Lis Pendens Removal
Posted: Tue May 03, 2011 6:51 pm
You are correct. A lis pendens is simply a constructive notice that an action is pending in which a claim of title or right of possession in and to a specific parcel or parcels of real property is asserted. The notice does not create a lien, although the underlying claim may involve a disputed lien, and of course the notice may well have the (intended) effect of impeding the transfer of the subject parcel(s). (There may be an issue re avoidance under Sec 547 if the lis pendens is recorded within the 90-day pre-petition period).
In any event, the notice can be expunged if the party recording the notice is found not to possess a valid real property claim. In addition, a motion can be made in the pending action to require expungement conditioned upon the posting of a bond. See CCP 405, et seq.
If the lis pendens is valid/unavoidable and the defendant does not/cannot give an undertaking to obtain expungement, then the underlying claim needs to be resolved. Perhaps that claim can be addressed through an adversary proceeding (Rule 7001(2)), relief from stay or by avoidance motion (not sure which).
Gary R. Wallace
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Ave., Suite 300
Marina del Rey, CA 90292
Tel. (310) 821-9000
Fax (310) 775-8775
Email: gwallace@gladstonemichel.com
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On May 3, 2011, at 4:48 PM, Matt Resnik wrote:
> Little brain freeze. I seem to remember reading that a lis pendens is not considered a lien for BK purposes. However, I am not completely comfortable in my recollection.
>
> Does anyone know if this is by adversarial or motion (522)?
>
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