§ 25-531 — Lis pendens; notice; where filed; contents; recording; cancellation; filing fee

Nebraska § 25-531

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

When the summons has been served or publication made, the action
is pending so as to charge third persons with notice of pendency. While the
action is pending no interest can be acquired by third persons in the subject
matter thereof, as against the plaintiff's title. In all actions brought to
affect the title to real property, the plaintiff may either at the time of
filing his or her complaint or afterwards, file, or in case any defendant
sets up an affirmative cause of action and demands relief which shall affect
the title to real estate, he or she may, at the time of filing such answer
or at any time afterwards, file with the clerk or register of deeds of each
county in which the real estate thus to be affected, or any part thereof,
is situated, a notice of the pendency of such action. The notice shall contain
the names of the parties, the object of the action, and a description of the
property in such county sought to be affected thereby. If the action is for
foreclosure of a mortgage, such notice shall contain the date of the mortgage,
the parties thereto, and the time and place of recording the same. The clerk
or register of deeds of such county shall record the notice thus filed and
enter the same upon the numerical index of all lands, any part of which is
included in the description in the notice, for which he or she shall be entitled
to receive filing fees in accordance with section 33-109 , to be paid by the person filing such notice, and which
shall be taxed as part of the costs in the action. From the time of filing
such notice the pendency of such action shall be constructive notice to any
purchaser or encumbrancer to be affected thereby. Every person whose conveyance
or encumbrance is subsequently executed or subsequently recorded shall be
deemed to be a subsequent purchaser or encumbrancer and shall be bound by
all proceedings taken in the action after the filing of such notice to the
same extent as if he or she were made a party to the action. The court in
which such action was commenced or any judge thereof may at any time thereafter
on the application of any person aggrieved, on good cause shown, and on such
notice as the court or judge may determine, order the notice to be canceled
by the clerk or register of deeds of any county in which the notice may have
been filed or recorded by filing a notice of release. In actions in which
such notice is filed in a county or counties, other than the county in which
the action is pending, the county clerk or the register of deeds of the county
in which the action was begun may cancel such notice by executing a written
release under his or her hand and seal by reason of the order of the court
or judge, and forward such release by mail to the county clerk or register
of deeds of the county in which the notice has been filed or recorded, and
which certificate such county clerk or register of deeds shall record in the
records of his or her office. At any time after such notice of pendency is
recorded, the party on whose behalf the same was filed or the party's attorney
of record may cause the notice to be canceled in the office of the county
clerk or register of deeds of any county in which the notice has been filed
or recorded. Such cancellation may be made by written release in the same
manner as such cancellations are entered on order of the court. For the service
required by this section, the county clerk or register of deeds shall be entitled
to charge and receive fees in accordance with section 33-109 , to be paid by the party causing
the service to be performed.

Legislative History

Source: R.S.1867, Code § 85, p. 407; Laws 1887, c. 92, § 1, p. 643; R.S.1913, § 7651; C.S.1922, § 8595; C.S.1929, § 20-531; R.S.1943, § 25-531; Laws 1959, c. 140, § 1, p. 544; Laws 1963, c. 140, § 1, p. 517; Laws 1969, c. 181, § 1, p. 772; Laws 1971, LB 90, § 1; Laws 2002, LB 876, § 18; Laws 2012, LB14, § 2. Annotations: 1. Scope 2. Subsequent purchasers 3. Miscellaneous 1. Scope The lis pendens statute is a specific statute that controls over section 25-323, which is the more general statute requiring the joinder of necessary and indispensable parties. Wilkinson Development v. Ford & Ford Investments, 311 Neb. 476, 973 N.W.2d 349 (2022). The purpose and nature of the property and the intent of the parties determines whether buildings or other items located on leased land affect the title to real property. Ondrak v. Matis, 270 Neb. 46, 699 N.W.2d 367 (2005). Lis pendens has no application to independent titles, not derived from any of the parties to the suit nor in succession to them. Coffin v. Old Line Life Ins. Co., 138 Neb. 857, 295 N.W. 884 (1941). Claims based upon deed made after lis pendens is filed are subordinated to and determined by the judgment in mortgage foreclosure suit. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939). Notice of pendency of suit, while preventing other than parties to the suit from acquiring interest in subject matter pendente lite, does not affect existing rights or prevent the court from their adjudication. First Nat. Bank of Decatur v. Young, 124 Neb. 598, 247 N.W. 586 (1933). In action to wind up farm lease partnership, intervening creditors of one partner, having constructive notice hereunder of their debtor's limited interest, must share with other partner in distribution of debtor's property. Sacks v. Lytle, 119 Neb. 642, 230 N.W. 501 (1930). Filing lis pendens at commencement of quiet title action gives constructive notice of plaintiff's claims. Gwynne v. Goldware, 102 Neb. 260, 166 N.W. 625 (1918). Filing lis pendens does not impound property for plaintiff not having general or specific lien. Purchaser after action is started is not bound by rights subsequently set up by amendment. Hulen v. Chilcoat, 79 Neb. 595, 113 N.W. 122 (1907). Section does not refer to rights of third parties not derived through parties to suit. Merrill v. Wright, 65 Neb. 794, 91 N.W. 697 (1902). Lessee under lease made during suit is subject to decree against lessor. McLean v. McCormick, 4 Neb. Unof. 187, 93 N.W. 697 (1903). Lis pendens applies only to specific property pointed out by pleadings, and must be definite. Hillebrand v. Nelson, 1 Neb. Unof. 783, 95 N.W. 1068 (1901). Nonresident assignee of note and mortgage, failing to record his assignment, is bound by decree canceling mortgage. Heck v. Nicholas, 6 F.2d 10 (8th Cir. 1925). 2. Subsequent purchasers The lis pendens statute does not operate to prevent a subsequent purchaser from fully participating as a party in a quiet title action affecting the subject property. Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 (2017). The court having jurisdiction, a party cannot, while the action is pending, dispose of the property and avoid the effect of the final judgment in the case. Stanton v. Stanton, 146 Neb. 71, 18 N.W.2d 654 (1945). A purchaser pendente lite need not be made a party to a mechanic's lien foreclosure proceeding. Johnson v. Olson, 132 Neb. 778, 273 N.W. 201 (1937). One failing to record deed until after lis pendens filed in action to set aside deeds is subsequent purchaser and bound by proceedings. Justice v. Shaw, 103 Neb. 423, 172 N.W. 253 (1919). Amendment of 1887 cutting off prior unrecorded interests was constitutional; purpose of amendment stated. Munger v. Beard & Bro., 79 Neb. 764, 113 N.W. 214 (1907). Mortgagee acquiring rights after levy of attachment took subject thereto even though petition in attachment suit was thereafter amended. Nagle v. First Nat. Bank of Omaha, 57 Neb. 552, 77 N.W. 1074 (1899). Purchaser pendente lite is bound by decree. Clark v. Charles, 55 Neb. 202, 75 N.W. 563 (1898); Lincoln Rapid Transit Co. v. Rundle, 34 Neb. 559, 52 N.W. 563 (1892). Judgment is superior to mortgage executed during term, though recorded before judgment. Norfolk State Bank v. Murphy, 40 Neb. 735, 59 N.W. 706 (1894). Purchaser after summons served is subject to judgment. Shuman v. Willets, 17 Neb. 478, 23 N.W. 358 (1885). 3. Miscellaneous The perceived merits of the underlying action are not "good cause" to cancel a notice of lis pendens under this section. Kelliher v. Soundy, 288 Neb. 898, 852 N.W.2d 718 (2014).