Lis Pendens (Notice of Pendency of Action)
A public notice recorded against the property title — warns all parties that litigation affecting the property is pending.
Overview
A Lis Pendens (Latin for 'suit pending,' also called Notice of Pendency of Action) is a document recorded in the county land records providing constructive notice to the world that litigation affecting title to or possession of real property is pending. In foreclosure defense, a Lis Pendens serves multiple strategic purposes: it prevents the lender from transferring the property to a third party during litigation, it ensures that any party acquiring an interest in the property after the Lis Pendens is recorded takes subject to the outcome of the litigation, and it preserves the court's ability to grant effective relief. In some states, recording a Lis Pendens in a wrongful foreclosure or quiet title action can cloud the title sufficiently that a foreclosure sale cannot proceed until the litigation is resolved.
Purpose
- •Provide public notice that litigation affecting the property is pending
- •Prevent the property from being transferred to a bona fide purchaser during litigation
- •Preserve the court's jurisdiction to grant relief affecting title
- •Cloud title to prevent a foreclosure sale during active litigation
- •Ensure any subsequent purchaser takes the property subject to the litigation outcome
When to File
File at the commencement of any action affecting title to or possession of real property. Recording the Lis Pendens is typically one of the first steps in a wrongful foreclosure, quiet title, or fraud action against a lender. In many states, the Lis Pendens must be recorded within a specific time after filing the complaint.
Timeline
Record simultaneously with or immediately after filing the complaint. The Lis Pendens remains in effect until the litigation is resolved (judgment, settlement, dismissal) or the court orders it expunged. After final judgment, file a release or withdrawal of Lis Pendens.
Key Elements & Requirements
Caption of the pending action: Court, case number, parties
Property description: Full legal description and street address
Nature of the action: Brief statement of the claims affecting title to the property
Recording information: File with the county recorder where the property is located
Signature: Typically by the plaintiff or plaintiff's attorney
Legal Standard
A Lis Pendens is proper when the pending action involves a 'real property claim' — a claim that would affect title to or possession of real property. Wrongful foreclosure claims, quiet title actions, and fraud claims seeking to set aside a foreclosure sale all qualify. However, a Lis Pendens recorded in an action that does not actually affect title may be expunged (removed) by the court, and the recording party may be liable for slander of title.
Strategy & Tips
Record the Lis Pendens immediately upon filing a complaint challenging the foreclosure or asserting claims affecting title. The Lis Pendens creates a cloud on title that makes it difficult for the lender to sell the property — no buyer wants to purchase property subject to unresolved litigation. If the lender moves to expunge the Lis Pendens, you must demonstrate a 'real property claim' with a probability of success. A weak claim that cannot survive an expungement motion may result in sanctions.
Court Filing Information
Where to File
County Recorder (or Register of Deeds) in the county where the property is located. ALSO file a copy with the court.
Fees
Recording fee: typically $25-$75 depending on county and number of pages.
Format
Standard Lis Pendens form. Must include the legal description of the property.
Copies Required
Original to county recorder + copy filed with court + copy served on all parties + your copy.
Frequently Asked Questions
Can a Lis Pendens stop a foreclosure sale?+
A Lis Pendens alone does not stop a sale — it is notice, not an injunction. However, the cloud on title created by a properly recorded Lis Pendens often dissuades bidders (especially third-party bidders) because they acquire the property subject to the litigation. Combined with a TRO or stay, a Lis Pendens provides comprehensive protection. The lender may still proceed, but the sale is less attractive to buyers.
What happens if the lender sells the property despite a recorded Lis Pendens?+
Any purchaser who acquires the property after the Lis Pendens is recorded takes the property SUBJECT TO the outcome of the litigation. This means if you win your case (e.g., the foreclosure is declared wrongful), the purchaser's title may be affected — potentially voided. Because of this risk, most buyers (and title insurers) will not purchase property with a recorded Lis Pendens.
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