This matter grew out of an underlying dispute regarding real property. Charles Durosko's stepchildren filed an action against him in 1999 alleging that he improperly transferred a piece of real estate from a marital trust into his own name. In August 2006 the Superior Court entered judgment in favor of the stepchildren, and imposed a constructive trust on the property. However, in March of 2006 before the Court's Order, Mr. Durosko took out a mortgage on the property and secured the loan with a deed of trust, of which Bank of America has become the beneficiary. The Bank filed suit to quiet title to the property, alleging that the stepchildren failed to file proper notice under the D.C. statute, which was enacted to take effect on June 24, 2000, during the pendancy of the Durosko litigation.

"The concept of lis pendens — whether defined by statute or by common law — has the legal effect of providing constructive notice of pending litigation involving real property interests." Bank of America v. Griffin, *4. Under the District of Columbia common law lis pendens doctrine, simply filing an action that affected the title to real property was deemed sufficient to put potential purchasers on notice. The Court of Appeals noted that the common law doctrine was capable of leading to harsh results for good faith purchasers.

In response to such harsh results, the District of Columbia enacted a lis pendens statute, codified as D.C. Code § 42-1207(a) which required that a party to the litigation must file a notice for recordation that the real property may be affected by such litigation. Therefore potential buyers need not search court dockets, but only the land records to investigate the existence of such claims. There was no dispute that the Durosko stepchildren did not file such notice in regard to this litigation. Bank of America claimed that such a notice filing was necessary and that the statute should be applied retroactively.

The general rule in the District of Columbia is that a statute is not applied retroactively unless there is a clear legislative showing that the law is to be applied retroactively. Wolf v. District of Columbia Rental Accom. Comm'n, 414 A.2d 878 (D.C. 1980). Bank of America claimed that the lis pendens statute did contain such a legislative showing on the basis that the statute referenced "pendency of an action or proceeding" as opposed to the "filing of an action." The Court of Appeals determined that the use of the word "pendency" was insufficient to be deemed a clear legislative showing and that if the Legislature meant to give the statute retroactive effect, it would have done so expressly.

Further, Bank of America contended that the general rule regarding retroactive effect should not apply as this was a procedural, rather than substantive, application. The Court of Appeals found that requiring the filing of a notice of pending litigation was not clearly a procedural change; and therefore, the general rule should be given its normal effect. Accordingly, the Appellate Court affirmed the D.C. Superior Court's grant of summary judgment.