[WSBARP] lis pendens

[Tom Westbrook]

IMHO – your client had no legal right to record a Lis Pendens as that is
only for circumstances where the issue is about ownership of the property;
not a lien. Let the argument begin 😊



A lis pendens is a mechanism for giving notice that a lawsuit that concerns
title to real property has been filed. RCW 4.28.320. A lis pendens may be
filed “[a]t any time after an action affecting title to real property has
been commenced.” RCW 4.28.320. But a party who files a wrongful lis pendens
risks liability in damages for doing so. RCW 4.28.328 governs, and it
provides in pertinent part,

(a) “Lis pendens” means a lis pendens filed under RCW 4.28.320 . . . or
other instrument having the effect of clouding the title to real property,
however named. . . .

(2) A claimant in an action not affecting the title to real property
against which the lis pendens was filed is liable to an aggrieved party who
prevails on a motion to cancel the lis pendens, for actual damages caused
by filing the lis pendens, and for reasonable attorneys’ fees incurred in
canceling the lis pendens.

(3) 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.



Washington courts have not established either a specific definition or
guiding criteria to determine when and whether an action “affect[s] title
to real property.” RCW 4.28.320. But our courts, in construing other
aspects of our lis pendens statutes, have relied on persuasive authority
from Arizona, whose own lis pendens law is similar to ours. See *Schwab v.
Seattle*, 64 Wn. App. 742, 748, 826 P.2d 1089 (1992). In determining
whether a lis pendens was wrongfully recorded, their courts also consider
whether the action is one “‘affecting title to real property.’” *Santa Fe
Ridge Homeowners’ Ass’n v. Bartschi*, 219 Ariz. 391, 395-96, 199 P.3d 646
(Ct. App. 2008) (quoting ARIZ. REV. STAT. ANN. § 12-1191(A)).



Sincerely,



Tom



Thomas J. Westbrook

Attorney at Law



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Rodgers, Kee & Card, P.S.

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502



Phone: 360-352-8311

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Email: tjw at buddbaylaw.com

Skype: thomas.westbrook

www.buddbaylaw.com



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*From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Douglas W. Scott
*Sent:* Sunday, February 25, 2018 11:35 AM
*To:* WSBA Real Property Listserv (wsbarp at lists.wsbarppt.com) <
wsbarp at lists.wsbarppt.com>
*Subject:* [WSBARP] lis pendens



Client filed Lien for excavation work against a subdivision.  I foreclosed
on Lien in KC Superior and recorded a Lis Pendens.  Attorney for owner will
issue a 1 1/2 times bond and has demanded that the Lis Pendens then be
dismissed as it is interfering with sales of the lots or he will claim atty
fees under RCW 4.28.328.  I see no need to remove the lis pendens as the
bond is supposed to allow the properties to sell since the bond now
guarantees payment of any judgment.  Does my client have exposure for not
removing the lis pendens after the bond is in place?



Douglas W. Scott

Law Offices of Douglas W. Scott

Windermere Building

1810 15th Place NW, Suite 203
Issaquah, Washington, 98027
V.  425.392.8550
F.  425-392-2829

www.davisscottlaw.com
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