78B-6-1304 - Motions related to a notice of the pendency of an action.
78B-6-1304. Motions related to a notice of the pendency of an action.
(1) Any time after a notice has been recorded pursuant to Section 78B-6-1303, any of thefollowing may make a motion to the court in which the action is pending to release the notice:
(a) a party to the action; or
(b) a person with an interest in the real property affected by the notice.
(2) A court shall order a notice released if:
(a) the court receives a motion to release under Subsection (1); and
(b) the court finds that the claimant has not established by a preponderance of theevidence the probable validity of the real property claim that is the subject of the notice.
(3) If a court releases a notice pursuant to this section, the claimant may not recordanother notice with respect to the same property without approval of the court in which the actionis pending.
(4) Upon a motion by any person with an interest in the real property that is the subject ofa notice, a court may require the claimant to give the moving party a guarantee as a condition ofmaintaining the notice:
(a) any time after a notice has been recorded; and
(b) regardless of whether the court has received an application to release underSubsection (1).
(5) A person who receives a guarantee under Subsection (4) may recover an amount notto exceed the amount of the guarantee upon a showing that:
(a) the claimant did not prevail on the real property claim; and
(b) the person seeking the guarantee suffered damages as a result of the maintenance ofthe notice.
(6) A court shall award costs and attorney fees to a prevailing party on any motion underthis section unless the court finds that:
(a) the nonprevailing party acted with substantial justification; or
(b) other circumstances make the imposition of attorney fees and costs unjust.
Enacted by Chapter 3, 2008 General Session