QUESTION
Can I file a lis pendens on a house but the lawsuit is not with the legal owner?
Asked on Jul 17th, 2013 on Civil Litigation - Virginia
More details to this question:
I want to file a lis pendens against a property in which my bond money went into the house so that I could be released from jail. However the person that took my money and put it into the equity of the house is not the legal owner, however he did have a power of attorney from the owner to do so. He is the owner as well but that is not recorded. He pays the mortgage and has lived there for 10+years. I sued only the guy that carried out the power of attorney and not the owner yet. Can I still file a lis pendens before the legal owner is brought into the case? Also I am just asking for my money back, will the lis pendens still work if thats all I want, or do I need to ask the court to grant me ownership of the house since all my money is in the equity of the home?
1 ANSWER
I am not familiar with the law of Virginia, but assuming that it is the same as the jurisdictions in which I practice, you have no right to file a lis pendens unless your claim affects title to the real property. Your claim for money damages alone is not sufficient. However, if you sued to impose what is known as a "constructive trust" over the house, based on the theory that the owner used your money to buy, or increase his equity in, the house, you may be able to file the lis pendens. You may have to ask the Court for permission to amend your complaint to add a claim for constructive trust.
Answered on Jul 17th, 2013 at 5:11 PM