Legal Question in Real Estate Law in California

Re: Lis pendens on family residence.

A Lis Pendens may only be recorded against a piece of real property when title to that property is in dispute. If ex-wife has filed an action claiming title to the house, a Lis Pendens may be recorded. If the action does not claim title, then the Lis Pendens is improper and you should file a motion to expunge it.

Remember, filing a lawsuit and winning one are two entirely different things, and ex-wife's ability to succeed depends on a variety of facts. If you have been sued and already have an attorney, this is a question you should be asking the attorney. If you have been sued and do not have an attorney, I strongly urge you to consult with one IMMEDIATELY.

Once served with a summons and complaint you must file a response with the court within 30 days. If an appropriate response is not filed, the plaintiff will be entitled to a default and default judgment against you, and you may lose substantial rights.

Re: Lis pendens on family residence.

You need to file a motion to expunge the lis pendens. A lis pendens is only legitimate if it identifies an action in which title to real property is in dispute. It is not to be used to cloud property for a civil judgment to collect child support.

I would advise you to speak to a knowledgeable attorney, to protect your rights. It sounds as if the lawsuit itself against the estate may also have some problems.

Very truly yours,

Re: Lis pendens on family residence.

If you held record title to the real property as joint tenants, upon your husband's death you would become the sole owner, without respect to anyone else's claim, but subject to any lien on the former joint tenant's interest.

So, you are not exactly home free, and the ex-wife's claim needs to be considered very carefully before assuming that either the lis pendens or the suit that permits its filing is unwarranted.

Also, a lis pendens is appropriate not only where title per se is in question, as the previous answers suggest, but also in any case where the plaintiff claims a possessory interest, including a claim by a lessee. This is not likely to be important here, but people with other issues read these replies.

So, the answer may be that the lis pendens can indeed be filed, and the suit to enforce the ex-wife's claims can be pursued in court, since when your husband passed away, you became the owner of the half interest that was encumbered by this lien. It is not an action against you personally, it is an action to enforce liens that attach to the 1/2 interest you acquired by operation of law upon your joint tenant's demise.

Now, this somewhat bad news, and I don't mean to imply that the ex-wife's suit is necessarily meritorious, or that you don't have defenses. Any lien would extend, at most (I believe) ONLY to a half interest. It's just that you are best advised if made aware that the liens on a joint tenant's interest can indeed become your problem when you acquire the interest subject to the lien. Rosy advice to the contrary can result in a botched defense.

If you can send me a copy of the complaint, I'd be willing to critique it free of charge and give you a further opinion. In any case, be sure to have an answer on file by the deadline set forth in the summons.

Re: Lis pendens on family residence.

I should amend my answer to say that while the suit has a high probability of having some merit, it is somewhat less likely that the suit asserts a claim respecting title, right of possession, or any other matter where a lis pendens is appropriate. One cannot be sure without looking at the specifics of the claims made in the lawsuit. If the ex-wife is primarily looking for a moeny judgment, the lis pendens may be unwarranted; on the other hand, if she has brought this suit to enforce a money judgment she already has by execution on the real property, the lis pendens is valid.

Re: Lis pendens on family residence.

I think for the first time in my history of posting responses to this website, I must say that I strongly DISAGREE with what Mr. Whipple has stated.

It is not ok to record a lis pendens to collect a debt, whether that debt has been reduced to a previous judgment or the current lawsuit is an attempt to collect unpaid child support and some promise to make someone a beneficiary to an insurance policy. A lis pendens is known in California's statutes as a "notice of pendency of action" and is only permitted where there is an actual claim to the real property itself. "A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged." (Code of Civ. Proc. sec. 405.20.)

If your husband's first wife already has a judgment, then all she needed to do was to record an abstract of support judgment, which would have attached as a lien to any real property that your husband had an interest in. "Except as otherwise provided by statute, a judgment lien on real property is created under this section by recording an abstract of a money judgment with the county

recorder." (Code of Civ. Proc. sec. 697.310 subd. (a).) There is no such thing as a second action to cloud the title to the real property, based on an earlier judgment.

If your husband died, and you have recorded an Affidavit of Death of Joint Tenant, abstracts of judgment will not attach to your interest if they are recorded after your Affidavit. Your husband's interest in the property passed to you by right of survivorship, outside of probate, and did so by operation of law.

In 1956, Justice Traynor wrote that recording a lis pendens was absolutely privileged by the litigation privilege of Civil Code section 47. (Albertson v. Raboff (1956) 46 Cal.2d 375.)

It must be noted that after Justice Traynor declared lis pendens to be absolutely privileged, the number of recordations of false lis pendens increased dramatically, a boon to plaintiff�s attorneys in litigation having no relation to quiet title. In the wake of this chaos, the Legislature amended Civil Code section 47, which now provides that �[a] recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.� (Civ. Code sec. 47 subd. (b)(4).)

Many attorneys are unaware of this change in the law, having failed to keep up with the developments since Albertson v. Raboff.

There is authority that an attorney who records a lis pendens that has no relation to a dispute over title to real property can be subject to sanctions and bar discipline.

Be careful of any attorney who tells you that it is ok to record a lis pendens to aid in collecting a judgment or in a situation that does not involve a dispute to title to real property. IT IS NOT OK.

Very truly yours,