Bank of the W. v. Whitney, 301 F. Supp. 3d 1077

Bank of the West filed notices of lis pendens (March 10, 2017) in Utah and Salt Lake County recorders against properties owned by several Whitney entities while pursuing collection on a money judgment against Newell K. Whitney individually.
Notices alleged Newell Whitney is the alter ego of the entities and sought a resulting trust so Bank could execute against entity assets to satisfy its individual judgment.
Bank did not file the lis pendens notices with the court before recording them with county recorders, contrary to amended Utah Code § 78B-6-1303 requirements.
Defendants moved to release the lis pendens and sought statutory damages and attorneys’ fees under the Utah lis pendens statutes.
The court evaluated (1) whether the notices were properly filed and (2) whether the underlying claims affect title or possession of real property such that a lis pendens was authorized.
The court ordered immediate release of the lis pendens but declined to award statutory damages or attorneys’ fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Proper procedure for filing lis pendens	Bank: statute shouldn’t automatically require release for procedural failure; substance matters	Defs: statute requires filing with court before recording; failure mandates release	Court: notices must be released because Bank failed to file them with the court first
2. Whether claims affect title or possession	Bank: resulting trust and reverse-piercing claims affect title/possession of listed properties	Defs: claims only seek to satisfy a money judgment; title/possession remains with entities	Court: claims do not affect title or possession; lis pendens not authorized for these claims
3. Use of lis pendens to enforce a money judgment	Bank: seeks enforcement of existing judgment by reaching entity assets, including real property	Defs: Utah law prohibits lis pendens solely to support money-judgment enforcement	Court: lis pendens cannot be used to anticipate or facilitate collection of a money judgment here
4. Entitlement to statutory damages and fees	Bank: notice filed with reasonable legal basis	Defs: notices were groundless and justify damages/fees	Court: no damages or fees awarded because Bank’s position had substantial justification (novel legal question)

Robinson v. Robinson, 368 P.3d 147 (Utah Ct. App. 2016) (statute’s preliminary lis pendens filing requirements construed strictly)
Winters v. Schulman, 977 P.2d 1218 (Utah Ct. App. 1999) (primary purpose of lis pendens is to protect purchasers from litigation affecting title or possession; not for money judgments)
Hamilton v. Smith, 808 F.2d 36 (10th Cir. 1986) (Utah statute construed to prohibit lis pendens in anticipation of money judgment)
U.S. v. Jarvis, 499 F.3d 1196 (10th Cir. 2007) (substitute property yields only speculative interest insufficient for lis pendens use)
CFD Payson, LLC v. Christensen, 361 P.3d 145 (Utah Ct. App. 2015) (distinguishing personal property interests from real property interests for lis pendens purposes)
Commercial Investment Corp. v. Siggard, 936 P.2d 1105 (Utah Ct. App. 1997) (definition of a "groundless" claim under wrongful lien analogues)