Legal Question in Real Estate Law in California

Re: Common Counts; Lis Pendence Question

You used poor judgment in not getting legal advice when you loaned the $80K (you should have had a deed of trust made out). Now once again you want to do everything yourself. You will have to sue for the $80K and pray the other party doesn't hide the equity in the house. Hire a lawyer to do the lawsuit the right way, as you have proven by your actions that you need one.

Re: Common Counts; Lis Pendence Question

You have posted regarding your problem several times, and a consistent theme of the responses is that you need to consult and retain a lawyer. Among the reasons we here at LawGuru cannot be of much assistance is that we don't know and cannot guess what your promissory note says, whether it is sufficient to creat a security interest in particular real property, and so on.

A deed of trust is not the exclusive way to create a lien on real property to secure a loan; it is merely the most usual way. Further, the additional exercise of having it notarized and recorded is not necessary for it to be enforced against the maker; but if not recorded, any number of other creditors may have valid liens ahead of you in priority.

Now, as to the lis pendens. A lis pendens cannot be recorded and filed unless and until there is a lawsuit pending. Indeed, that's what lis pendens means (in legal Latin). The lawsuit must affect title or possession of real property. If you file a lawsuit for breach of contract or common counts and there is no real estate claim, merely a demand for $80,000, you cannot file and record a lis pendens. By the way, its modern name is "Notice of Pendency of Action" in the California codes, but attorneys and judges still use the old name because it is shorter and distinctive.

A lawyer can record and file a lis pendens, but a self-represented party must first obtain a judge's approval. This is to prevent careless or malicious use of this powerful instrument. See Code of Civil Procedure section 405.21.

The sequence of events is (1) file and serve the suit; (2) prepare and record the lis pendens; (3) file a copy with the court showing recording. Step (2) and (3) should follow step (1) ASAP, preferably the same day. A lis pendens must be served in a different manner than service of the summons and complaint, however; the lis pendens goes certified mail and the latter two by personal service or another approved method.

I will continue this response in a separate posting.

Re: Common Counts; Lis Pendence Question

OK, let's start out this continuation of my long-winded answer by reciting the mantra, "You need your own lawyer."

Common counts are broad, general forms of pleading (language for stating a complaint) that were developed in earlier centuries where pleading causes of action was very technical and a slight mistake could invalidate the plaintiff's complaint. Use of "rubber stamp" language of the common counts avoided pleading mistakes.

The common counts survive today for much the same reasons; they can be pled simply, by checking boxes on a Judicial Council form. You don't have to recite a bunch of facts. The use of common counts is, nevertheless, a technical exercise to determine which may apply and whether they are adequate and appropriate. (In your case, it might be "money lent or paid," but I would discourage your use of a do-it-yourself common count lawsuit when you clearly need personalized legal advice based on your note. You MAY have a security interest in the real property, and use of a common-count pleading would cut off your right to a lis pendens and probably to a foreclosure due to the "one form of action rule" in Code of Civil Procedure section 726.

It is permissible to plead both breach of contract and common counts in the same suit.