[WSBARP] Lis pendens
nestor at pplsweb.com
nestor at pplsweb.com
Thu Mar 1 12:37:59 PST 2018
Thanks Douglas. This goes back to the issue of the Defendant threatening fees and costs to release or discharge the Lis Pendens. Would you release or discharge the lis pendens in this circumstance?
Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Douglas W. Scott
Sent: Thursday, March 1, 2018 12:16 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Lis pendens
Since the bond gets recorded in the Recorder’s office, contains a description of the lien and a legal description of the property, plus guarantees payment of any Judgment (60.04.161) this in and of itself, provides any future purchaser with notice.
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 <http://www.davisscottlaw.com/>
From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com <mailto:nestor at pplsweb.com>
Sent: Thursday, March 01, 2018 10:54 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Lis pendens
Carmen,
Thanks for the analysis. On a construction lien even if not required, but because of RCW 60.04.141 I would file a Lis Pendens to put the world on notice that the lien is being foreclosed. As for the bond in this case, I have seen Defendants request the judge to release the Lis Pendens by posting a bond in the case as security for the release and recording a notice that the lien has been “bonded off”.
Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary
ATTENTION - This e-mail message and any attachment to this e-mail message may contain confidential information that is legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at the phone numbers provided herein and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender.
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From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of Carmen Rowe
Sent: Thursday, March 1, 2018 10:10 AM
To: wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Lis pendens
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 <mailto:Carmen at GryphonLawGroup.com>
Mailing address: 1673 S. Market Blvd. #202, Chehalis, WA 98532
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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 <mailto:carmen at gryphonlawgroup.com> >
To: wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Lis Pendens
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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 <tel:%28360%29%20669-3576> (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.
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Message: 2
Date: Wed, 28 Feb 2018 05:56:46 +0000
From: "James L. Strichartz" <jim at condo-lawyers.com <mailto:jim at condo-lawyers.com> >
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Lis Pendens
Message-ID: <E0283E85-1203-4890-8617-1B7F29AF70D0 at condo-lawyers.com <mailto:E0283E85-1203-4890-8617-1B7F29AF70D0 at condo-lawyers.com> >
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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> <mailto: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 <https://docs.google.com/uc?export=download&id=0B-SsegebS6iBQmkwSkhNWFdCaWM&revid=0B-SsegebS6iBSWFDWVhkc3B3MURTV3h6QUR4OXJQUnhrRVp3PQ> &id=0B-SsegebS6iBQmkwSkhNWFdCaWM&revid=0B-SsegebS6iBSWFDWVhkc3B3MURTV3h6QUR4OXJQUnhrRVp3PQ]
Phone: (360) 669-3576 <tel:%28360%29%20669-3576> (direct cell)
Email: Carmen at GryphonLawGroup.com<mailto: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.
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Message: 3
Date: Wed, 28 Feb 2018 06:20:53 +0000
From: Kevin Winters <Kevin at law-hawks.com <mailto:Kevin at law-hawks.com> >
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Lis Pendens
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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 <tel:206-367-5000> phone
206-367-4005 <tel:206-367-4005> fax
kevin at law-hawks.com <mailto:kevin at law-hawks.com> <mailto:kevin at law-hawks.com <mailto:kevin at law-hawks.com> >
www.hawkeslawcenter.com <http://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 <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> <mailto: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 <tel:%28360%29%20669-3576> (direct cell)
Email: Carmen at GryphonLawGroup.com<mailto: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.
_______________________________________________
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Message: 4
Date: Wed, 28 Feb 2018 15:34:38 +0000
From: Patrick McDonald <pmcdonald at podymcdonaldlaw.com <mailto:pmcdonald at podymcdonaldlaw.com> >
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Lis Pendens
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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 <tel:206-467-1559>
F: 206-467-4489 <tel:206-467-4489>
From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto: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 <mailto: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 <tel:206-367-5000> phone
206-367-4005 <tel:206-367-4005> fax
kevin at law-hawks.com <mailto:kevin at law-hawks.com> <mailto:kevin at law-hawks.com <mailto:kevin at law-hawks.com> >
www.hawkeslawcenter.com <http://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 <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> <mailto: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> <mailto: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 <tel:%28360%29%20669-3576> (direct cell)
Email: Carmen at GryphonLawGroup.com<mailto: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
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Message: 5
Date: Wed, 28 Feb 2018 10:42:49 -0800
From: "Josh Grant" <jgrant at accima.com <mailto:jgrant at accima.com> >
To: "wsbar" <wsbarp at lists.wsbarppt.com <mailto: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 <tel:509%20647%205578>
fax 509 647 2734 <tel:509%20647%202734>
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End of WSBARP Digest, Vol 41, Issue 26
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