How to Cancel a Lis Pendens in Texas
In most states a Lis Pendens is a formal default notice filed by a lender with the proper court of jurisdiction. This notice starts the default process in states that have a judicial foreclosure. In contrast, states that practice nonjudicial foreclosures generally only require a notice of default filed with the court. Even though the lender has filed a Lis Pendens, the homeowner still has a claim to the property and may attempt to sell or refinance the property. So depending on what state the property is located in, either a Lis Pendens or notice of default is issued to begin the foreclosure process.
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Instructions
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Because Lis Pendens are used not used in foreclosure litigation in Texas your first step would be to identify the reason the Lis Penden was filed with the court. In Texas Lis Pendens are generally filed in order to formally place a "cloud" on a title and to let any potential buyer know that the property is part of pending litigation. In fact, Texas requires current or potential litigation as a requirement for filing a Lis Pendens.
In Texas this is generally done in divorce cases where the property in question is in the name of one of the party's, but the other has an "interest" in the property. The effected spouse or party may file a Lis Pendens with the county recorder's office, which keeps the other party from selling that property until the divorce has been completed.
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To cancel a Lis Pendens in Texas, a party must file a motion that states grounds for removing the cloud on the title. Generally, to remove the Lis Penden in Texas, the litigation involved has to be settled or resolved in a manner that pleases the court. Short of a resolution of litigation, the Texas courts allow a removal if a party provides the court with funds equal to an amount that would be likely awarded in case of an adverse judgment. Courts can also add potential interest and court cost fees to the amount of the deposit. You should take the time to properly review the Texas Property Code Section 12.008. Then write a a properly formatted motion to remove the Lis Pendens. Remember the motion must state legitimate grounds for removal such as satisfactory resolution to the legal proceeding that bore the Lis Pendens.
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The courts also will allow a removal if the petitioner files a guarantee in the form of a financial instrument with the court in twice the amount of the judgment sought by the other party in the pending litigation. The petitioner must also serve a copy of the guarantee with the attorney for the party who filed the initial Lis Penden.
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Tips & Warnings
While many everyday legal functions can be performed by a layman, it is almost always in your best interest to consult the advice of an attorney before representing yourself in a legal proceeding.
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