----- Message from "Richard Bordwell" <Richard@BordwellLaw.com> on Mon, 31 Jul 2006 19:59:59 -0600 -----

To:	<realestate@iabar.org>
Subject:	Lis Pendens and Claimant's Index

Pat Bauer says below .... I suppose we should count our blessings that no
one appears to pressing for elimination of the clerks lis pendens index.
 
The Lis Pendens index is addressed in 617.10 and 617.11.  When properly indexed a pending action is notice to third parties.  
 
But what is properly indexed in the current system?  Has anyone taken a close look at the clerk's lis pendens "index" recently?  I have asked our clerk office and they say there is no instruction set to guide in the entry of information.
 
In the Iowa Court Information System (ICIS) there are three sections in the Property/Lis Pendens Search screen:
Rural, City and Miscellaneous.  Under the Misc. section there is only a parcel number and a description.  In Washington County under the Miscellaneous I find parcel "466" (the index) linked to this "legal description":  "480 AC IN SECTIONS 15  21 AND 22 OF MARION TWP"
 
A mechanic's lien indexed in the Misc section under parcel "43" contains a "legal description" of     "AUDITOR PAR A B & C SHOWN IN PB 12 PG 355."
 
Tell me how such an entry could put anyone on notice of anything?
 
The ICIS system enforces very little, if any, rules on entry of data in lis pendens.  For example section 3 may be entered as "3" or "03" and the results on quarry will be different.  There may be multiple ways to spell or abbreviate the name of a subdivision.  Rural subdivisions are entered not a subdivisions in our county but under the township, section and range like farm land.  
 
One rural entry is indexed as "31-76-8" and the description is "E 12 FT OFF DESCRIBED LAND."  In a largely rural county this may be workable but how will this work in a county with many rural subdivisions?
 
I think a better solution would be to do away with the lis pendens in the clerk's office and instead afford the same protection to a plaintiff by having the attorney prepare a "Notice of Lis Pendens" with the case caption of the law suit and leaving the Recorder's required top margin.  The Notice would contain the full legal description of the property and a statement that the above action has been filed which affects the property.  Once the Recorder has file-stamped the document the Plaintiff's attorney would then file it in the court case and lis pendens would be effective.  I would trust the Recorders of Iowa to do a much more accurate indexing of the legal description than your average clerk of court clerk.  
 
Richard S. Bordwell
Bordwell Law Office, PLC
Attorneys at Law
Washington, Iowa  52353
 
 
-----Original Message-----
From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of Bauer, Patrick B
Sent: 07/31/2006 4:25 PM
To: realestate@iabar.org
Subject: Recent Elimination of Requirement of Notation in Claimant's Index of Forty-Year MTA Notices
 
I've gotten the impression that the recorders eventually would like to
move towards some sort of "master file" system which won't be
complicated by assorted sorts of "miscellaneous" books and/or indices.
This year, they seem to have taken a step in that direction in sec. 15
of SF 2264
<http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo
&service=billbook&hbill=SF2264>, which amends sec. 614.35 to eliminate a
provision about entering forty-marketable title interest preservation
notices in the "claimants book" and instead merely requires entry of
such notices in the recorder's records "under the grantee indexes of
deeds in the name of the claimants appearing in such notices."
 
My understanding was that the claimants' book effectively functioned as
a tract index because it contained a limited set of notices that could
effectively be searched by parcel in a way that would enable folks to
determine the existence of a claim falling outside the record chain of
title.  Some time back, the Johnson County Recorder suggested to me that
their new electronic indexing system can function as a tract index
because it supposedly allows for a separate search based on the field
that is responsive to the statutory command that the recorder's
grantor-grantee index include a description of the real estate conveyed
(sec. 558.49(7)).  If so, maybe the elimination of a claimants book
recording requirement for forty-year marketable title notices isn't a
problem, but if not, I'm wondering how a forty-year notice from someone
outside the chain of title is going to surface.
 
Although it's been eliminated for forty-year MTA notices, entry in the
claimant's book and index continues to be required for notices under the
10-year affidavit of possession procedure (614.18), for notices of state
uses and reversions (614.26), notices of coal interest claims (sec.
557C.4), and (as Jason's initial posting notes), for 120-day tax
affidavits  (448.17).  I suppose we should count our blessings that no
one appears to pressing for elimination of the clerks lis pendens index
(614.10)!  ;-)
 
Pat Bauer
Iowa Law School
 
> -----Original Message-----
> From: realestate-owner@iabar.org
> [mailto:realestate-owner@iabar.org] On Behalf Of Marc R Engelmann
> Sent: Monday, July 31, 2006 3:51 PM
> To: realestate@iabar.org
> Subject: RE: Title Standard 10.2 - Tax Sale Affidavit/Claimant's Index
>
> (NOTE: selecting Reply in your email program defaults to the
> entire list)
>
> Jason:
>
>     There both was and remains a requirement that the
> Recorder's in Iowa maintain a Claim Index of some sort.  I am
> in Scott County and this Index is still maintained for
> exactly what you indicated (Affidavits 120 under the Tax Sale
> area) and in addition for the potential extension of  
> Restrctive Covenants etc.  I have no idea as to what the Polk
> County Recorder is refering to.
>
>     I have had the experience that an attorney has claimed
> that filing an affidavit in the Affidavit Indexing system
> would satisfy this requirement but I do not believe that is
> an accurate statement.  I think the statute must be strictly
> followed and the Claim "Book or Index" must be used.
>
>     Good Luck.
>
>     Marc E
>
> -----Original Message-----
> From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org]On
> Behalf Of Jason R.S. Cassady
> Sent: Monday, July 31, 2006 2:12 PM
> To: Real Estate Listserve
> Subject: Title Standard 10.2 - Tax Sale Affidavit/Claimant's Index
>
>
> (NOTE: selecting Reply in your email program defaults to the
> entire list)
>
> Has anyone run into any issues regarding the requirement that
> "The abstract must show when the Iowa Code Sec. 448.15
> affidavit was indexed in the Claimant's Index because the
> affidavit has no effect until so indexed."
>
> I have asked the abstracter in Polk County for this date.  
> However, the abstracter is telling me there is no such index
> in the recorder's office.  I have pointed to this title
> standard for her review, but I wondered if anyone else has
> run across this issue.
>
> Thank you.
>
> Jason
>
> Jason R.S. Cassady, Attorney at Law
> Dougherty Law Firm
> 801 North Avenue
> Norwalk, IA 50211
> Phone: 515-981-5401
> Fax: 515-981-5517
>
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