Original Arizona

Original Arizona

The Standard for lis pendens or pending in Arizona Real Estate Litigation

Often when filing a lawsuit for specific performance for the sale of a home or other any other real estate contract, the buyers using the standard legal tactics of simultaneous recording of a notice lis pendens (lis pendens is Latin for "pending litigation") with the County Recorder's Office. The lis pendens places no other purchaser stating that the title of the property involved in the Arizona real estate disputes . Moreover, a lis pendens does not prevent another buyer from acquiring an interest the property is greater than that of the original purchaser. Moreover, as a practical matter, because title insurance companies will not insure title to a property which a lis pendens has been registered, a house with a lis pendens can not be sold.

After a lis pendens is recorded, the first question generally requires a seller is: "How soon can I remove a lis pendens against my property so that I can sell to another buyer? After informing the vendor pursuant to § ARS 33-420 (B) the seller is entitled to a prompt hearing on the validity of the lis pendens, the second question of the seller: "What must be proved at this hearing lis pendens expires? "

The Arizona Court of Appeals in Evergreen West, Inc. v. Boyd, 167 Arizona 614, 810 P.2d 612 (Arizona Ct. App. 1991), is an "unfounded" standard for invalidity of the lis pendens before resolution of the specific performance lawsuit (which may last years). In other words, the seller looking for the lis pendens expires bears the burden of proof to establish that the claim that the lis pendens is based is "unfounded" (ie, frivolous or totally without merit). This "unfounded" standard promulgated by the Court of Appeal in West Evergreen, the lowest threshold for invalid lis pendens prior to the resolution of the specific performance lawsuit.

In 1992 neighboring jurisdiction of California is a much tougher standard that better protects sellers. California standard requires the court to a threshold inquiry to whether "the plaintiff has … Founded by a preponderance of the evidence of the probable validity of the property to recover." Cal. Civ. Proc. Code § 405.32 (Emphasis added). In other words, unless the buyer is likely to prevail at trial, the lis pendens be declared invalid and the Seller will immediately right to sell the property while the lawsuit proceeds on the resolution.

Finally, an examination of what the buyer of the underlying facts and legal position, to determine whether the buyer's claim for the lis pendens has at least a "probable" chance of success at trial, is an excellent rule. A lis pendens should not be used as a weapon by buyers to tie properties to extort concessions from sellers. Consequently, the Arizona Court of Appeals or the Arizona legislature Evergreen West verdict will hopefully change in the future and set a higher standard, requiring a buyer to the suspected validity of a lis pendens prove the beginning of the dispute.

Note: Even if the lis pendens was declared invalid, any buyer with knowledge of the title dispute will not be protected if the original buyer wins the lawsuit. Moreover, the seller is obliged to disclose this title dispute and to any buyer, the seller is not well known to make a potential buyer will actual knowledge of the title dispute. Therefore, as a practical matter, even as the lis pendens invalid, a sale of real estate will be valid only if the seller does not disclose the buyer and has no actual knowledge of the title dispute.

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Article Source: Combs Law Group blog

Occupation vs. non-recourse loan in California, home in Arizona?

We bought a house in Phoenix, AZ 2 years ago and recently sold the house on a short sale basis. The original lenders were based in Newport Beach, CA. We never re-financed the house. Are we covered by the law of California as a non-recourse loan, even though the house in Arizona? We have fixed the first lender and do not feel the second is honest with us about their conditions. We signed papers with the second under protest Lein and close to release. Thank you for any help you can give us. Buck

Where is the second lender located and where your paper you have signed on to write "We his signature under protest "with your signature? Sorry that the information we need here, so we can help you better.

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