----- Message from "Scott Walters" <scottwalters@mac.com> on Tue, 2 May 2006 10:42:27 -0600 -----

To:	"MARK HANSON" <hanson@whitfieldlaw.com>
cc:	<realestate@iabar.org>
Subject:	Re: Lis Pendens Index

This problem is more extensive than you realize.  Ever since Iowa  
converted to the Iowa  Courts Online system, many of the clerks  
across the state have failed to maintain a lis pendens index and  
instead have relied on the online "property search" index for lis  
pendens entries as well as mechanics lien filings.  Either the  
property search index should to be renamed as the"Lis Pendens/
Mechanics LIen Index", or the manual lis pendex index should be  
maintained.

Scott County has not maintained a "lis pendens" index for quite some  
time.  All lis pendens entries are made by the clerk in the "property  
search" index.   Abstractors in Scott County treat the property  
search index as the lis pendens index, but perhaps they shouldn't.  
For foreclosure entries in an Abstract of Title, I refer to what  
would be the lis pendens entry as a property search entry which, I  
hope,  puts the examiner on notice.  I would think that the problem  
could be remedied by simply renaming  the property search index as  
the lis pendens/mechanics lien index.

  - Scott H. Walters

On May 2, 2006, at 9:39 AM, MARK HANSON wrote:

> I fully agree with Craig.
>
> Interesting the clerk decides to not do duties as specified in the  
> Code.
> See:  Section 602.8102(94), And Section 617.10
> The operative language is "shall"
> not "may"
>
>
> But, what is more interesting and critical is that the clerk does  
> not appreciate how Code sections inter-relate.
>
> Section 617.10 to 617.15  charge all third persons with notice of  
> pendency of action, and no interest can be acquired by third  
> persons in the subject matter as against the plaintiff's rights -  
> WHEN SO INDEXED.
>
> If the clerk does not keep a lis pendens index, but says the clerks  
> office will use instead the computer property search program, I  
> think Woodbury County effectively does not  "charge of all third  
> persons with notice of pendency".
>
> The only way you would be able to  utilize the computer property  
> search program to charge third persons with notice and cut off  
> acquisition of interest in the subject matter against plaintiff's  
> rights would be if the legislature passed a revised statute that  
> allowed "charging with notice" upon the action and real estate  
> being listed in the computer property search program.  And, since  
> the legislature has not done so, Woodbury County is without a  
> mechanism to charge the third person with notice and cut off the  
> third person from acquiring interest against the plaintiff.
>
> I think any attorney doing a foreclosure for instance would have to  
> continually amend to add parties defendant because no one would be  
> charged with notice and third parties would continually acquire  
> interest against the plaintiff's rights.
>
> Then at what point would the third party be charged.  I don't think  
> the third party would be charged until a sheriff deed is recorded.  
> And the attorney would need to have a lien and title search  
> performed up through recording the sheriff deed, and re-open the  
> foreclosure to name anyone who has popped up either with consensual  
> liens or non-consensual.
>
> And, you would then have potential multiple omitted junior  
> lienholders whose equity of redemption had not been cut off.  The  
> foreclosing attorney would need to have a proceeding to give them  
> opportunity to exercise their equity of redemption.   This is a  
> different colored animal, and more involved than many attorneys  
> realize.
>
> Dan, I do not think the Woodbury Clerk has the foggiest idea of the  
> ramifications of this intended action.  And if this is what  
> happens, Woodbury is going to have very messy and uncertain title.  
> As an attorney examining an abstract of property that went through  
> foreclosure for instance, or any proceeding for that matter, I  
> would raise an objection to title if any interest or judgment lien,  
> or consensual lien appeared at any time before the sheriff deed is  
> recorded but had not been named in the action.
>
> Mark Hanson
> Des Moines
>
>
>
>
>
>
> Mark V. Hanson
> Attorney at Law
> Whitfield & Eddy, P.L.C.
> 317 Sixth Avenue, Suite 1200
> Des Moines, IA  50309-4195
> 515-246-5556
> Fax:  515-246-1474
>
>
>
>
>
>
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