My brother purchased a property and there is a Lis Pendens recorded. The Lis Pendens has to do with a civil case where the prior owners sued the lender for "deceitful lending practices". In the end the old owners lost the case. Their attorney has not released the Lis Pendens and has made it quite clear he will not do it unless my brother offers him something, his words were, "what is it worth to you?" I believe my brother now needs to go to the court to get it expunged. My question... is this correct? And if so how does he go about getting it expunged in San Mateo County?
Thanks in advance- Del
A Motion to Expunge Lis Pendens would normally be what is done if the lawsuit is still pending. However, you indicate that the owners lost the case. If so, a Motion to Expunge Lis Pendens cannot be granted after a lawsuit has been dismissed. This is because the court no longer has jurisdiction to rule on such a motion.
Pursuant to Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405, a dismissal without prejudice terminates the Court’s jurisdiction as to all parties, with certain exceptions. Pursuant to the Rutter Group Practice Guide, Civil Procedure Before Trial, §§11:34.11, et seq., those exceptions include (a) a motion for relief from dismissal, (b) a defendant’s motion to recover on bond, (c) a defendant’s motion for costs.
Moreover, there is nothing under California Code of Civil Procedure §405.30, et seq., (governing motions to expunge lis pendens) conferring jurisdiction on the court when there is no pending action. Indeed, several sections contemplate a “pending” action. See, for example, §405.30, permitting a “party” to apply to the “court in which the action is pending” to apply to expunge the lis pendens.
I think your brother may just need to get his own attorney and duke it out with the attorney who refuses to remove the Notice of Lis Pendens.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
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Your brother should consult with an attorney. He may have claims against the lender for slander of title and similar theories arising out of maintaining a wrongful lis pendens.
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