Over the last few months, I was hired by several property owners who had the same problem. Each of them sold a property, and their buyer defaulted on the contract. The buyer then filed a lawsuit to recover their down payment. As part of that lawsuit, the buyer filed a Notice of Pendency (a/k/a Lis Pendens) for the sole purpose of stopping the owner from selling the property to another buyer until the lawsuit was completed.
Now, the only reason a buyer suing to get back his or her down payment files a Notice of Pendency is to create leverage against the seller by tying up the property and keeping it off the market. Faced with a potentially lengthy Court battle and unable to sell their property during that time, sellers sometimes feel they have no choice but to given in to their buyer’s demands and return all (or some) of the down payment.
But sellers in this position can often remove the Notice of Pendency early in the case, and thus eliminate their buyer’s leverage. Depending on the specific facts and circumstances of the case, there are three (3) main ways I can arrange to remove the Notice of Pendency.
First, it can be done through an agreement with the buyer’s lawyer. You would be amazed how easily that can be done if your lawyer knows what he or she is doing. This is the fastest and least expensive method of solving the problem.
Second, sellers can file a request with the Court to cancel the Notice of Pendency for legal reasons early in the case. This takes longer than an agreement, but is much faster than going through the entire case before the lien is dismissed.
And, third, a seller can file a motion to dismiss the entire case (and with it the Notice of Pendency). This option takes the most time and money because it requires the most work by your lawyer, the other side’s lawyer, and the Court.
The good news is that once the Notice of Pendency is removed, the owner can put his property back on the market, and the buyer’s negotiating position in the Court case is weakened substantially. So, the owner wins twice.
If you would like some more information on removing a Notice of Pendency or about another real estate issue, please call, text, or email me.