

720 South Main Street

Suite 233

Mount Vernon, WA 98273

Telephone: 360-336-2939

Facsimile: 360-336-2949

E-Mail:  <mailto:jbdolan at jbdolan.com> jbdolan at jbdolan.com

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As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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