A lis pendens on your Florida property is a cloud on your title that warns the world a lawsuit — typically foreclosure — is pending against the property. While active, it makes selling or refinancing nearly impossible through traditional channels. Removing a lis pendens requires either resolving the underlying lawsuit or using specific legal mechanisms to discharge it. Here is how each method works.
Understanding the lis pendens process is important because it affects your options at every stage of foreclosure. Whether you are trying to sell the property, negotiate with your lender, or defend against the foreclosure, the lis pendens is a central issue that must be addressed.
What Exactly Is a Lis Pendens?
A lis pendens (Latin for "pending lawsuit") is a recorded notice under Florida Statute §48.23 that alerts anyone who searches the property title that litigation affecting the property is underway. In the foreclosure context, the lender records the lis pendens when they file the foreclosure complaint with the court.
The lis pendens does not create a lien, transfer ownership, or restrict your use of the property. You can still live in the home, rent it out, and use it normally. What it does is make it extremely difficult to sell or refinance because:
- Title companies will flag it during a title search
- New mortgage lenders will not lend against property with a pending foreclosure
- Buyers and their agents will see the pending litigation and typically walk away
Method 1: Pay Off the Debt and Get the Case Dismissed
The most straightforward way to remove a lis pendens is to resolve the underlying debt. If you pay the full reinstatement amount or payoff amount on the mortgage, the lender must dismiss the foreclosure case and record a discharge of lis pendens in the county records.
A loan modification that is approved and executed will also result in dismissal of the foreclosure and discharge of the lis pendens, because the modification resolves the default that triggered the lawsuit.
Method 2: Win or Settle the Foreclosure Case
If you successfully defend against the foreclosure — whether through a motion to dismiss, summary judgment in your favor, or a trial verdict — the court will dismiss the case. Once dismissed, the lender must record a discharge of lis pendens. If they do not do so voluntarily, your attorney can file a motion to have the court order the discharge.
Common defenses that can result in dismissal include:
- Lack of standing — the lender cannot prove they own or have the right to enforce the promissory note
- Failure to provide required notices — the lender did not send the pre-suit default notice or breach letter required by the mortgage contract
- CFPB violations — the servicer failed to comply with federal loss mitigation requirements before filing
- Statute of limitations — more than five years have passed since the default date without the lender accelerating the loan
Method 3: Motion to Discharge the Lis Pendens
Under Florida Statute §48.23(3), you can file a motion to discharge the lis pendens if the party that filed it cannot show a fair nexus between the lawsuit and the property. In practice, this is more effective for non-foreclosure lis pendens (such as contract disputes) than for mortgage foreclosures, where the connection between the lawsuit and the property is clear.
However, if the lis pendens was improperly filed — for example, it was recorded against the wrong property, the case has been dormant for years, or the complaint does not actually seek foreclosure — a motion to discharge may succeed.
Method 4: Post a Bond to Release the Lis Pendens
Florida Statute §48.23(3) allows you to post a bond with the court to release the lis pendens while the foreclosure case continues. The bond amount must be sufficient to cover the lender's potential damages if they ultimately win the case.
This option is primarily useful if you need to sell or refinance the property while the foreclosure is still pending. By posting a bond, the lis pendens is discharged from the title, allowing a new buyer or lender to proceed without the cloud on title. The bond replaces the lis pendens as security for the lender's claim.
In practice, the bond amount is typically the full judgment amount, making this option practical only for homeowners with significant liquid assets or access to a bonding company.
What About Short Sales?
In a short sale, the lender agrees to accept less than what is owed and releases the lis pendens as part of the closing. The short sale approval letter typically includes the lender's agreement to discharge the lis pendens upon receipt of the sale proceeds.
Barrett Henry, a REALTOR with 23+ years of real estate experience and Broker Associate at REMAX Collective, has helped numerous Florida homeowners navigate short sales where the lis pendens release is a critical part of the transaction. The timing of the lis pendens discharge must be coordinated with the closing to ensure clear title passes to the buyer.
What to Do If the Lender Will Not Discharge the Lis Pendens
If the foreclosure case is dismissed but the lender does not voluntarily record a discharge of lis pendens, you have legal remedies:
- Send a written demand to the lender's attorney requesting the discharge
- File a motion with the court to compel the discharge
- Under F.S. §48.23(2), the clerk can be directed by court order to record the discharge
- If the lender's failure to discharge causes damages, you may have a claim for wrongful lis pendens
Need help with a lis pendens on your Florida property? Contact us today for a free consultation. We will help you understand your options and connect you with the right resources.