My attorney filed a "lis pending" or lien against my house to keep it from forclosing during litigation with the bank.
Oceanside, CA |
It was supposed to be removed once the settlement agreement was reached. The attorney never removed it. We are trying to short sale our home and the attorney is refusing to remove it until our bill is paid. Is this legal?
Under the California Code of Civil Procedure, a "lis pendens" or notice of pendency of action may be filed/recorded by a party to an action that asserts a real property claim. In order to file the notice, the claim must affect title to, or the right to possession of, specific real property. If a lis pendens is improperly recorded, the party who recorded the notice may be liable for slander of title.
In the circumstances you have described, I'm not sure how your attorney's claims could be affecting title to your home. You should consult with another attorney to evaluate what sort of lien your attorney put on your home and whether it is appropriate.
You can also contact the County Recorders office to determine in whose name the lis pendens was recorded. If it is in the name of one of the parties to the action, since the action has come to an end, that party can and should remove the lis pendens. if it is in the name of any person other than the parties to the action, you should immediately get the help of an attorney ro determine how and why your attorney did so.
While I cannot give you legal advice in this forum, in addition to what other counsel have stated I would add that you need to look at whatever agreement you signed with your attorney to secure his or her fees. Did you secure the fees with an interest in the property?
I think you should take your paperwork to a new attorney and have them look it over.
THIS RESPONSE IS INTENDED TO CONVEY GENERAL INFORMATION ONLY. IT SHOULD NOT BE RELIED UPON OR TAKEN AS LEGAL ADVICE. FURTHER, THIS RESPONSE IS NOT INTENDED TO AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Unless your fee agreement provided your attorney a real property lien against your residence to secure payment of his or her fees - which would be highly unusual - I cannot think of any legitimate reason for your attorney to refuse your request to expunge it. Frankly, your attorney probably shouldn't have recorded it for purposes of preventing a foreclosure either. In any event, you should immediately consult another attorney.
It does sound like you need to speak with another attorney about your former attorneys actions. As to the lis pendens, this can be removed either by the person who recorded it by the filing of a "release of lis pendens", or if a party files a motion to expunge the lis pendens. The motion to expunge is generally accompanied by a request for attorneys fees that were required to expunge the lis pendens. That being said, since it sounds like the lis pendens was placed by you, through your attorney, I would focus on getting it released. You may want to also have a conversation with the state bar regarding this matter.
Please understand that this should be viewed as general information only and no attorney-client relationship should be inferred by this post.