Chapter 5-5 The Lis Pendens

• Jurisdiction: Florida

5-5 The Lis Pendens

Latin for "suit pending," the lis pendens tool greatly avoids title issues during the pendency of litigation. Upon the filing of the complaint, the practitioner should immediately file and record in the public records of the county a lis pendens, identifying the property being foreclosed in conformity with the statute.³³ The lis pendens operates as constructive notice to the entire world of the pending litigation as well as the allegations of the complaint.³⁴ This means that any interest in the subject property acquired subsequent to the recording of the lis pendens will be subject and inferior to a valid judgment rendered thereon.³⁵

From a practical perspective, the lis pendens protects the foreclosing mortgagee from intervening lienholders which would not otherwise be included as parties defendant. At the foreclosure sale, all such interests would be foreclosed, irrespective of whether they were expressly joined as parties in the complaint or not. The practitioner is well-advised to file suit and record the lis pendens as quickly as possible after obtaining her title abstract and reviewing title. Should too much time pass between the review of title and the recording of the lis pendens, intervening liens could result in a Certificate of Title subject to those liens.³⁶

Additionally, the lis pendens forces the holders of unrecorded interests or liens to file a motion to intervene in the proceedings within 30 days of its recording, or else such interests and liens will be discharged at the foreclosure sale.³⁷ A corollary to this requirement is that the court wherein the lis pendens was recorded maintains exclusive jurisdiction to adjudicate any unrecorded intervening interest, and a separate suit on that unrecorded interest is inappropriate.³⁸ This requirement is substantive rather than procedural, and so not subject to constitutional challenge.³⁹ This provision does not affect the foreclosing plaintiff's right to amend its complaint, moreover, to include the omitted party as a defendant, effectively amending its lis pendens.⁴⁰

The usage of the lis pendens remedy, however, must be measured. In foreclosure litigation, its usage is appropriate and necessary. The lis pendens has been described as a "harsh and oppressive remedy," since it has the operative effect of creating a cloud on title which prevents the owner of the subject property from selling or otherwise encumbering it.⁴¹ Accordingly, those that engage in litigation which outcome...