Home Buying in 91362>Question Details

Michelle, Home Buyer in Thousand Oaks, CA

how do you file a lis pendens ( California)? Do you need to be an attorney to do it?

Asked by Michelle, Thousand Oaks, CA Fri Feb 13, 2009

we bought a house and are in escrow. The seller received a better offer for cash and is trying to "kick us out". We are curious to see if we can file a lis pendens on the title or if we need to have an attorney to do that. We need to protect this deal as we are selling our house right now. The house we are buying is non-contingent but has a long escrow due to the fact that the seller neede to clear some liens on the property. Now the liens were cleared and the sller want to close right away. The signed contract says 120 days however.

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Dear Michelle, First of all, yes, it is in your best interest to consult with an attorney right away however, more and more buyers and sellers are filing lawsuits pro-se all the time. You can do file a lis pendens on this house in order to cloud the title and prevent the seller from selling the home to the other buyers.

You are in first position and have been patient and diligent in honoring your side of the negotiation by waiting for the seller to clean up his title, etc. It just comes to show you that money and greed for the almighty dollar has a way of seeping into the most iron clad agreements. Yuck. It's fortunate for you to have found out about this other offer rather than be ousted from the transaction before you had to time to defend your position as first in line and the rightful buyer to perform per the terms in your purchase agreement.

If you can prove that you have the ability to close this transaction within the 120 period as originally agreed by no fault of your own then he has little grounds to stand on in closing with another buyer. You can sue him for specific performance and really make his head spin. But to file a lis pendens now is the best way to shake him up.

Find an attorney or a paralegal aid that can help you with the complaint and filing that won't charge you some ridiculous fee. A lis pendens is not a difficult filing but you will want to be represented by an attorney that will stand up and speak on your behalf in court, if it gets that far. You most certainly want an attorney to represent you in a specific performance lawsuit. I hope that it does not get to that point and you are able to mediate your differences to a win-win for all. Sounds like you are on the right track and have a good head on your shoulders. Go get him! And get your house! Best of luck....

Diane Wheatley, Broker
diane@moveupproperties.com
(909) 981-5589
0 votes Thank Flag Link Sun Feb 15, 2009
Generally, the attorney on the pending litigation must file the lis pendens (Notice of Pendency of Action) under California law. That is, the lis pendens signifies there is pending litigation. Filing on the land records merely provides "notice to the world" that there is a court case. Any subsequent buyer would be presumed to have notice of the litigation, and would therefore be bound by the outcome of such litigation. This does not prevent a subsequent sale in every case, but practically speaking it does just that. No one wants to buy a home only to have a court later declare the seller had not right to sell it in the first place. Title companies will not issue a policy where there is a lis pendens recorded. Unfortunately, you have to file a case prior to filing a lis pendens.

- David Turturici, Attorney at Law
Web Reference: http://visvires.net
0 votes Thank Flag Link Fri Apr 9, 2010
I need someone in Southern California ( SouthLos Angeles) willing to complete a lis penden form for submission tomorrow, can you assist?
0 votes Thank Flag Link Mon Oct 26, 2009
Call a lawyer tomorrow, Michelle.
Web Reference: http://optionsrealty.com
0 votes Thank Flag Link Sun Feb 15, 2009
Michelle, I have a referral for a good Real Estate Attorney in the Thousand Oaks area. You need to get an attorney on this right away. What you can do before tomorrow morning is get copies of all the paperwork you have. Fully executed purchase Agreement, any amendments, any email communications or faxes relevent to the transaction.

I suggest that you do not do this Pro Per. If you really want this house, you need to start getting your paperwork organized and make sure that you have fulfilled all your obligations to the purchase that you agreed to in the time frames specified. Be ready to show this. The seller will be looking at every point of the contract to where it can be broken.

From here on out, instruct your Realtor to communicate via email with the Selling side. Tell your agent to follow up any phone conversation with an email recapping the phone conversation to create a conversation log and documentation. Create a paper tail to protect your position.
Web Reference: http://www.homebuysblog.com
0 votes Thank Flag Link Sun Feb 15, 2009
Michelle, I hope that you are working with a Realtor and the Seller is also working with a Realtor. You said the Seller agreed to close in 120 days. Has an escrow been opened?. If that is the case, I believe that you might be jumping the gun. Without having read your Real Estate Purchase Contract I suggest you talk to your Realtor and have your Realtor talk to the Seller's Realtor so he/she can put some sense in the Seller's head. If that does not work try to talk to your agent's Broker so he/she can try to help out and if all that does not work and the Seller tries to sell the house to the cash Buyer then, I would advice you to retain a Real Estate attorney to help you solve the problem right away.
0 votes Thank Flag Link Fri Feb 13, 2009
Michelle, don't mess around with this, its time to get a Real Estate Lawyer involved to put the issue to rest. A simple letter from you lawyer may solve the issue.

Best, Steve
0 votes Thank Flag Link Fri Feb 13, 2009
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