Pence et al v. GMAC Mortgage LLC

Filing 48

ORDER that Defendant's Motion for Order to Release Lis Pendens (Doc. 44 ) is DENIED. IT IS FURTHER ORDERED that Plaintiffs' Motion for Clarification of Judgment of Dismissal (Doc. 46 ) is GRANTED. This Order is the requested clarification. Signed by Judge G Murray Snow on 6/9/2014.(KMG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael J. Pence; Tauni R. Pence,
Plaintiffs,

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ORDER

v.

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No. CV-12-1652-PHX-GMS

GMAC Mortgage LLC,

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Defendant.

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Pending before the Court are Defendant’s Motion for Order to Release Lis

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Pendens (Doc. 44) and Plaintiffs’ Motion for Clarification of Judgment of Dismissal

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(Doc. 46). For the following reasons, reasons the Motion for Order to Release Lis

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Pendens is denied and the Motion for Clarification of Judgment of Dismissal is granted

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by the following clarification.

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This quiet title litigation has ended without any determination as to the merits of

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either party’s claims or rights to the title of the home in dispute. The Pences requested a

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voluntary dismissal and after they complied with the requirements of this Court, this

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Court dismissed the action entirely. (Docs. 38–42.) GMAC Mortgage asked the Pences to

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remove a Notice of Lis Pendens that the Pences have recorded in Maricopa County

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Recorder’s Office against the disputed property. (Doc 44-1 at 5–6.) The Notice of Lis

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Pendens gives notice of this “pending Quiet Title lawsuit.” (Doc 44-1 at 2.) The Pences

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have not removed the Lis Pendens.

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GMAC Mortgage asks this Court to enter an order releasing and discharging the

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Lis Pendens. Arizona Revised Statutes § 33–420(b) provides that the owner or beneficial

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title holder of the real property may bring an action to clear title when a lis pendens has
been filed. The statute provides that such a “special action may be brought based on the
ground that the lien is forged, groundless, contains a material misstatement or false claim
or is otherwise invalid.” Id. A party “may bring a separate special action to clear title to
the real property or join such action with an action for damages as described in this
section.” Id. This case is dismissed and there is no “action for damages” to which an
action to clear the Lis Pendens can be joined. Further, this Court made no determinations
before dismissal that would give it a basis to determine whether “the lien is forged,
groundless, contains a material misstatement or false claim or is otherwise invalid.”
This denial is not on the merits and in no way limits GMAC Mortgage’s ability to
seek the removal of the Lis Pendens in an appropriate action.
IT IS HEREBY ORDERED that Defendant’s Motion for Order to Release Lis
Pendens (Doc. 44) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Clarification of
Judgment of Dismissal (Doc. 46) is GRANTED. This Order is the requested
clarification.
Dated this 9th day of June, 2014.

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