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Notice of default vs lis pendens: what each filing means for timing and your offer
Updated · by the LowBaller team
A notice of default (NOD) and a lis pendens are both public records that signal a foreclosure has started, but they come from different systems. A notice of default is recorded by a trustee in nonjudicial, deed of trust states; a lis pendens is recorded when a lender sues to foreclose in a judicial state.
For an investor, the difference is timing. A notice of default starts a clock set by statute, often a few months to the auction. A lis pendens starts a lawsuit that moves at the court's pace. Both mark the start of pre-foreclosure, the best window to buy from an owner who still controls the sale. This guide explains each filing, compares them side by side, maps the timeline, and shows how each stage changes your offer.
Definition
Lis pendens: A recorded public notice that a lawsuit affecting title to a property has been filed, such as a judicial foreclosure; anyone who buys or lends on the property afterward takes it subject to the outcome of the case.
What is a notice of default?
A notice of default is a document recorded with the county that says the borrower has fallen behind on a loan secured by a deed of trust, and that the trustee intends to sell the property if the default is not cured. It usually names the borrower, the lender or beneficiary, the trustee, and the amount needed to bring the loan current.
It is used in nonjudicial foreclosure, where the deed of trust gives the trustee a power of sale and no court is involved. States such as California and Nevada record a notice of default. After the waiting period, the trustee records or posts a notice of sale with the auction date, and the property is sold at a trustee sale.
Not every nonjudicial state records a notice of default. In Texas, for example, the first public filing is usually the notice of sale itself, which under Texas Property Code section 51.002 must be filed with the county clerk at least 21 days before the sale, and sales are held on the first Tuesday of the month.
What is a lis pendens?
Lis pendens is Latin for a pending lawsuit. It is a notice recorded in the county land records that a lawsuit affecting title to the property has been filed. In a judicial foreclosure, the lender's attorney files a foreclosure complaint in court and records a lis pendens so that anyone who buys or lends on the property afterward is bound by the result.
From there, the case moves through the court. The owner can respond, the court enters a judgment if the lender wins, and a court-ordered sale follows, often run by the sheriff. Judicial foreclosure is used in states such as Florida, New York, New Jersey, Illinois, Ohio and Pennsylvania.
A lis pendens is not only for foreclosures. It is also recorded in divorce cases, partition suits between co-owners, quiet title actions, contract disputes and lien foreclosures. A lis pendens from a partition suit can be a strong lead (co-owners who cannot agree often want out), but it calls for a different conversation than a mortgage foreclosure.
Notice of default vs lis pendens: side by side
| Feature | Notice of default | Lis pendens |
|---|---|---|
| Foreclosure type | Nonjudicial (power of sale in a deed of trust) | Judicial (a lawsuit in court) |
| Who files it | The trustee or the lender's agent | The lender's attorney, alongside the court complaint |
| Where it appears | County recorder | Court docket, and recorded with the county |
| Court involved | No | Yes, a judge must enter judgment before a sale |
| What comes next | Notice of sale, then a trustee sale | Judgment, then a court-ordered sale |
| Typical timeline | Set by statute, often a few months | Set by the court, usually longer |
| Other uses | Foreclosure only | Divorce, partition, quiet title, lien and contract cases |
| Example states | California, Nevada | Florida, New York, New Jersey, Illinois, Ohio, Pennsylvania |
Foreclosure timeline: where each filing sits
Neither filing appears on the first missed payment. Under the federal mortgage servicing rule in Regulation X (12 CFR 1024.41(f)), a servicer generally cannot make the first notice or filing for foreclosure until the borrower is more than 120 days delinquent. So when a notice of default or lis pendens shows up on a home loan, the owner is usually at least four months behind.
California shows how short a nonjudicial clock can be. Under California Civil Code section 2924, at least three months must pass after the notice of default is recorded before a notice of sale, and the notice of sale must be given at least 20 days before the trustee sale. On paper, an auction can be about 231 days after the first missed payment. In practice, postponements, loan modification reviews and bankruptcy filings often stretch it.
| Stage | Nonjudicial state | Judicial state | What it means for your offer |
|---|---|---|---|
| First 120 days of missed payments | Late notices, nothing public yet | Same | Invisible to most buyers; the owner may still catch up |
| First public filing | Notice of default recorded (some states skip to a notice of sale) | Lis pendens recorded with the foreclosure complaint | The lead appears; the owner is usually more than 120 days behind |
| Waiting period | Fixed by statute (California: at least 3 months) | The owner can answer; the court calendar sets the pace | The best window to negotiate and close a cash sale |
| Sale scheduled | Notice of sale (California: at least 20 days before; Texas: at least 21) | Judgment, then a sale date set by the court | Urgency peaks; there may be days, not weeks, to close |
| Auction | Trustee sale | Court-ordered sale, often by the sheriff | If the owner has not sold, the chance to buy from them is gone |
| After the sale | Some states allow redemption; unsold homes become REO | Same | Buy at the auction, or later from the bank as REO |
Fastest possible California nonjudicial foreclosure, days from the first missed payment
What each filing means for your offer
Both filings put the owner in pre-foreclosure, which LowBaller's model weights at 22 points. Once a sale date is set, the weight jumps to 40 points for a scheduled auction, the strongest signal in the model. That jump tracks reality: an owner with a date has to decide now.
The discount still has to fit the debt. Example: a house worth $320,000, with a $1,800 monthly payment and five missed payments ($9,000) plus an assumed $3,000 in fees, so $12,000 to reinstate. If the loan balance is $150,000, the payoff is about $162,000. An offer 35 percent under value is $208,000. After about 4 percent in seller costs ($8,320), the owner walks away with about $37,680 and a stopped foreclosure. If the balance is $190,000 instead, the payoff is about $202,000, and the same $208,000 offer cannot close. The price has to rise to about $210,400 just to clear the debt and costs.
That is the job of LowBaller's equity cap: every suggested offer is capped so it still clears the owner's estimated mortgage and closing costs. Unlocking a seller pulls the county record, including the foreclosure filing, the amount in default, the opening bid when there is one, and open loans, and re-scores the offer on the verified payoff. For hard distress, the model targets start bids around 40 to 50 percent under estimated value and likely closes around 35 to 45 percent under, when the equity allows it.
Fresh filings beat old ones
A notice recorded last week is a live lead. One recorded a year ago has often been cured, modified or sold. Check the recording date and look for a release or rescission before you treat a filing as urgent.
How to find notices of default and lis pendens
- County recorder: search by document type (NOD, LIS, notice of sale) and date range. Many counties offer online search.
- Court docket: in judicial states, search new foreclosure cases by filing date. The complaint names the lender, the borrower and the amount claimed.
- Legal notices: many states require notices of sale to be published in a newspaper or posted at the courthouse.
- LowBaller: browse pre-foreclosure lists by city and foreclosures by county, or check your state's process on the foreclosure laws pages. The free market scan shows how many owners in pre-foreclosure are near you.
How to approach an owner after a filing
An owner who just received a notice of default or was served with a foreclosure complaint is under stress. Lead with options, not pressure. Many will reinstate, modify the loan or list with an agent, and some should. Your offer is one option: a fast, certain sale that stops the foreclosure and leaves them with their equity.
Start with a letter that explains what the filing means and what you can do. Follow with manual calls to Do-Not-Call-filtered numbers between 8am and 9pm local time. Never cold text. Our pre-foreclosure lead guide and negotiation guide cover the conversation.
Foreclosure purchase laws apply
Many states have foreclosure rescue or equity purchaser laws that add contract terms, disclosures and cancellation rights when you buy a home in foreclosure from the person living in it. Rules vary by state, so have a local real estate attorney review your contract.
Frequently asked questions
What is a lis pendens in real estate?
A lis pendens is a recorded notice that a lawsuit affecting a property's title has been filed. It is most often recorded at the start of a judicial foreclosure, but also in divorce, partition and quiet title cases. Anyone who buys or lends on the property afterward takes it subject to the lawsuit's outcome.
What is the difference between a notice of default and a lis pendens?
A notice of default starts a nonjudicial foreclosure under a deed of trust, with a trustee sale on a statutory timeline and no court. A lis pendens is recorded when a lender sues to foreclose in a judicial state, so the case moves at the court's pace. Both mean the owner is seriously behind.
How long after a notice of default is the auction?
It depends on the state. In California, at least three months must pass after the notice of default before a notice of sale, and the notice of sale must come at least 20 days before the auction, so about three months and 20 days at minimum. Postponements and loan reviews often make it longer.
Can you sell a house with a lis pendens on it?
Yes, but the buyer takes it subject to the lawsuit, so in a foreclosure the sale usually has to pay off the lender at closing, which ends the case. Title companies will require the payoff and a release or dismissal. In non-foreclosure cases, the lawsuit may need to be resolved first.
Does a notice of default mean foreclosure is certain?
No. After a notice of default the owner can usually reinstate the loan by paying the amount in default plus fees, negotiate a modification, or sell the property before the auction. Many filings are cured. That is why the pre-foreclosure window is the best time to make a fair offer.
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Find motivated sellersKeep reading
- Pre-foreclosure lists: how to find and work them
- How to buy a house at a foreclosure auction: a beginner's guide with a pre-bid checklist
- How to buy a foreclosed home: pre-foreclosure, auction or bank-owned, compared
- Reading the signals: equity, liens and time on the record
- What is a motivated seller? Meaning, the 9 signals, and how to verify each one