Motion to Discharge Lis Pendens in Indiana

Understanding the Purpose and Significance of a Motion to Discharge Lis Pendens

“‘Lis pendens,’ which literally means pending suit, is governed in this state by statute and court rule.” (See Crawfordsville Apartment v. Key Trust Co. (1998) 692 N.E.2d 478, 479 n.2.)

"The purpose of lis pendens or notice of lis pendens is to give effective notice to third persons of pendency of litigation affecting property and its purpose is the same in the context as a mechanic's lien." (See Henigan v. Southwest Corporation (2003) 784 N.E.2d 536, 545.)

“This doctrine allows a party with an in rem interest in property, which is not otherwise recorded or perfected, to place that claim upon the public record and provide constructive notice to those dealing with the defendant." (See id.)

“Further, lis pendens notices provide constructive notice of pending lawsuits that affect an interest in real estate.” (See Brinkley v. Haluska (2013) 982 N.E.2d 1019, 1023.)

“If a lis pendens notice is properly filed on the public records, a subsequent purchaser will take the property subject to a judgment in the pending claim.” (See id.)

Lis Pendens Notice

“Indiana adheres to the doctrine of lis pendens, which literally means pending suit." (see Mid-West Federal Sav. Bank v. Kerlin (1997) 672 N.E.2d 82, 86.)

“At common law, lis pendens held that a person who acquired an interest in land during the pendency of an action concerning the title thereof had to take notice of such an action, and had to take the property subject to the judgment rendered in the action.” (See id.)

“Notice of the action arose from the commencement of the action itself.” (See id.)

“This general rule was modified by Indiana Code sub. sec. 34-1-4-2 which requires that a separate written notice of a pending suit be filed with the clerk of the circuit court in order for the action to affect the interests of any pendente lite claimants.” (See Mid-West Federal Sav. Bank v. Kerlin (1997) 672 N.E.2d 82, 86.)

“The purpose of lis pendens notice is to provide machinery whereby a person with an in rem claim to property which is not otherwise recorded or perfected may put his claim upon the public records, so that third persons dealing with the defendant . . . will have constructive notice of it.” (See id.)

“However, the statute does not require such notice he filed if the action is founded upon an instrument executed by the party having the legal title to the real estate, as appears from the proper records of the county, and recorded as by law required.” (See Mid-West Federal Sav. Bank v. Kerlin (1997) 672 N.E.2d 82, 87.)

Legal Precedents and Case Law on a Motion to Discharge Lis Pendens

It is well settled that “if a lis pendens notice is properly filed on the public records, a subsequent purchaser will take the property subject to a judgment in the pending claim. To protect an interest in the property, the subsequent purchaser may either ensure that the grantor does not harm his rights or intervene in the action.” (See JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Ass'n (2014) 19 N.E.3d 324, 333.)

“The most frequent examples, and the clearest examples, of a proper lis pendens notice occur in situations where the plaintiff is asserting a claim to the title of real estate under an unrecorded deed or attempting to foreclose an unrecorded mortgage.” (See id.)