Legal Question in Real Estate Law in California

Re: Trustees Foreclosure Sale and Lis Pendens

I regret that I cannot give you a proper answer, but this is a matter for a specialist in business law (which I am not).

I know that you have filed your mechanic's lien and lis pendens properly, but what happens next is where I have no valid knowledge.

Please resubmit under the heading of business law, where I am sure you can get a proper answer.

Good luck!

Re: Trustees Foreclosure Sale and Lis Pendens

Your mechanic's lien and lis pendens are probably junior to the lien of the mortgage being foreclosed. A senior lienholder can sell the security by foreclosure, and if the proceeds are insufficient to pay you as well as all senior claims and costs of foreclosure, you are considered a "sold out junior" and are left with an unsecured claim against the party with whom you contracted.

As to your lawsuit, whether it is moot or not depends upon how it was worded and what claims were asserted. There are, I suppose, three possibilities. The first is that the suit asserts no claim with continuing viability because it relied exclusively on causes of action assuming the continued existence of your collateral. In that case, you would have to re-file. The second possibility is that you have pleaded breach of contract claims and asked for damages that are independent of the assumption that there is collateral and that you are enforcing a lien, in addition to claims based on your right to foreclose. In that case, you can proceed and simply not pursue the now-hopeless claims in court. Finally, there is a middle ground that might be your best bet; that is to file and serve an amended complaint, adding, removing and deleting causes of action and allegations as necessary to conform to the new reality.

All of this is fairly complex and I think if you are self-represented it is time to retain a lawyer.

Re: Trustees Foreclosure Sale and Lis Pendens

You can pursue the owner, and his prime contractor, if any for a breach of contract. If you have not plead this cause of action, you need to amend the complaint to assert it. If there has been no answer to your original action to foreclose the mechanic's lien, you can do this as a matter of right. If an answer has been filed, you will need to file a motion to seek leave of court to file an amended complaint.

I would not pursue this without an attorney.

Very truly yours,