I fully understand the Notice of Lis Pendens (the reason for it, the effect of it, what it dies and what it doesn’t do)
As i understand it Lis pendens essentially notifies the public that a property has been named as possibly being involved in or affected by a lawsuit. And that an actual lawsuit has to have been filed and is active for the lis pendens to be allowed.
I understand the methods by which a lis pendens can be removed BUT my question is, "Once the lawsuit has been fully resolved (settled or concluded) assuming there was no mention of ending the lis pendens in any terminology anywhere in any document pertaining to the lawsuit, does the lis pendens still have validity. The lawsuit is fully and completely resolved, recorde and totally done with.
In the settlement of the suit the lis pendens was totally overlooked. No mention of it was made at all, no dismissal, nothing. Therefore, the clerk of the court still has the lis pendens on its records.
In other words, if no actual dismissal paperwork has been filed, and the lis pendens paper work still exists unchanged in the clerk’s records. Can one just go to court and point out that the suit has been settled and produce documentation of that settlement and get the court to issue an order to remove the lis pendens WITHOUT the cooperation of the party that put the lis pendens in place ? (That party is not cooperating in any way now.)
Please help
This question may be outside the scope of this forum. You have mentioned that the lawsuit was “done with.” But how was the lawsuit resolved? There are only a few ways that a civil action is actually resolved. It sounds as though your case settled (outside of court). Does that mean the plaintiff took a voluntary dismissal? Or is there a judgement or order disposing of the lawsuit?
Thanks again,
The lawsuit was a divorce action. It was settled by a mutually agreed-to Consent Order and Judgment. Both parties had lawyers, both parties willingly signed the settlement (which became the Consent Order verbatim). And it was submitted to the Court and the judge signed it officially making it a Consent Oder and Judgment.
However, this went on for three (3) YEARS. Early on the lis Pendens was put on a property that was owned by me (Defendant).
Because the Lis Pendens did not get any attention during the 3 years, nor was it a big issue, it was totally FORGOTTEN about by the time of the drawing up of the settlement. Therefore - NO MENTION was made of it one way or the other in the settlement (which became the Consent Order and Judgment). The plaintiff did not file a voluntary dismissal (because it was just over looked).
After it was all over I discovered that the Notice of Lis Pendens was still in place when i went to get a loan against the property.
SO, my questions are 1) Has the Lis Pendens just “expired”?
2) If not, is it as simple as going to th clerk and showing them that the suit was settled?
3) If i have to go to court to get a judge to give the OK to remove the Lis Pendens can the Plaintiff protest EVEN though the basis for it in the first place no longer exist?
Thanks
The following is from N.C. Gen Stat § 1-120 and discusses cancelation of a lis pendens:
“The court in which the said action was commenced may, at any time after it is settled, discontinued or abated, on application of any person aggrieved, on good cause shown, and on such notice as is directed or approved by the court, order the notice authorized by this Article to be cancelled of record, by the clerk of any county in whose office the same has been filed or recorded; and this cancellation must be made by an endorsement to that effect on the margin of the record, which shall refer to the order.”
I would go to the clerk of superior court, in the appropriate county, and bring your consent order and judgement. It may be worth giving the clerk’s office a call to make sure you don’t need to bring anything else. But the clerk has the power to cancel the lis pendens.