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Can I sell my house now that BofA gave notice of notice of voluntary dismissal without prejudice and discharge of lis pendens

Pensacola, FL |

My original mortgage company was closed by the Feds for illegal mortgage fraud (TB&W) two years ago. For the last two years I have filed numerous papers with the court asking BofA to produce loan documents and prove they own the mortgage. TB&W filed BK and was ultimately dissolved and reported my mortgage with a balance of $0 on all three credit agencies. Today I received a letter from the court stating: notice of voluntary dismissal without prejudice and discharge of lis pendens.
Does this mean that I can legally sell this house and get out of this mess before BofA tries to start over again? Please assist, I’m in the military and can’t afford a lawyer and have done all of this using the internet. If I can’t sell could you please let me know what my next step would be?
Thanks in advance,

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Attorney answers 3


I am familiar wiht the TBW situation. It is much more likely that the issues with TBW were the cause of the dismissal. I assume you are aware that its CEO is in prison, and its former loan portfolio is a bigger mess than most.

You can sell the house now, but you could have always sold the house. The problem both then and now is that there is a mortgage lien of record, and so you cannot pass good title to a buyer, and so no potential buyer can get a mortgage of their own or pay anything close to the value of the property with a delinquent mortgage on it. In order to sell, you need a solution to that issue. Depending on the details there may be one, but to find out if there is and then to pursue it if there is will take the services of a knowledgable real estate attorney. You can rent the house if it is vacant, and use the rent you receive to hire an attorney who can give you specific advice regarding your situation and then assist you if you have a basis to pursue an Action to Quiet Title now, or if you will have to wait. Timing is critical, and so is pursuing a full and complete Action to Quiet Title that resolves all potential claims. Done RIGHT this might be the answer, however you really do need to get serious professional advice in order to do that. If you can't afford it, all the more reason to rent the house for now, because done wrong will make things much worse for you.

Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.


Dear M:

In short, yes, you can sell your property if you're on the deed.

Thank you for your service to the Military. Let's remember that a "Lis Pendens" is really just a NOTICE that the property is the subject of litigation. You're on a deed, presumably, even if BOA or some other entity owns a mortgage (a lien) against the deed.

So EVEN if you have an active Lis Pendens recorded, you can still sell a property because you own it (although I haven't seen your deed or done a title search). It does make this easier that the Lis Pendens is discharged as you say; and if you want to sell your property, then list it. It's possible that it's worth less than the note or the ultimate demand amount of the note holder/loan servicer; however, maybe BoA or the appropriate affiliate may take less to SATISFY THE MORTGAGE at a closing.

In my view, the key is to get an offer that approximates the appraised or market value of the property and ensure that BoA releases you of all claims, whatsoever, whether known or unknown from now until the end of time (so to speak) including, but not limited to any and all mortgage, loan, and note balance deficiency or amounts of money of any kind (except for the net proceeds of the sale).

Many times realtors whom are in the "know" with BoA short sales, if this is what you want to do-- are people known as CDPE's or Certified Distressed Property Experts. These are realtors whom are presumaby in the "know" about short sales and other financial mechanisms that can get the short-sale job done.

Maybe the next step is to list the property with a realtor and ensure that the offer and acceptance of the property is subject to the Lender's independent approval process including releasing you from the mortgage and deficiency. Just a few ideas--this is not legal advice, and certainly you should find an affordable attorney. They exist.

Seek a Member of the Real Property, Probate and Trust Law Section of the Florida Bar.

Keith Adam Halpern, Tallahassee, Florida

I don't know the facts and this is not legal advice. Seek the advice of licensed property law attorneys immediately so they can secure your rights.

Margery Ellen Golant

Margery Ellen Golant


While I agree with this as a potential solution, it is VERY difficult and loaded with landmines. We hear all the time from people who were pushed into and through short sales where there was NO waiver of deficiency received. Realtors are not attorneys and it is against the law for them to give legal advice. Yet, they "negotiate" short sale terms with mortgage servicers, often without regard for the consequences to the borrower, who does not realize until it is too late that he or she has made his or her position much WORSE by closing a short sale, not better. If you and / or the TBW situation have managed to push the bank into withdrawing, you may be close to the point where you could clear title and not have to suffer through the bizarre, maddening and seemingly endless process of attempting a short sale that might or might not release you from the deficiency. The deficiency can be and often is the worst part of a borrower's risk. Keep in mind that realtors are commissioned sales people. They make their money from a CLOSING, whether or not that closing is in the seller's best interest. Even if you do decide to attempt a short sale, please make sure that you have a really knowledgable real estate attorney on board even before you sign up with a realtor and even before you sign any sort of contract, even though it is not final without mortgage servicer approval. The standard Florida realtors contracts are not seller-friendly, and even worse when a short sale is what is contemplated. So, you need your attorney to go through those documents and change them before you sign anything and to make sure that unless the approval fully releases you you can walk away without any cost or consequences to y ou and to protect you from the realtors and closing agents who only want you to close, whether it is in your best interest or not. While there are some situations where a properly managed and controlled short sale can ve useful to a borrower, I personally hate them because I have seen so many sellers tricked into closing a sale that they should not have closed, and that makes matters significantly worse for them.

Keith Adam Halpern

Keith Adam Halpern


The key comment from the above is the correct pitfall of "NO waiver of deficiency received." It's true that there are a great deal of issues with short sales. We're fortunate up here in Tallahassee, that I've have worked with several real estate brokerages that know their boundaries and have learned to help the process. If you want to sell the property you are NOT required to do a short sale; but as above counsel stated-- you must absolutely have an attorney verify that you wont get tagged for a later, financial claim or deficiency.


I think this voluntary dismissal presents an opportunity. It will be difficult to sell the home, but it would be even more difficult to sell during lititgation. Even though it is an opportunity, proceed with caution. You owe money to someone, they just can't prove it right now ,but they may be able to prove it later. Filing a quiet title action may put whoever owns the loan on red alert, but attempting a sale might put whoever owns the loan on red alert as well. THE BANK CAN REFILE A FORECLOSURE SUIT. The really damn weird thing is that if you wanted to file bankruptcy, you or your attorney would not know who to list as a creditor . .. because you don't know who owns the loan. . . crazy. After having read the other attorneys answers and having 20/20 hindsight, I think you should be prepared--if possible--to do short-sale (with the help of an attorney) AND/OR a quiet title action AND/OR a bankruptcy. But honestly, talk to someone up there, I can't decide if a short-sale would be better to try first or a quiet title would be better first. What I can say is that if you file a quiet title action, be ready to go all the way and you will need money. If someone pops up in the quiet title action and says, "hey that's my loan." well now you know who to list in bankrutpy. Bankrutpcy is a last resort to me, but it is very important last resort when you need it. My gut says try the short-sale first UNLESS it is your homestead and you want to keep it. You need a lot guidance on this. Becasue you got 3 attorneys on avvo wheels spinning. Well at least mine are.

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