<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by P2Kats:
My final divorce decree gave all real property and all debt to my ex-husband.Since then, he has failed to pay credit cards or mortgages on time and because my name is still on all accounts, my credit has now been destroyed. However, I have never signed a "Quit Claim" on the real property and he is now listing it for sale. I
refuse to sign any documentation until all debts in my name are paid in full. Can I file a "Lis Pendens" on the property to stop any sale? Do I have to have an attorney to file or can I do this myself? <HR></BLOCKQUOTE>
My response:
Lis pendens: If the action affects title to, or the right to possession of, specific real property, petitioner may, at the time of filing the petition, record in the office of the county recorder of the county (or counties) where the real property is located a "notice of pendency of action" ("lis pendens"). [Ca Civ Pro § 405 et seq; see Ca Civ Pro §§ 405.4, 405.20; Ca Rules of Court Rule 1219]
Ordinarily, anyone with actual notice of pendency of the proceeding who acquires an interest in real property affected thereby takes subject to the ultimate judgment. Recording a lis pendens accomplishes the same result: i.e., it gives subsequent purchasers, encumbrancers and other transferees constructive notice of pendency of the dissolution action as it affects the described realty and with regard to those parties designated in the pleadings. Persons who acquire an interest in the described real property after the lis pendens is properly recorded take subject to a judgment affecting that property. [Ca Civ Pro Secs.405.24, 1908(a)(2); Head v. Crawford (1984) 156 Cal.App.3d 11, 16, 202 Cal.Rptr. 534, 537; Albertson v. Raboff (1956) 46 Cal.2d 375, 379, 295 P.2d 405, 408]
Extent of protection-community vs. separate property: The lis pendens incorporates ("republishes") the pleadings. Therefore, the description of the property in the pleadings as community or separate property determines the extent to which the property is protected against the claims of subsequent purchasers and creditors. [Head v. Crawford, supra, 156 Cal.App.3d at 16, 202 Cal.Rptr. at 537]
Community property: If the property is acknowledged in the petition to be community property, the lis pendens only protects the filing spouse's one-half interest; a subsequent creditor of the other spouse can still reach the other half. And, even if the property is ultimately awarded entirely to the nondebtor spouse (who filed the lis pendens), he or she takes subject to the subsequent creditor's right to reach one-half of the property. [Head v. Crawford, supra, 156 Cal.App.3d at 16-19, 202 Cal.Rptr. at 537-538]
The above rule (lis pendens only protects recording party's one-half CP interest) is suspect. Head came to that conclusion in reliance upon prior decisions holding a spouse's unilateral conveyance of community real property is voidable during marriage only as to the nonconsenting spouse's one-half interest. However, the Cal. Supreme Court has since overruled that line of authority, making clear that when relief is sought against the transferee during marriage, while the community is still in existence (i.e., prior to dissolution of marriage by judgment or death), the nonconsenting spouse is entitled to invalidate the transaction in its entirety (a 100% set-aside). [See Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 46-47, 283 Cal.Rptr. 584, 597]
Also note that even assuming the continued vitality of the above holding in Head, its application is confined to the operation of a lis pendens filed in a pending dissolution action. The rule has no application in an independent third-party creditor's suit. [See Abbett Elec. Corp. v. Storek (1994) 22 Cal.App.4th 1460, 1467-1468, 27 Cal.Rptr.2d 845, 848-849--CP characterization of property in disso pleadings does not require CP finding in third-party creditor action but, at most, creates rebuttable presumption (trial court's finding in creditor's action that spouses' joint tenancy residence was SP affirmed)]
Separate property: On the other hand, if a separate property interest is alleged in the pleadings, the lis pendens protects that entire separate property interest. [Cf. Head v. Crawford, supra, 156 Cal.App.3d at 16, 202 Cal.Rptr. at 537]
Before it may be recorded, a lis pendens must be properly issued-i.e., it must be signed by the party's attorney of record or (if the party is in pro per) approved by a judge of the court where the action is pending and then signed by the party. [Ca Civ Pro Sec.405.21]
Contents: The notice must identify all parties to the action and describe the real property affected by the action. [Ca Civ Pro § 405.20]
Prerecordation service: Before recordation, a copy of the notice must be sent (by registered or certified mail, return receipt requested) to all known addresses of the parties to whom the real property claim is adverse (e.g., respondent) and all record owners of the property affected by the claim as shown by the latest county assessment roll. (Any later joined parties must "immediately" be served in similar fashion.) [Ca Civ Pro § 405.22]
The party who recorded the lis pendens (or his or her successor in interest) may also nullify its effect by recording in the same county recorder's office(s) a "notice of withdrawal." [Ca Civ Pro Sec.405.50]
LIS PENDENS
1 ................................... Recorded at the request of,
State Bar No. ..................... and to be returned when
2 ................................... recorded to: ......................
................................... ...................................
3 ................................... ...................................
4
5 Attorney for Petitioner ...........
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ..........
10
11 Marriage of ) CASE NO. ...................
12 .............................. ) NOTICE OF PENDENCY OF ACTION
Petitioner, ) [CCP Sec. 405 et seq.]
13 )
)
14 .............................. )
Respondent. )
15 ______________________________ )
16 NOTICE IS HEREBY GIVEN that the above-entitled action
17 concerning and affecting real property as described herein was
18 commenced on ................, 19.. in the above-entitled court by
