Motion to Discharge/Cancel Lis Pendens in Arizona

What Is a Motion to Discharge or Cancel Lis Pendens?

Understanding the Basis for a Motion to Discharge or Expunge Lis Pendens

“A notice of lis pendens is a statement that a party is claiming an interest in real property which would affect the title.” (See Coventry Homes v. Scottscom Partnership (1987) 155 Ariz. 215, 217.)

“A lis pendens provides constructive notice to prospective purchasers and lenders of a pending lawsuit that may affect title to real property.” (See Santa Fe Ridge Homeowners' Ass'n v. Bartschi (2009) 219 Ariz. 391, 395.)

“As stated, lis pendens is simply a statutory substitute for notice of a legal proceeding which affects the title to realty. It is fundamentally procedural because it provides a different, more adequate method of notice without conferring any additional substantive right.” (See Kelly v. Perry (1975) 111 Ariz. 382, 385.)

General Information for Filing a Motion to Discharge or Expunge Lis Pendens

“The recording of notices of lis pendens is authorized by A.R.S. subsection 12-1191, which allows such recordings to give notice to the world of the pendency of an action affecting title to real property." (See A.R.S. subsection 12-1191(A); Coventry Homes v. Scottscom Partnership (1987)155 Ariz. 215, 217.)

“It is well established that a lis pendens may not be predicated on an action or suit for a money judgment but applies only to an action or suit which directly affects the title to real property.” (See id.)

“A lis pendens is void if it is filed in an action which does not affect title of real property and is not authorized by the statute.” (See Mammoth Cave Production Credit Assoc. v. Gross (1984) 141 Ariz. 389, 392, 687 P.2d 397, 400; Coventry Homes v. Scottscom Partnership (1987) 155 Ariz. 215, 217.)

Standard of Review Courts Use in Evaluating a Motion to Discharge or Expunge Lis Pendens

“In determining whether a lis pendens was wrongfully recorded, the court is limited to considering whether the action is one affecting title to real property.” (See Evergreen W., Inc. v. Boyd (1991) 167 Ariz. 614, 620, 810 P.2d 612, 618; Santa Fe Ridge Homeowners' Ass'n v. Bartschi (2009) 219 Ariz. 391, 395.)

“In making that determination, the court need find only some basis that the action is one affecting title to real property to conclude the lis pendens was not wrongly recorded.” (See Santa Fe Ridge Homeowners' Ass'n v. Bartschi (2009) 219 Ariz. 391, 395.)

“A lis pendens is groundless or has no basis only when the claim that the action affects title to real property has no arguable basis or is not supported by any credible evidence.” (See id.)

“A court's decision on whether the underlying action involves title to real property should not involve a decision about which party will prevail on the merits of the underlying claim.” (See id.)

“Specific performance of such contracts like those relating to contracts affecting real estate in general rests largely in the sound discretion of the court, and if the defendant will be subject to great hardship, or the consequences would be inequitable, relief will be denied. . .” (See McRae v. Lois Grunow Memorial Clinic (1932) 40 Ariz. 496, 505.)

Court Decisions Discussing Motions to Discharge or Expunge Lis Pendens

In “Janis v. Spelts, Division Two of this court held that attorney's fees were mandatory pursuant to A.R.S. subsection 33-420 to a party who prevailed in establishing that a notice of lis pendens was wrongfully recorded in an action involving a constructive trust.” (See 153 Ariz. at 598, 739 P.2d 819.) “The court did not discuss whether the action seeking the constructive trust affected the title to real property. Rather, it upheld the finding of a wrongful lis pendens because of the lack of merit in the underlying claim for the imposition of the constructive trust.” (See Coventry Homes v. Scottscom Partnership (1987) 155 Ariz. 215, 218.)

It is well settled that “section 33-420(A), A.R.S., provides in pertinent part that one purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded . . . knowing or having reason to know that the document is . . . groundless . . . or is otherwise invalid is liable to the owner . . . of the real property for the sum of not less than five thousand dollars . . . and reasonable attorney fees and costs of the action." (See Santa Fe Ridge Homeowners' Ass'n v. Bartschi (2009) 219 Ariz. 391, 398.)

Dockets for Motion to Discharge/Cancel Lis Pendens in Arizona

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ANNE E NIELSEN PLAINTIFF VS JUSTIN SWINNEY et al. DEFENDANT

Filed

May 09, 2024

Status

Active

Court

Mohave County

County

Mohave County, AZ

Case #