[WSBARP] Lis pendens

Thu Mar 1 10:09:45 PST 2018

I bow to the wisdom of these comments. I will humbly admit that I went off
legal logic and a general concept/understanding, and I'm not the only one
that shared the view - but doesn't mean it wasn't misplaced. Perhaps
because of the crystal clear caselaw that a lis pendens is superlative, and
unnecessary in a lien (see my case below), thus not common practice and
little reason to run into a situation that belies the misconception.

I'll even provide some legal points of contemplation, as I got curious:

See *John Morgan Const. Co. v. McDowell*, 62 Wn. App. 79 (Div 1 1991). One
contractor filed to foreclose mechanic's lien, recorded lis pendens; 2d
contractor intervened to foreclose its own lien, without recording lis
pendens. 2d contractor awarded judgment. Does not specifically address the
question, but I think the general principles lend to argument that lis
pendens is not improper (just unnecessary). (Caveat: I do think this
changes when there is a bond in place preventing foreclosure, as per the
original post; see my closing comments)

In *John Morgan*, there was a motion to restrain 2d contractor from
recovery of judgment arguing subsequent purchasers were innocent purchasers
per lis pendens statute. It's not exactly on point, but I can see an
argument that as the court addressed whether a contractor *had* to record a
lis pendens in order to preserve its action (answer: no) that hints that
one *can*.

Now, doesn't *necessarily *mean that. The question of whether the 1st
contractor's lis pendens was apparently never challenged. So the court
didn't answer that question. Just whether you had to file one.

The case confirms that a recorded lien puts any buyer on notice, and
obligation to affirm status of the lien. (see at 82-83) So that negates the
argument that a lis pendens is necessary/warranted to give someone notice
that title (ownership) may be affected by foreclosure. Court specifically
said so, and cited several authorities for it.

But again, does not answer question of whether you *can* file a lis pendens
in a lien (or other) foreclosure matter.

But, then again: court also noted that a lis pendens was permissive, and
did not affect substantive rights of the parties. So in other words does
not have to be recorded to preserve rights; and (as per specific ruling
referenced above) not required to preserve against future buyers so long as
lien in place.

One can extrapolate from this case, and I think a good argument that a lis
pendens in foreclosure *can* be recorded, but is unambiguously unnecessary
(thus perhaps why it rarely happens). I did not find any caselaw
specifically addressing the question of whether a lis pendens recorded in
foreclosure action would be improper; but only looked briefly. That said, I
think given the language above, as the lis pendens doesn't give any further
notice than the lien itself does, that it thus also doesn't over-reach,
which is the purpose I think of damages under an improper lis pendens.

That said - having gone down that road of twists and turns, on an alternate
point specific to the question at hand:

My understanding of the original post was that there was a bond in place to
cover the judgment, and question was whether lien-holder then needed to
release the lis pendens upon request of owner. I say yes, if I understood
these facts, as there would be no foreclosure and the lien at this point
only to preserve that judgment. I don't know that is still an action
affecting title? as there is no pending foreclosure. Just assurance the
lien (money judgment) will be paid upon sale, whether sale proceeds or bond.

Doesn't that put it in another realm?

Carmen Rowe, Attorney/Owner

Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

*Mailing address: *1673 S. Market Blvd. #202, Chehalis, WA 98532
*Olympia/Lacey office: *1415 College Street SE, Lacey, WA 98503
*Seattle office: *1001 4th Avenue, Suite 3200, Seattle, WA 98154

*We also offer virtual meeting options, and are often available to meet
with you in an alternate location convenient to you.*

*Privileged and confidential: *This message is confidential. If you receive
this message in error, please let us know, and please delete and disregard
any information it contains. We thank you for your respect in not sharing
this email with anyone.

If we are communicating with you regarding a debt or monies owed, THIS MAY
BE AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION WILL BE USED FOR THAT
PURPOSE. You have the right to seek legal advice from an attorney. To the
extent that the Federal Fair Debt Collection Practices Act applies, this
firm is acting as a debt collector for the firm's client named above. Any
information obtained will be used for collection purposes.

On Wed, Feb 28, 2018 at 12:00 PM, <wsbarp-request at lists.wsbarppt.com> wrote:

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> Today's Topics:
>
>    1. Lis Pendens (Carmen Rowe)
>    2. Re: Lis Pendens (James L. Strichartz)
>    3. Re: Lis Pendens (Kevin Winters)
>    4. Re: Lis Pendens (Patrick McDonald)
>    5. Shared well agreement - to supply water in future (Josh Grant)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Tue, 27 Feb 2018 12:42:09 -0800
> From: Carmen Rowe <carmen at gryphonlawgroup.com>
> To: wsbarp at lists.wsbarppt.com
> Subject: [WSBARP] Lis Pendens
> Message-ID:
>         <CAMTVkhB09bXtj2y1sCeTsagi5JDyjZdFkE3DstOGKTS6BwsMDQ at mail.
> gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Forgive not including the chain of excellent comments below, I'm on digest
> and did not want to inundate with the full digest chain ....
>
> But I wanted to echo Tom's analysis. I think any lien that does not have to
> do with rights to title (easement, adverse possession, real estate
> contract, etc.) is not an appropriate basis for a lis pendens. Anything
> that is a claim that *in and of itself* affects the scope of someone's
> rights to property is a claim dealing with title.
>
> The lien itself might impact title in a technical way, but only in sense of
> saying the property is encumbered by *a financial obligation. *that's not
> what the statute contemplates. It is not a dispute as to extent of or
> rights in title someone may have.
>
> And - why risk it? If there is a recorded lien, there is notice to the
> world, and will run with the property. A lis pendens is redundant, and
> risks attorney's fees etc. I once obtained a judgment for a client covering
> nearly $17,000 in attorney's fees (every dime incurred) challenging a lis
> pendens inappropriately filed. Different facts, but same legal principles
> discussed here. I just don't see the value. And I just don't see how you
> get around the fact that this is all about recovery of money.
>
>
> Carmen Rowe, Attorney/Owner
>
>
> Phone: (360) 669-3576 (direct cell)
> Email:  Carmen at GryphonLawGroup.com
>
> *Mailing address: *1673 S. Market Blvd. #202, Chehalis, WA 98532
> *Olympia/Lacey office: *1415 College Street SE, Lacey, WA 98503
> *Seattle office: *1001 4th Avenue, Suite 3200, Seattle, WA 98154
>
>
> *We also offer virtual meeting options, and are often available to meet
> with you in an alternate location convenient to you.*
>
> *Privileged and confidential: *This message is confidential. If you receive
> this message in error, please let us know, and please delete and disregard
> any information it contains. We thank you for your respect in not sharing
> this email with anyone.
>
> If we are communicating with you regarding a debt or monies owed, THIS MAY
> BE AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION WILL BE USED FOR THAT
> PURPOSE. You have the right to seek legal advice from an attorney. To the
> extent that the Federal Fair Debt Collection Practices Act applies, this
> firm is acting as a debt collector for the firm's client named above. Any
> information obtained will be used for collection purposes.
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> ------------------------------
>
> Message: 2
> Date: Wed, 28 Feb 2018 05:56:46 +0000
> From: "James L. Strichartz" <jim at condo-lawyers.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Lis Pendens
> Message-ID: <E0283E85-1203-4890-8617-1B7F29AF70D0 at condo-lawyers.com>
> Content-Type: text/plain; charset="utf-8"
>
> Carmen,
>
> Greetings from the middle of the Indian Ocean. I respectfully disagree. An
> action to foreclose a lien is an action that effects the title to real
> property. If it goes to a decree of foreclosure and sale, it divests the
> owner of title.
>
> Jim Strichartz
>
>
> On Feb 28, 2018, at 12:45 AM, Carmen Rowe <carmen at gryphonlawgroup.com<
> mailto:carmen at gryphonlawgroup.com>> wrote:
>
> Forgive not including the chain of excellent comments below, I'm on digest
> and did not want to inundate with the full digest chain ....
>
> But I wanted to echo Tom's analysis. I think any lien that does not have
> to do with rights to title (easement, adverse possession, real estate
> contract, etc.) is not an appropriate basis for a lis pendens. Anything
> that is a claim that in and of itself affects the scope of someone's rights
> to property is a claim dealing with title.
>
> The lien itself might impact title in a technical way, but only in sense
> of saying the property is encumbered by a financial obligation. that's not
> what the statute contemplates. It is not a dispute as to extent of or
> rights in title someone may have.
>
> And - why risk it? If there is a recorded lien, there is notice to the
> world, and will run with the property. A lis pendens is redundant, and
> risks attorney's fees etc. I once obtained a judgment for a client covering
> nearly $17,000 in attorney's fees (every dime incurred) challenging a lis
> pendens inappropriately filed. Different facts, but same legal principles
> discussed here. I just don't see the value. And I just don't see how you
> get around the fact that this is all about recovery of money.
>
>
> Carmen Rowe, Attorney/Owner
>
> [https://docs.google.com/uc?export=download&id=0B-
> SsegebS6iBQmkwSkhNWFdCaWM&revid=0B-SsegebS6iBSWFDWVhkc3B3MURTV3h6
> QUR4OXJQUnhrRVp3PQ]
> Phone: (360) 669-3576 (direct cell)
> Email:  Carmen at GryphonLawGroup.com<mailto:Carmen at GryphonLawGroup.com>
>
> Mailing address: 1673 S. Market Blvd. #202, Chehalis, WA 98532
> Olympia/Lacey office: 1415 College Street SE, Lacey, WA 98503
> Seattle office: 1001 4th Avenue, Suite 3200, Seattle, WA 98154
>
> We also offer virtual meeting options, and are often available to meet
> with you in an alternate location convenient to you.
>
> Privileged and confidential: This message is confidential. If you receive
> this message in error, please let us know, and please delete and disregard
> any information it contains. We thank you for your respect in not sharing
> this email with anyone.
>
> If we are communicating with you regarding a debt or monies owed, THIS MAY
> BE AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION WILL BE USED FOR THAT
> PURPOSE. You have the right to seek legal advice from an attorney. To the
> extent that the Federal Fair Debt Collection Practices Act applies, this
> firm is acting as a debt collector for the firm's client named above. Any
> information obtained will be used for collection purposes.
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp
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> ------------------------------
>
> Message: 3
> Date: Wed, 28 Feb 2018 06:20:53 +0000
> From: Kevin Winters <Kevin at law-hawks.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Lis Pendens
> Message-ID:
>         <CA8545A3A5EBB54C90C05FA1701FCACC81F09A99 at HLFSERVER1.law-
> hawks.local>
> Content-Type: text/plain; charset="utf-8"
>
> So by this reasoning, banks enforcing deeds of trust, either judicially or
> non-judicially, always first file a lis pendens?  not from what I have seen
> . . .
>
> Kevin M. Winters
> Hawkes Law Firm, P.S.
> 19909 Ballinger Way N.E.
> Shoreline, WA 98155
> 206-367-5000 phone
> 206-367-4005 fax
> kevin at law-hawks.com<mailto:kevin at law-hawks.com>
> www.hawkeslawcenter.com<http://www.hawkeslawcenter.com/>
>
> NOTICE: The information contained in this email may be confidential and/or
> legally privileged.  It has been sent for the sole use of the intended
> recipient(s). If the reader of this message is not an intended recipient,
> you are hereby notified that any unauthorized review, use, disclosure,
> dissemination, distribution, or copying of this communication, or any of
> its contents, is strictly prohibited.  If you have received this
> communication in error, please contact the sender by reply email and
> destroy all copies of the original message.
>
>
>
> From: James L. Strichartz [mailto:jim at condo-lawyers.com]
> Sent: Tuesday, February 27, 2018 9:57 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Lis Pendens
>
> Carmen,
>
> Greetings from the middle of the Indian Ocean. I respectfully disagree. An
> action to foreclose a lien is an action that effects the title to real
> property. If it goes to a decree of foreclosure and sale, it divests the
> owner of title.
> Jim Strichartz
>
>
> On Feb 28, 2018, at 12:45 AM, Carmen Rowe <carmen at gryphonlawgroup.com<
> mailto:carmen at gryphonlawgroup.com>> wrote:
> Forgive not including the chain of excellent comments below, I'm on digest
> and did not want to inundate with the full digest chain ....
>
> But I wanted to echo Tom's analysis. I think any lien that does not have
> to do with rights to title (easement, adverse possession, real estate
> contract, etc.) is not an appropriate basis for a lis pendens. Anything
> that is a claim that in and of itself affects the scope of someone's rights
> to property is a claim dealing with title.
>
> The lien itself might impact title in a technical way, but only in sense
> of saying the property is encumbered by a financial obligation. that's not
> what the statute contemplates. It is not a dispute as to extent of or
> rights in title someone may have.
>
> And - why risk it? If there is a recorded lien, there is notice to the
> world, and will run with the property. A lis pendens is redundant, and
> risks attorney's fees etc. I once obtained a judgment for a client covering
> nearly $17,000 in attorney's fees (every dime incurred) challenging a lis
> pendens inappropriately filed. Different facts, but same legal principles
> discussed here. I just don't see the value. And I just don't see how you
> get around the fact that this is all about recovery of money.
>
>
> Carmen Rowe, Attorney/Owner
> [Image removed by sender.]
> Phone: (360) 669-3576 (direct cell)
> Email:  Carmen at GryphonLawGroup.com<mailto:Carmen at GryphonLawGroup.com>
>
> Mailing address: 1673 S. Market Blvd. #202, Chehalis, WA 98532
> Olympia/Lacey office: 1415 College Street SE, Lacey, WA 98503
> Seattle office: 1001 4th Avenue, Suite 3200, Seattle, WA 98154
>
> We also offer virtual meeting options, and are often available to meet
> with you in an alternate location convenient to you.
>
> Privileged and confidential: This message is confidential. If you receive
> this message in error, please let us know, and please delete and disregard
> any information it contains. We thank you for your respect in not sharing
> this email with anyone.
> If we are communicating with you regarding a debt or monies owed, THIS MAY
> BE AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION WILL BE USED FOR THAT
> PURPOSE. You have the right to seek legal advice from an attorney. To the
> extent that the Federal Fair Debt Collection Practices Act applies, this
> firm is acting as a debt collector for the firm's client named above. Any
> information obtained will be used for collection purposes.
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp
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> ------------------------------
>
> Message: 4
> Date: Wed, 28 Feb 2018 15:34:38 +0000
> From: Patrick McDonald <pmcdonald at podymcdonaldlaw.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Lis Pendens
> Message-ID:
>         <BN6PR1301MB19565B3AC41E683B3E4380C4BDC70 at BN6PR1301MB1956.
> namprd13.prod.outlook.com>
>
> Content-Type: text/plain; charset="utf-8"
>
> I agree with Jim. A lis pendens should be recorded to give notice when a
> lien is foreclosed judicially.
>
> Recording a lis pendens has a very different purpose than recording of a
> lien.  While the lien simply gives notice of the encumbrance, the lis
> pendens gives notice of a pending action to foreclose the lien. After the
> lis pendens is recorded, any subsequent encumbrancer or purchaser of the
> property is bound by the result of the lawsuit even though they are not
> named parties. As a result, the plaintiff doesn?t need to keep checking the
> auditor?s records every day while the lawsuit is pending to see if he or
> she needs to add additional parties to the lawsuit and serve them with
> process.
>
> A lis pendens would not be necessary for a nonjudicial foreclosure. The
> Deed of Trust Act prescribes the types of notice and the manner in which
> they must be provided.
>
> Patrick McDonald
> _______________________
> Pody & McDonald, PLLC
> 1200 Fifth Avenue, Suite 1410
> Seattle, WA 98101-3106
> T: 206-467-1559
> F: 206-467-4489
>
> From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com] On Behalf Of Kevin Winters
> Sent: February 27, 2018 10:21 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Lis Pendens
>
> So by this reasoning, banks enforcing deeds of trust, either judicially or
> non-judicially, always first file a lis pendens?  not from what I have seen
> . . .
>
> Kevin M. Winters
> Hawkes Law Firm, P.S.
> 19909 Ballinger Way N.E.
> Shoreline, WA 98155
> 206-367-5000 phone
> 206-367-4005 fax
> kevin at law-hawks.com<mailto:kevin at law-hawks.com>
> www.hawkeslawcenter.com<http://www.hawkeslawcenter.com/>
>
> NOTICE: The information contained in this email may be confidential and/or
> legally privileged.  It has been sent for the sole use of the intended
> recipient(s). If the reader of this message is not an intended recipient,
> you are hereby notified that any unauthorized review, use, disclosure,
> dissemination, distribution, or copying of this communication, or any of
> its contents, is strictly prohibited.  If you have received this
> communication in error, please contact the sender by reply email and
> destroy all copies of the original message.
>
>
>
> From: James L. Strichartz [mailto:jim at condo-lawyers.com]
> Sent: Tuesday, February 27, 2018 9:57 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Lis Pendens
>
> Carmen,
>
> Greetings from the middle of the Indian Ocean. I respectfully disagree. An
> action to foreclose a lien is an action that effects the title to real
> property. If it goes to a decree of foreclosure and sale, it divests the
> owner of title.
> Jim Strichartz
>
>
> On Feb 28, 2018, at 12:45 AM, Carmen Rowe <carmen at gryphonlawgroup.com<
> mailto:carmen at gryphonlawgroup.com>> wrote:
> Forgive not including the chain of excellent comments below, I'm on digest
> and did not want to inundate with the full digest chain ....
>
> But I wanted to echo Tom's analysis. I think any lien that does not have
> to do with rights to title (easement, adverse possession, real estate
> contract, etc.) is not an appropriate basis for a lis pendens. Anything
> that is a claim that in and of itself affects the scope of someone's rights
> to property is a claim dealing with title.
>
> The lien itself might impact title in a technical way, but only in sense
> of saying the property is encumbered by a financial obligation. that's not
> what the statute contemplates. It is not a dispute as to extent of or
> rights in title someone may have.
>
> And - why risk it? If there is a recorded lien, there is notice to the
> world, and will run with the property. A lis pendens is redundant, and
> risks attorney's fees etc. I once obtained a judgment for a client covering
> nearly $17,000 in attorney's fees (every dime incurred) challenging a lis
> pendens inappropriately filed. Different facts, but same legal principles
> discussed here. I just don't see the value. And I just don't see how you
> get around the fact that this is all about recovery of money.
>
>
> Carmen Rowe, Attorney/Owner
> [Image removed by sender.]
> Phone: (360) 669-3576 (direct cell)
> Email:  Carmen at GryphonLawGroup.com<mailto:Carmen at GryphonLawGroup.com>
>
> Mailing address: 1673 S. Market Blvd. #202, Chehalis, WA 98532
> Olympia/Lacey office: 1415 College Street SE, Lacey, WA 98503
> Seattle office: 1001 4th Avenue, Suite 3200, Seattle, WA 98154
>
> We also offer virtual meeting options, and are often available to meet
> with you in an alternate location convenient to you.
>
> Privileged and confidential: This message is confidential. If you receive
> this message in error, please let us know, and please delete and disregard
> any information it contains. We thank you for your respect in not sharing
> this email with anyone.
> If we are communicating with you regarding a debt or monies owed, THIS MAY
> BE AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION WILL BE USED FOR THAT
> PURPOSE. You have the right to seek legal advice from an attorney. To the
> extent that the Federal Fair Debt Collection Practices Act applies, this
> firm is acting as a debt collector for the firm's client named above. Any
> information obtained will be used for collection purposes.
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp
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> ------------------------------
>
> Message: 5
> Date: Wed, 28 Feb 2018 10:42:49 -0800
> From: "Josh Grant" <jgrant at accima.com>
> To: "wsbar" <wsbarp at lists.wsbarppt.com>
> Subject: [WSBARP] Shared well agreement - to supply water in future
> Message-ID: <E225BC15C7884123B4254B483C96BA64 at JoshPC>
> Content-Type: text/plain; charset="utf-8"
>
> I have a shared well agreement form for use between two adjoining property
> owners.
> What I don?t have is a shared well agreement (or other proper document)
> that the current owner will record so that she can sell one of 3 parcels
> and each parcel has the right to water from the single well and each prcel
> will have an easement etc. running with the land.
>
> anyone have a form they can share?
> thanks
>
> Josh
>
> Joshua F. Grant, PS
> Attorney at Law
> P. O. Box 619
> Wilbur, WA 99185
> tel 509 647 5578
> fax 509 647 2734
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>
> _______________________________________________
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> End of WSBARP Digest, Vol 41, Issue 26
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>
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