§ 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 the following 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 the evidence 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 record another notice with respect to the same property without approval of the court in which the action is pending.

(4) Upon a motion by any person with an interest in the real property that is the subject of a notice, a court may require the claimant to give the moving party a guarantee as a condition of maintaining the notice:

(a) any time after a notice has been recorded; and

(b) regardless of whether the court has received an application to release under Subsection (1).

(5) A person who receives a guarantee under Subsection (4) may recover an amount not to 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 of the notice.

(6) A court shall award costs and attorney fees to a prevailing party on any motion under this 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