A Lesson in Filing Common Law Nuisance Liens
What do you think of this Johnson v. Murray 656 P.2d 170 (1982), 201 Mont. 495 case from Montana’s Supreme Court?
Here Patriot Myth Monger Daniel Murray got a $5 speeding ticket. He responded by sending various “common law” documents, including a nuisance lien, to the clerk and Highway Patrolman’s supervisor Johnson. Johnson sued in response. Murray even failed to pay a $10 filing fee for an answer.
Murray's motive: he wanted to punish the patrolman and his supervisor for the ticket. He thought he could do it without using the court, AND get away with it.
In the end the court awarded Johnson $100,000 compensatory, and $100,000 punitive damages, and the Montana Supreme Court affirmed with this admonition:
“While we feel that the defendant was misguided (by what or by whom we cannot know) in his interpretation of the law and the role of the courts, he aggravated that misguidance by deliberate, unprincipled actions which no society governed by law and not by men could tolerate. We have had other examples in recent years of persons asserting dark and ominous common law rights superseding our constitutions and our statutes. The attorney general of this state has been called upon to issue an opinion that nonstatutory "common law liens" filed against public officers on the mere whims of the claimed lienors are invalid, and to instruct county clerks and recorders not to accept the same for filing. There is a need for example against this kind of lien claims.
“Affirmance of the exemplary damages in this case may well alert those inclined to follow the example of Daniel Murray — they may well be traveling a rocky road.”
“Affirmance of the exemplary damages in this case may well alert those inclined to follow the example of Daniel Murray — they may well be traveling a rocky road.”
See opinion and dissent, and additional case law, below. You will note that courts have enjoined nuisance liens, penalized them, considered them perjury, and shown universal disdain for them. Why? Because genuine liens come as a consequence of a contract in which one party grants a lien to the other, such as for work done on the liened property, or some statute dictates the propriety of a lien. Courts provide the mechanism for disputing and resolving grievances and disputes between parties. The people give this power to courts through their constitutions and the statutes of their legislatures. They cannot, having yielded that degree of their sovereignty, wrest it back or ignore the yielding.
Patriot Myth Mongers and law seekers, try to remember that nonstatutory, common law nuisance liens constitute
unprincipled actions which no society governed by law and not by men could tolerate.
Texas and Florida Made Filing Nuisance Liens a Crime
In Texas filing them has constituted a crime since the Act of HB1185, 3 April 1997, provided below. See Penal Code 32.46.
Florida law includes nuisance liens in its general fraudulent lien statute 713.31
Florida law includes nuisance liens in its general fraudulent lien statute 713.31
713.31 Remedies in case of fraud or collusion.
(1) When the owner or any lienor shall, by fraud or collusion, deprive or attempt to deprive any lienor of benefits or rights to which such lienor is entitled under this part by establishing or manipulating the contract price or by giving false affidavits, releases, invoices, worthless checks, statements, or written instruments permitted or required under this part relating to the improvement of real property hereunder to the detriment of any such lienor, the circuit court in chancery shall have jurisdiction, upon a complaint filed by such lienor, to issue temporary and permanent injunctions, order accountings, grant discovery, utilize all remedies available under creditors' bills and proceedings supplementary to execution, marshal assets, and exercise any other appropriate legal or equitable remedies or procedures without regard to the adequacy of a remedy at law or whether or not irreparable damage has or will be done.
(2)(a) Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.
(b) It is a complete defense to any action to enforce a lien under this part, or against any lien in any action in which the validity of the lien is an issue, that the lien is a fraudulent lien; and the court so finding is empowered to and shall declare the lien unenforceable, and the lienor thereupon forfeits his or her right to any lien on the property upon which he or she sought to impress such fraudulent lien. However, a minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.
(c) An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent lien, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of the lien. The prevailing party in an action under this paragraph may recover reasonable attorney's fees and costs. If the lienor who files a fraudulent lien is not the prevailing party, the lienor shall be liable to the owner or the defrauded party who prevails in an action under this subsection in damages, which shall include court costs, clerk's fees, a reasonable attorney's fee and costs for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose of discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.
(3) Any person who willfully files a fraudulent lien, as defined in this section, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A state attorney or the statewide prosecutor, upon the filing of an indictment or information against a contractor, subcontractor, or sub-subcontractor which charges such person with a violation of this subsection, shall forward a copy of the indictment or information to the Department of Business and Professional Regulation. The Department of Business and Professional Regulation shall promptly open an investigation into the matter, and if probable cause is found, shall furnish a copy of any investigative report to the state attorney or statewide prosecutor who furnished a copy of the indictment or information and to the owner of the property which is the subject of the investigation.
Hold it! Just for fairness’ sake, I present to you Alfred Adask’s Common Law Lien study guide.
Yes, Alfred lives in Texas. He published the above document in 2002, FIVE years after filing common law liens became a crime in Texas.
Okay, stop and think. When you read that common law lien booklet of Alfred Adask’s, you come away with an idea that it could benefit you to file such a lien to get even, for example, with some high-handed crook in government. Now when you read the Johnson v Murray ruling, and the foregoing laws, don't you realize the courts take a dim view of it, and will punish you?
Make a Pragmatic "Right" Choice
So, you face these doors of choice:
· Red Door – file a common law lien to get even with a cop who cites you for speeding.
· Blue Door – use and obey the courts and administrative remedy - fight if you didn’t speed, or pay the fine if you did, and don’t speed again.
· Green Door – bribe a buddy cop to “fix” the ticket.
· Grey Door – ignore the ticket and hope it goes away and the government forgets it.
· Black Door – join the local Sovereign Citizen group, arm yourself, drill hard, rail against bully cops, and commit acts of violence for retribution.
Which door makes most sense to you?
My advice: do what you think right. Try to remember something, anything from your state constitution which established the judiciary and explained its function, and from your state’s administrative procedures act.
Parting Conundrum: What fate does the Senior Patriot Myth Monger deserve for instructing Daniel Murray in his delusional filing of common law nuisance liens instead of handling his ticket the right way?
Nuisance Liens Enjoined
(In one of the earliest instances, tax scofflaws who filed several different liens against an IRS agent was permanently enjoined from filing any sort of encumbrance agaianst any federal employee in any jurisdiction without first getting permission from a court, the existing liens were annulled, with instructions that copies of this decision should be posted in various recorders officers, and imposing a substantial fine) US v. Wagner (WD Wash unpub 4/12/94); US v. Lindbloom (WD Wash unpub 4/16/97) 79 AFTR2d 2578, 97 USTC para 50650; US v. Bailey (10th Cir unpub 12/9/97) 131 F3d 152(t), 80 AFTR2d 8258; Eismann v. Miller (1980) 101 Ida 692, 619 P2d 1145; US v. Moore (ND Okl unpub 9/7/93) 72 AFTR2d 6277, 93 USTC para 50653 aff’d 21 F3d 1122, 73 AFTR2d 1656; US v. Marsh a.k.a. Pilot (D Nev unpub 2/14/96) 77 AFTR2d 1069; Beard v. CIR (1984) 82 Tax Ct 766 (nr. 60) aff’d (6th Cir 1986) 793 F2d 139; US v. Greenstreet (ND Tex 1996) 912 F.Supp 224; US v. Hart (DND 1982) 545 F.Supp 470 aff’d 701 F2d 749; US v. Shanahan (WD Wash unpub 8/27/97); Ch.H. Cass v. R.J. Reynolds Tobacco Co (MDNC unpub 10/1/98) 82 AFTR2d 6967 (injunction did not violate perp's civil rights); Ryan v. Bilby (9th Cir 1985) 764 F2d 1325 (IRS employees, judges, magistrates and US prosecutor involved in tax case all immune from perp’s liens and lawsuits); US v. Van Dyke (D Ore 1983) 568 F.Supp 820 ("The 'Common Law Liens' are primitive affairs, basically consisting of captions such as 'Common Law lien on the Property and Hand Signature of the Following Persons', followed by a list of people. There is no explanation of how the 'lien' arose, not a recital of any legal action pending or concluded against the named parties. Tax protestors apparently obtain the names and addresses of the employees of the IRS and other federal employees and file these 'liens' out of spite.... The so-called liens are of course invalid and of no legal force or effect. However, they are used ... to harass IRS employees and deter them from enforcing the tax laws."); (liens and "posse comitatus common law great charter") US v. Hart (D ND 1982) 545 F.Supp 470 aff’d (8th Cir 1983) 701 F2d 749; US v. Laeger (WD La unpub 1996) 77 AFTR2d 2123 (filing with registrar a so-called "declaration in trespass" against named IRS employees treated as if a nuisance lien even though the "trespass" document has no legal significance); (mailing bogus liens to county recorder enjoined as mail fraud) US v. Anderson (ND IL unpub 9/25/98); US v. Potter (ED Mich unpub 7/29/97) 80 AFTR2d 6041, 97 USTC para 50762 aff'd (6th Cir unpub 12/18/98) 172 F3d 874(t), 99 USTC para 50161, 83 AFTR2d 305 (filed "American Citizens liens" which "admittedly harassed ... federal officials in an attempt to prevent their enforcement of internal revenue laws" and "thereby imposed irreparable harm on them"); US v. Haggard (D Me unpub 2/12/96) 77 AFTR2d 1309 ("an unlawful attempt to interfere with the enforcement of the internal revenue laws of the United States"); ("Such attempts to torment federal employees due to their participation in the enforcement of federal criminal laws cannot and will not be tolerated." Prisoner who filed liens against the judge and prosecutor was ordered to release the liens or else federal marshals would remove the liens) US v. Poole (CD IL 1996) 916 F.Supp 861; ditto (and enjoined from filing any future liens against current or former federal officials without court permission) US v. Anderson (ND IL unpub 9/25/98); ditto (explicitly referring to bogus liens against a former IRS auditor) US v. Scott (ND Ind unpub 2/4/98) 81 AFTR2d 1076 judgmt entered (ND Ind unpub 10/8/98); ditto US v. McKinley (10th Cir 1995) 53 F3d 1170 (filed "Citizen-Customer Just Compensation Liens" against the federal judge and prosecutor in pending case against him. His lien papers contained such statements as "You are my public servant and I am your citizen-customer, and ... I have the commercial power to enforce your specific performance with a Commercial Just Compensation Customer's Lien .... Your relationshhip to me as a public servant, and your oath of office, give me consent to file consensual commerceial liens against you.... Your oath of office and your consequen public responsibility as a public servant, when violated by you, are my commercial authority to file a Just Compensation Lien against you... You will comply .. and rectify the lien claimant's problem or you will lose your property." Nullified on the motion of the govt, "it is a power that has no mooring in either federal or state law. The liens, in any event, purport to secure assets to which [he] would have no legal claim even were his civil rights action to succeed."); similarly US v. Barker (SD Ga 1998) 19 F.Supp.2d 1380 ("neither federal nor state law provides that a citizen may file a lien on the property of a public official for alleged wrongs committed by that official against the citizen without the existence of a judgment in the citizen's favors. The citizen must first take his grievance to court ...."; that these documents are titled "Non-statutory, non-judicial, non-summary-disposable UCC commercial paper/liens" practically admits that they are baseless); similarly US v. Willenberg (9th Cir unpub 8/9/94) 74 AFTR2d 5930; (enjoined not only against filing liens but from any other contact with IRS employees except at the IRS offices) US v. MacElvain (MD Alab 1994) 858 F.Supp 1096 aff'd (11th Cir 1995) 68 F3d 486(t); (enjoined under any of the many titles used in the documents, including "solemn recognition of mixed war" and "writ of attachment") US v. Trowbridge (D Ida unpub 9/13/93) aff’d (9th Cir 1994) 43 F3d 1480(t); similarly (so-called "UCC-4 Non-Negotiable ‘True Bill’ Private Agreement" lien filed with county clerk and "Citizens Warrant for Citizens Arrest" sent to IRS employees) US v. Moore (ND Okl unpub 9/7/93) 72 AFTR2d 6277, 93 USTC para 50653 aff’d (10th Cir 1994) 21 F3d 1122(t), 73 AFTR2d 1656; US v. Knudson (D Neb 1997) 959 F.Supp 1180; US v. Ekblad (7th Cir 1984) 732 F2d 562; US v. Andra (D Ida 1996) 923 F.Supp 157; US v. Lerch (ND Ind unpub 3/28/97) 79 AFTR2d 2195; Greenstreet v. Heiskell (Tex.App 1997) 940 SW2d 831 reh.den 960 SW2d 713; US v. Kaun (ED Wis 1986) 633 F.Supp 406 aff'd 827 F2d 1144; (Pilot Connection Society criminally prosecuted for promoting its tax evasion scheme including instructions to try to get IRS employees arrested or making citizen's arrests of IRS employees) US v. Clark (5th Cir 1998) 139 F3d 485 cert.den _US_, 119 S.Ct 227; actually making a "citizen's arrest" of an IRS agent prosecuted and convicted, with 3 yrs imprisonment, under 18 USC 111 for assaulting, intimidating or interfering with a federal officer in performance of duties. US v. Pazsint (9th Cir 1983) 703 F2d 420 aff'd after remand (9th Cir 1984) 728 F2d 411; (sending such an arrest warrant relating to a federal judge, even one who has already recused himself from a pending case, will be punished severely as obstruction of justice and interfering with a federal officer) US v. Fulbright (9th Cir 1997) 105 F3d 443 cert.den 520 US 1236; US v. Criswell (D Ore unpub 8/31/95) 76 AFTR2d 6481 (district ct empowered to enjoin perp from filing any more liens against IRS employees by 26 USC sec. 7402(a), which authorizes any orders necessary to enforce the tax laws); ditto (clerks and recorders instructed not to accept documents titled "common law liens" and "common law writs of attachment", or if these are filed these should be ignored as null and void) Saenger v. Brown (D Ore unpub 5/3/88) 61 AFTR2d 1240, 88 USTC para 9404; ditto US v. Van Skiver (D Kan unpub 12/13/90) 71A AFTR2d 4063, 91 USTC para 50017 aff'd US v. Kettler [& Van Skiver](10th Cir unpub 6/3/91) 934 F2d 326(t); ditto US v. Lutz (ED Ky unpub 7/1/94) 74 AFTR2d 5517, 94 USTC para 50553 ("Therefore, this court, as with every court to have considered this issue, determines that injunctive and declaratory relief is appropriate ...."); similarly (perp quibbled that his "commercial liens" were somehow different from other perps’ "common law liens" but court invalidated and enjoined them, plus some other forms such as "solemn recognition of mixed war" and "affidavit of criminal complaint", all the same) US v. Trowbridge (D Ida unpub 7/16/93) aff’d (9th Cir unpub 1994) 43 F3d 1480(t); ditto US v. Haggert (D Me unpub 2.12.96) 77 AFTR2d 1309; (also invalidated and enjoined the filing of documents, not only liens but "notices" of criminal accusations against IRS employees and the like) US v. Kettler [& Van Skiver](10th Cir unpub 6/3/91) 934 F2d 326(t); "common law liens" are only available against personal property not real property and only for a creditor in possession, law does not recognized a lien arising from "unlawful actions", and enjoined attempts to file nuisance lien against property of federal judge and his family without first obtaining approval of another federal judge. Moore v. Surles (ED NC 1987) 673 F.Supp 1398; similarly (in Wisc., a common law lien exists only "where a person bestows labor upon an article or does some act with reference to that article... This, of course, has nothing to do with the present situation....") Peth v. Breitzman (ED Wis 1985) 611 F.Supp 50; similarly ("Where there is no debt, ... in the absence of a law, a lien cannot exist. An examination of the record before us does not reveal any debt in existence .... Terpstra has merely filed a tort claim ... which has yet to proceed to judgment. A pre-judgment tort claim is not a debt and to treat it as such would be improper. ... In cases of common-law liens, in order that such a lien may be kept alive, it is absolutely essential that the person claiming the lien should retain and hold an idependent and exclusive possession of the particular chattel. Whenever he voluntarily surrenders its possession his lien is lost .... It appears then, that in order for Terpstra to have a valid common-law lien, two elements are necessary - - debt and possession. In the instant case, both elements are missing.... Today common law liens are creatures of statute, and, when there is no express statute authorizing a lien on land, an instrument purporting to do so is void.") Terpstra v. Farmers & Merchants Bank (Ind.App 1985) 483 NE2d 749; similarly (and there is no legal authority for asserting that the Constitution authorizes a so-called common law lien) US v. Lerch (ND Ind unpub 3/28/97) 79 AFTR2d 2195
Frivolous Liens Invalidated
US v. Lindbloom (WD Wash unpub 4/16/97) 79 AFTR2d 2578, 97 USTC para 50650; Eismann v. Miller (1980) 101 Ida 692, 619 P2d 1145; US v. Marsh a.k.a. Pilot (D Nev unpub 2/14/96) 77 AFTR2d 1069; Beard v. CIR (1984) 82 Tax Ct 766 (nr. 60) aff’d (6th Cir 1986) 793 F2d 139; US v. Greenstreet (ND Tex 1996) 912 F.Supp 224; Simmons v. CIR (6/16/97) TC Memo 1997-269; US v. Hart (DND 1982) 545 F.Supp 470 aff’d 701 F2d 749; Ryan v. Bilby (9th Cir 1985) 764 F2d 1325; US v. Boos [& Gunwall] (10th Cir unpub 1/14/99) 166 F3d 1222(t), 83 AFTR2d 584 cert.den _US_, 119 S.Ct 1795 (and subsequently prosecuted) ; US v. Frlekin (9th Cir unpub 1/19/95) 46 F3d 1147(t), 75 AFTR2d 841 (and appealing the nullification of a bogus lien on an IRS agent's property was so obviously frivolous as to get a $1500 fine); Ch.H. Cass v. R.J. Reynolds Tobacco Co (MDNC unpub 10/1/98) 82 AFTR2d 6967 (invalidation of nuisance liens did not violate perp's civil rights); US v. Van Dyke (D Ore 1983) 568 F.Supp 820 (tax protesters attempted to file against IRS employees something called "hand signature liens" which "supposedly ... have mystical power to prevent the target individuals from signing letters, checks, deeds, contracts, and the like", the court also issued a Declaration to be posted in all registrars’s offices that such liens were invalid and not to be accepted); similarly Johnson v. Murray (1982) 201 Mont 495, 656 P2d 170; US v. Laeger (WD La unpub 1996) 77 AFTR2d 2123 (document filed with registrar resembling a civil or criminal complaint against named IRS employees treated as if a nuisance lien); US v. Anderson (ND IL unpub 9/25/98); US v. Ekblad (7th Cir 1984) 732 F2d 562; Saenger v. Brown (D Ore unpub 5/3/88) 61 AFTR2d 1240, 88 USTC para 9404; US v. Potter (ED Mich unpub 7/29/97) 80 AFTR2d 6041, 97 USTC para 50762 aff'd (6th Cir unpub 12/18/98) 172 F3d 874(t), 99 USTC para 50161, 83 AFTR2d 305; US v. Kettler [& Van Skiver](10th Cir unpub 6/3/91) 934 F2d 326(t); ("Every jurisdiction faced with similar liens have found them of no legal effect") US v. Haggard (D Me unpub 2/12/96) 77 AFTR2d 1309; ditto US v. Barker (SD Ga 1998) 19 F.Supp.2d 1380; similarly US v. McKinley (10th Cir 1995) 53 F3d 1170; (a lien is a security for a debt, where there is no debt a lien cannot exist, and a prejudgment tort claim cannot support a lien, and state circuit court had inherent power to nullify and expunge bogus liens) Terpstra v. Farmers & Merchants Bank (Ind.App 1985) 483 NE2d 749; (noting that the tax protester ignored all the proper remedies and responses to tax audits and bills and resorted to liens against IRS employees) US v. MacElvain (MD Alab 1994) 858 F.Supp 1096 aff'd (11th Cir 1995) 68 F3d 486(t); ditto in reaction to a $5 traffic ticket (and the enormity of the lien contrasted with the motivation used as evidence of malice, with substantial damages) Johnson v. Murray (1982) 201 Mont 495, 656 P2d 170; (invalidated under a wide variety of titles) US v. Trowbridge (D Ida unpub 9/13/93) aff’d (9th Cir 1994) 43 F3d 1480(t); similarly US v. Knudson (D Neb 1997) 959 F.Supp 1180; similarly (referring to "any document" indicating that a former IRS agent owed the perp something) US v. Scott (ND Ind unpub 2/4/98) 81 AFTR2d 1076 judgmt entered (ND Ind unpub 10/8/98); similarly ("UCC-4 non-negotiable true bill private agreement lien") US v. Moore (ND Okl unpub 9/7/93) 72 AFTR2d 6277, 93 USTC para 50653 aff’d (10th Cir 1994) 21 F3d 1122(t), 73 AFTR2d 1656; US v. Hart (D ND 1982) 545 F.Supp 470 aff’d (8th Cir 1983) 701 F2d 749; (rejecting claim that nuisance liens against judge and prosecutor were "commercial" and noting that prisoner admitted he had no judgment debts against them) US v. Anderson (ND IL unpub 9/25/98); ("The so-called 'Notices of Common Law Lien' are worthless scraps of paper and have no legal effect.") Peth v. Breitzman (ED Wis 1985) 611 F.Supp 50; (rejecting a supposed "social contract" argument that govt employees personally owe him for any dissatisfaction in their performance) US v. McKinley (10th Cir 1995) 53 F3d 1170; ditto US v. Barker (SD Ga 1998) 19 F.Supp.2d 1380; (filing a document titled "a Security [15 USC] Claim of Commercial Lien and Affidavit") US v. R. Bailey (10th Cir unpub 11/22/95) 72 F3d 138(t), 79 AFTR2d 1045; (Ariz law enables and requires registrars to "remove" invalid liens and this may be done by adding to the file an official document negating the invalid lien) Purcell v. Superior Court (Ariz.App 1992) 172 Ariz 166, 835 P2d 498; US v. Andra (D Ida 1996) 923 F.Supp 157; US v. Lerch (ND Ind unpub 3/28/97) 79 AFTR2d 2195; Rylander v. Wilkens (ED Calif unpub 12/13/79) 45 AFTR2d 890, 80 USTC para 9141; ("As other courts have noted, there are appropriate avenues by which taxpayers and bankruptcy litigants may file complaints about govt employees, and the Court cannot condone the filing of bogus, unauthorized liens as some form of protest or means of intimidation." Court permanently enjoined perp from filing any lien or pleading or other document in either federal or state court without first obtaining court approval and ordered the clerk to refuse any submission that was not approved.) US v. Lerch (ND Ind unpub 9/10/98) 82 AFTR2d 6520, 98 USTC para 50752; (order invalidating nuisance liens against certain IRS employees also instructed registrars to photocopy and post a copy of the court order to prevent any future attempts to file such liens by the same perp or against the same employees) US v. Criswell (D Ore unpub 8/31/95) 76 AFTR2d 6481; ditto US v. Lutz (ED Ky unpub 7/1/94) 74 AFTR2d 5517, 94 USTC para 50553 (perp called his fictitious liens "consensual liens", which they clearly were not); ditto US v. Shanahan (WD Wash unpub 8/27/97) (perp called them "commercial liens"); (in a non-political case, lis pendens filed by the plaintiffs against the defendants while a suit for money damages was pending were immediately expunged by the court, with a scolding, as lis pendens are applicable only where the encumbered property itself is at issue) Bly v. Gensmer (Minn.App 1986) 386 NW2d 767; (attempt to extract money from IRS employees by sending them UCC-style Demand for Payment, and then trying to enforce same in court) Cole v. Higgins (D Ida unpub 1/23/95) 75 AFTR2d 1102 rept adopted by (D Ida unpub 2/27/95) 75 AFTR2d 1479 aff'd (9th Cir 1996) 82 F3d 422(t), 77 AFTR2d 1586; (sending IRS agents his UCC-style Demand letters followed by a summons from Our One Supreme Court justifies the very severe punishment set for "terrorists") US v. J.V. Wells (4th Cir 1998) 163 F3d 889; (federal court may instruct state or county recorder to remove fictitious liens) US v. Van Skiver (D Kan unpub 12/13/90) 71-A AFTR2d 4063, 91 USTC para 50017 aff'd US v. Kettler [& Van Skiver](10th Cir unpub 6/3/91) 934 F2d 326(t); US v. Knudson (D Neb 1997) 959 F.Supp 1180; Moore v. Surles (ED NC 1987) 673 F.Supp 1398; Rylander v. Wilkens (ED Calif unpub 12/13/79) 80 USTC para 9141, 45 AFTR2d 890; ditto ("It is by now established beyond dispute that the US may request the assistance of Art.III courts to protect its officials from attempts at harassment, intimidation, and extortion in the form of 'liens'.") US v. Barker (SD Ga 1998) 182 FRD 661; (where a prisoner had filed bogus liens against the federal judge and prosecutor in his trial and even against his own defense lawyer, the federal court could invalidate and order the removal of all the liens, even the one against the defense lawyer who was not a federal employee) US v. Poole (CD IL 1996) 916 F.Supp 861; cf. (federal court may order removal of improper lis pendens) Texas Extrusion Corp v. Lockheed Corp (5th Cir 1988) 844 F2d 1142 cert.den 488 US 926; similarly (federal Bankruptcy judge could nullify nuisance lien filed against a state judge by the bankruptcy petitioner; moreover the petitioner's use of a bogus lien against a judge was sufficient grounds to deny a motion for forma pauperis) In re J.M. Anderson (Bankr., WD Mich 1991) 130 Bankr.Rptr 497; (court invalidated perp's filings which purported to "release" liens that had been validly filed against them by the IRS) US v. Van Skiver (D Kan unpub 12/13/90) 71A AFTR2d 4063, 91 USTC para 50017 aff'd US v. Kettler [& Van Skiver](10th Cir unpub 6/3/91) 934 F2d 326(t); (cannot pretend that a lien has become "consensual" because the victim did not respond to the perp's deadlines and threats) US v. Andra (D Ida 1996) 923 F.Supp 157; similarly (because UCC is inapplicable to IRS, the failure of the IRS to respond to the perp's UCC-type demands within his deadline does not constitute a default or admission) Holling v. US (ED Mich unpub 11/27/95) 76 AFTR2d 6968, magistrate's recommendation (ED Mich unpub 2/6/96) 77 AFTR2d 1052, sanctions imposed (Ed Mich 5/17/96) 934 F.Supp 251; in the case of a prison inmate who filed bogus liens against the judge, prosecutor and even his own lawyer, the federal court declared all the liens (even the one against his own lawyer) invalid and ordered him to release the liens or else federal marshals would remove the liens. US v. Poole (CD IL 1996) 916 F.Supp 861; (explicitly referring to bogus liens against a former IRS auditor) US v. Scott (ND Ind unpub 2/4/98) 81 AFTR2d 1076 judgmt entered (ND Ind unpub 10/8/98);
No Authenticity
[(on a slightly different note, held that the recording of a title document -- such as a lien -- with the county recorder does not imbue it with any additional authenticity or validity, the document is as valid or invalid as before, but only imparts public notice) Shirk v. Thomas (1889) 121 Ind 147, 22 NE 976, 16 Am.St.Rep 381; cf (where defendant wrote up his own title document to land he had never owned, recorded this document and then attempted to sell the land) Industrial Devel. Bd of Tullahoma v. Hancock (Tenn.App 1995) 901 SW2d 382; (the recorder of deeds is a creation of statute and therefore cannot be compelled to do, nor sued for not doing, something not authorized by law) Federal Intermediate Credit Bank v. Maryland Casualty Co. (1935) 194 Minn 150, 259 NW 793 (e.g. not issuing a document not required by law); State ex rel Ashton v. Register of Deeds (1880) 26 Minn 521, 6 NW 337 (e.g., for refusing to accept a deed which lacks the certificate required by law that shows all taxes have been paid); in some states the recorders have been given explicit instructions from the courts or the atty-general or by statute to refuse certain items: (e.g. documents from "Our One Supreme Court", or sham liens especially against govt employees) Nash v. McIntosh (1997) 328 So.Car 76, 492 SE2d 75; Texas Atty-Gen Letter Op 97-14 (2/28/97); Texas Atty-Gen Op. DM-389 (5/2/96); Texas Atty-Gen Letter Op 98-16 (3/13/98); Wash.Atty-Gen 1996 Opinion nr. 12 (7/31/96); 1996 Ohio Atty-Gen Opinions 69, nr. 96-19 (3/14/96); Opinion of Nebraska Atty-Gen, nr. 233 (11/2/84); Calif. Civil Code sec. 765.010 (amended 1997); So.Car. Code Ann. sec. 30-9-35 (amended 1998); 12 Okla. Statutes sec. 1533 (amended 1997); Ore.Rev.Stat. sec. 205.455 (amended 1997); and many more]
Frivolous Liens PenalizedUS v. Bailey (10th Cir 12/9/97) 131 F3d 152 (t), 80 AFTR2d 8258 (5 yrs probation, revoked when he was caught for not filing tax returns for two years); (wrote up liens against traffic cop, traffic judges, and others, with their forged signatures and a fake seal and then offered to remove the liens if they would undo the suspension of his license; convicted of attempted criminal syndicalism and several counts of fraud) State v. Whalen (Ariz.App 1997) 192 Ariz 103, 961 P2d 1051 app.denied (Ariz Supm unpub 9/10/98); US v. Kuball (9th Cir 1992) 976 F2d 529, 70 AFTR2d 6080, 92 USTC para 50501; State v. Stephenson (1998) 89 Wash.App 794, 950 P2d 38 (prosecuted as threatening a govt employee); Beard v. CIR (1984) 82 Tax Ct 766 (nr. 60) aff’d (6th Cir 1986) 793 F2d 139; Ryan v. Bilby (9th Cir 1985) 764 F2d 1325; US v. Hart (8th Cir 1983) 701 F2d 749; US v. Greenstreet (ND Tex 1996) 912 F.Supp 224; US v. McKinley (10th Cir 1995) 53 F3d 1170; US v. Boos [& Gunwall] (10th Cir unpub 1/14/99) 166 F3d 1222(t), 83 AFTR2d 584 cert.den _US_, 119 S.Ct 1795 (both the pretended creditor and the purported intermediary who prepared and filed the lien for him charged and convicted of impeding federal employees in their duties and of obstructing the administration of the revenue laws); US v. Potter (ED Mich unpub 7/29/97) 80 AFTR2d 6041, 97 USTC para 50762 aff'd (6th Cir unpub 12/18/98) 172 F3d 874(t), 99 USTC para 50161, 83 AFTR2d 305 (required perps to list all the federal employees against whom they had filed "American Citizens liens", and list all the other offices where liens had been filed, and further required to pay all costs and to submit proof of compliance); US v. Anderson (ND IL unpub 9/25/98) (because a lien is a claim, and this against federal employees for their official acts it become a claim against the federal govt, nuisance lien is prosecuted under the False Claims Act); (because the liens were groundless and intended only for harassment or extortion, mailing the liens to the county recorder was prosecuted and enjoined as mail fraud) US v. Anderson (ND IL unpub 9/25/98); (convicted of corruptly endeavoring to obstruct the administration of the tax laws, 26 USC 7212) US v. MacElvain (MD Alab 1994) 858 F.Supp 1096 aff'd (11th Cir 1995) 68 F3d 486(t); similarly (punished as obstruction of justice) US v. Koff (9th Cir 1994) 43 F3d 417 cert.den 514 US 1008; similarly US v. Winchell (10th Cir 1997) 129 F3d 1093 (perp sent IRS employees letters claiming to have filed nuisance liens against them, even though no such liens had actually been filed he was convicted); similarly (filing bogus "common law" liens against individual IRS employees not protected as "petitioning govt" under First Amendment) US v. Reeves (5th Cir 1986) 782 F2d 1323 cert.den 479 US 837; similarly (cannot pretend that the lien was "to force [the IRS employee] to act within the scope of her authority" because "even if we were to find that agent ... had been acting outside of the scope of her duties - which we do not - it would still not provide a basis for the filing of a lien against her property.") US v. Frlekin (9th Cir unpub 1/19/95) 46 F3d 1147(t), 75 AFTR2d 841; similarly (cannot excuse bogus lien as being a preliminary to an anticipated civil suit, esp since the suit would have to be against the govt generally and not this individual employee and the pretext of the suit is hopeless) US v. Reeves (5th Cir 1985) 752 F2d 995 cert.den 474 US 834 and conviction upheld after remand (5th Cir 1986) 782 F2d 1323 cert.den 479 US 837; similarly US v. Trowbridge (9th Cir unpub 3/26/97) 110 F3d 71(t) cert.den 520 US 1235; similarly (under 26 USC 7212) one count for each bogus lien. US v. R. Bailey (10th Cir unpub 11/22/95) 72 F3d 138(t), 79 AFTR2d 1045; (fined) US v. Knudson (D Neb 1997) 959 F.Supp 1180; US v. Ekblad (7th Cir 1984) 732 F2d 562; US v. Moore (ND Okl unpub 9/7/93) 72 AFTR2d 6277, 93 USTC para 50653 aff’d (10th Cir 1994) 21 F3d 1122(t), 73 AFTR2d 1656; Greenstreet v. Heiskell (Tex.App 1997) 940 SW2d 831 reh.den 960 SW2d 713; Rylander v. Wilkens (ED Calif unpub 12/13/79) 45 AFTR2d 890, 80 USTC para 9141; (bankruptcy petitioner's filing of bogus lien against a state judge was sufficient grounds to deny motion for forma pauperis) In re J.M. Anderson (Bankr., WD Mich 1991) 130 Bankr.Rptr 497; (ordered to pay atty's fees for victims of his liens and further ordered that he must be represented by a lawyer if he ever commences another lawsuit) People v. Dunlap (Colo. 1981) 623 P2d 408; (ordered to pay $1000 per day to the victim until the lien is removed; held that the lien was groundless because "a groundless document is one as to which a proponent can advance no rational argument based on evidence or law to support his claim of a lien" and in this instance filing liens to coerce compliance with an invalid or non-existence contract meets that description, and this applies even if the contract appeared valid when the lien was first filed but the defendant refused to remove or cancel the lien when the contract ceased to be valid) Harris v. Hanson (Colo.App 1991) 821 P2d 821; (ordered to pay attorneys costs for the govt lawyer who represented several govt employees who had all been the target of bogus liens) Rylander v. Wilkens (ED Calif unpub 12/13/79) 80 USTC para 9141, 45 AFTR2d 890; (held that US Attorney may bring action against perp who filed fictitious liens against federal employees) US v. Bey (6th Cir unpub 6/18/98) 149 F3d 1185(t); "Filing a false UCC form, or issuing an illegitimate arrest warrant is prohibited -- the statutes are not impermissibly vague as applied." US v. Fulbright (9th Cir 1997) 105 F3d 443 cert.den 520 US 1236; 26 USC 7212 (interference with the administration of the internal revenue laws) is constitutional and not void for vagueness. US v. Bailey (10th Cir unpub 11/22/95) 79 AFTR2d 1045; the perp's behavior, during his criminal trial for obstruction of justice for fictitious liens against IRS employees, of persisting to dispute the legitimacy of the income tax laws justifies the court's imposing a maximum sentence. US v. Bailey (10th Cir unpub 11/22/95) 79 AFTR2d 1045; (two months jail for "indirect criminal contempt" for filing nuisance liens and false 1099s against traffic court judge) People v. Smeathers (1998) 297 IL App.3d 711, 698 NE2d 18; penalized under Fed Rule of Civil Proc 11. Moore v. Surles (ED NC 1987) 673 F.Supp 1398; (conspirators who filed bogus liens against IRS employees convicted of both impeding or injuring federal officers in their duties, 18 USC 372, and with corruptly obstructing the internal revenue laws, 26 USC 7212) US v. Boos [& Gunwall] (10th Cir unpub 1/14/99) 166 F3d 1222(t), 83 AFTR2d 584 cert.den _US_, 119 S.Ct 1795; the criminal prosecution for filing a fictitious lien does not require that the document must appear to trained lawyers to be a properly drafted lien, and it is sufficient to prosecute if the document filed merely purported to be an encumbrance on property even though it was amateurish and defective. (in these two Colorado cases the document was not even titled a Lien but "Notice of Equity Interest and Claim") People v. Marston (Colo.Supm 1989) 772 P2d 615; ditto People v. Forgey (Colo.Supm 1989) 770 P2d 781 cert.den 493 US 839; ditto (convicted of criminal slander of title, with two years of prison, for filing lis pendens and "common law liens" against various parcels of land amounting to every piece of property in town) State v. Minniecheske (1984) 118 Wis.2d 357, 347 NW2d 610; similarly (lawyer disciplined for filing a lis pendens against real property as part of a lawsuit which did not involve title to that property) In re Bowen (1989) 160 Ariz 558, 774 P2d 1348; (lawyer disbarred for filing a fraudulent lien, among other offenses) In the matter of Mahshie (1989) 145 App.Div.2d 164, 538 NYS2d 121 cert.den 493 US 1045; (filed a lien issued by "Our One Supreme Court" against a traffic judge) State v. Cella (Mo.App 1998) 976 SW2d 543 (but, in Cella's case, a conviction for tampering with a judge overturned because local rules allow one pre-emptory recusal motion); (threatening to have "Our One Supreme Court" proceed against IRS employees is severely punished as a "terrorist" act) US v. J.V. Wells (4th Cir 1998) 163 F3d 889; ("A property owner who has a lien recorded against his title is not without recourse. ... Quiet title actions are a statutory as well as an equitable remedy. .... Another possible action by an owner with a spuriously clouded title is a retaliatory suit for slander on title." Terpstra v. Farmers & Merchants Bank (Ind.App 1985) 483 NE2d 749
(for the paperwork associated with filing the lien)
State v. Carr (1994) 319 Ore 408, 877 P2d 1192; similarly People v. Feinberg (1997) 51 Cal.App.4th 1566, 60 Cal.Rptr.2d 323; similarly State v. Shouse (Fla.App 1965) 177 So.2d 731; (court enjoined perps and anyone "in active concert or participation with them" from filing any more nonconsensual liens against any federal employee, and would punish a violation of this order with a fine or imprisonment or both) Saenger v. Brown (D Ore unpub 5/3/88) 61 AFTR2d 1240, 88 USTC para 9404; ditto US v. Van Dyke (D Ore 1983) 568 F.Supp 820; ditto US v. Criswell (D Ore unpub 8/31/95) 76 AFTR2d 6481; (phone calls to the home and numerous faxes to the office of a govt employee threatening to file nuisance liens prosecuted under 18 USC 111 as assaulting, intimidating or interfering with a govt employee) US v. Holdsworth (D Colo 1998) 990 F.Supp 1274 (but, in Holdsworth case, conviction on another count, namely disorderly conduct in a govt building, overturned because the applicable reg depends on physical presence inside the govt building); (Pilot Connection Society criminally prosecuted for promoting its tax evasion scheme, which included instructing people to file nuisance liens against IRS employees and against employers for withholding taxes or reporting income to the IRS) US v. Clark (5th Cir 1998) 139 F3d 485 cert.den _US_, 119 S.Ct 227; similarly for filing bogus liens and issuing "warrants for citizens arrests" against IRS agents, a judge, the Solicitor General, and other federal officers. US v. Gunwall (10th Cir unpub 8/12/98) 156 F3d 1245(t), 82 AFTR2d 5868 cert.den (Moore v. US) _US_, 119 S.Ct 563; and conviction upheld (for both injuring federal officers and for obstructing tax laws) US v. Boos [& Gunwall] (10th Cir unpub 1/14/99) 166 F3d 1222(t), 83 AFTR2d 584 cert.den _US_, 119 S.Ct 1795; (prosecuted as threatening a govt employee) State v. Stephenson (1998) 89 Wash.App 794, 950 P2d 38; (prosecuted as criminal slander of title) State v. Minniecheske (1984) 118 Wis.2d 357, 347 NW2d 610; (similarly grounds for successful civil suit for slander of title, emotional distress, and other torts, including attorneys fees and punitive damages, in this case amounting to more than $200G; "While we feel that the defendant was misguided (by what or by whom we cannot know) in his interpretation of the law and the role of the courts, he aggravated that misguidance by deliberate, unprincipled actions which no society governed by law and not by men could tolerate. We have had other examples in recent years of person asserting dark and ominous common law rights superseding our constitutions and our statutes. ... Affirmance of the exemplary damages in this case may well alert those inclined to follow the example ... they may well be traveling a rocky road.") Johnson v. Murray (1982) 201 Mont 495, 656 P2d 170; (filing or threatening to file an enormous bogus lien against the employee of a bank that had rejected his funny money used as further evidence of criminal intent in prosecution for fraud and negates a good faith defense) US v. Moser (5th Cir 1997) 123 F3d 813 cert. denied 522 US 1035; (sentences for filing fake 1099 forms and bogus liens against IRS employees are same sentence as for obstruction of justice) US v. Koff (9th Cir 1994) 43 F3d 417 cert.den 514 US 1008; (sending false 1099s to his victims but not to the IRS still punished, with a substantial fine under 18 USC sec. 1001, for making a false statement to the govt on the very reasonable expectation that his victims would forward copies of his forms to the IRS) US v. Meuli (10 Cir 1993) 8 F3d 1481 cert.den 511 US 1020; (same vexing of traffic court judge punished with two months jail for indirect criminal contempt) People v. Smeathers (1998) 297 IL App.3d 711, 698 NE2d 181; (filing bogus liens against IRS employees is evidence of criminal intent in trial for tax evasion) Simmons v. CIR (6/16/97) TC Memo 1997-269; (convicted of perjury and tampering with records for falsely swearing on notarized form which was part of court filing that he had served the subpoena on an intended witness) State v. Walker (Iowa 1998) 574 NW2d 280; (filing in a pending case documents called a "notice and demand" making outrageous accusations against judge, and a "citizen's arrest warrant" supposedly authorizing the arrest of that judge, will be severely punished -- with two years of prison -- for obstruction of justice and interfering with a federal judicial officer, and this even though the judge had recused himself and been replaced in this case before these documents were filed, and in this case the fact that this same perp had also filed a "UCC lien" against the judge was originally mentioned in the indictment as an attempt to tamper with the judge but was not mentioned in the trial) US v. Fulbright (9th Cir 1997) 105 F3d 443 cert.den 520 US 1236; see alsoAnnotation: Recording of instrument purporting to affect title as slander of title, 39 ALR2d 840 (1953 and suppl.); an anti-abortion organization had filed bogus liens (including a forged signature) against a clinic's lawyer and had served a bogus subpoena on the same person, who thereupon sued the organization for slander of title, defamation, emotional distress, and similar torts, and, in this case, it was held that the organization's insurer could refuse to defend the organization since these were deliberate wrongs and not accidents. Doyle v. Engelke (Wis.App unpub 3/25/97) 209 Wis.2d 600(t), 568 NW2d 38(t) this part upheld on appeal (Wis.Supm 6/24/98) 219 Wis.2d 277, 580 NW2d 245 (the person responsible for the bogus liens was also convicted on multiple counts of forgery and criminal slander of title, and sentenced to 2 yrs of prison and 10 yrs probation; Milwaukee Journal Sentinel, 10/17/96 & Wisc. State Journal 12/21/96). One of the people encouraging the filing of bogus liens, Roy Schwasinger of "We the People", was sentenced to 15 yrs of prison for obstruction of justice and falsifying documents by running a conspiracy to encourage people to file bogus liens against federal judges, various elected officials, lawyers, etc. Dallas Morning News, 27 Sept 94 p.24A, Wall Street Journal, 27 Sept 94 p.C19, Consumer Bankruptcy News, 31 Oct 94 p.2. When a perp filed a nuisance lien on the property of an IRS employee he found that the govt could bring a suit against him, to annul the lien and enjoin any further such behavior, in the federal court in the division where the liened property was located even though this division was very inconvenient to the perp. US v. Scott (ND Ind unpub 2/4/98) 81 AFTR2d 1076 judgmt entered (ND Ind unpub 10/8/98) (permanently enjoining perp from filing any document indicating that the former IRS officer owes him anything and nullifying any such document already filed); a different offense, filing with the county recorder a fake document apparently nullifying a bona fide IRS tax lien, successfully prosecuted under 26 USC sec. 7212 as corruptly interfering with IRS operations. US v. Shriver (11th Cir 1992) 967 F2d 572; {One tactic not yet tried when cranks file or threaten to file bogus liens to intimidate govt employees, which I think might be interesting, is a prosecution for bribery, on the theory that offering the cancellation of a personal debt to influence official duties constitutes a bribe; e.g. US v. Gorman (6th Cir 1986) 897 F2d 1299 cert.den 484 US 815; US v. Vona (WDNY 1994) 842 F.Supp 1534;US v. Arnold (ND IL 1983) 576 F.Supp 304 aff'd (7th Cir 1985) 773 F2d 823; State v. Hingle (La.App 1996) 677 So.2d 603 writ den. (La. 1997) 685 So.2d 141; US v. Hooten (5th cir 1991) 933 F2d 293; Ex parte Montgomery (1943) 244 Alab 91, 12 So.2d 314.}
State v. Carr (1994) 319 Ore 408, 877 P2d 1192; similarly People v. Feinberg (1997) 51 Cal.App.4th 1566, 60 Cal.Rptr.2d 323; similarly State v. Shouse (Fla.App 1965) 177 So.2d 731; (court enjoined perps and anyone "in active concert or participation with them" from filing any more nonconsensual liens against any federal employee, and would punish a violation of this order with a fine or imprisonment or both) Saenger v. Brown (D Ore unpub 5/3/88) 61 AFTR2d 1240, 88 USTC para 9404; ditto US v. Van Dyke (D Ore 1983) 568 F.Supp 820; ditto US v. Criswell (D Ore unpub 8/31/95) 76 AFTR2d 6481; (phone calls to the home and numerous faxes to the office of a govt employee threatening to file nuisance liens prosecuted under 18 USC 111 as assaulting, intimidating or interfering with a govt employee) US v. Holdsworth (D Colo 1998) 990 F.Supp 1274 (but, in Holdsworth case, conviction on another count, namely disorderly conduct in a govt building, overturned because the applicable reg depends on physical presence inside the govt building); (Pilot Connection Society criminally prosecuted for promoting its tax evasion scheme, which included instructing people to file nuisance liens against IRS employees and against employers for withholding taxes or reporting income to the IRS) US v. Clark (5th Cir 1998) 139 F3d 485 cert.den _US_, 119 S.Ct 227; similarly for filing bogus liens and issuing "warrants for citizens arrests" against IRS agents, a judge, the Solicitor General, and other federal officers. US v. Gunwall (10th Cir unpub 8/12/98) 156 F3d 1245(t), 82 AFTR2d 5868 cert.den (Moore v. US) _US_, 119 S.Ct 563; and conviction upheld (for both injuring federal officers and for obstructing tax laws) US v. Boos [& Gunwall] (10th Cir unpub 1/14/99) 166 F3d 1222(t), 83 AFTR2d 584 cert.den _US_, 119 S.Ct 1795; (prosecuted as threatening a govt employee) State v. Stephenson (1998) 89 Wash.App 794, 950 P2d 38; (prosecuted as criminal slander of title) State v. Minniecheske (1984) 118 Wis.2d 357, 347 NW2d 610; (similarly grounds for successful civil suit for slander of title, emotional distress, and other torts, including attorneys fees and punitive damages, in this case amounting to more than $200G; "While we feel that the defendant was misguided (by what or by whom we cannot know) in his interpretation of the law and the role of the courts, he aggravated that misguidance by deliberate, unprincipled actions which no society governed by law and not by men could tolerate. We have had other examples in recent years of person asserting dark and ominous common law rights superseding our constitutions and our statutes. ... Affirmance of the exemplary damages in this case may well alert those inclined to follow the example ... they may well be traveling a rocky road.") Johnson v. Murray (1982) 201 Mont 495, 656 P2d 170; (filing or threatening to file an enormous bogus lien against the employee of a bank that had rejected his funny money used as further evidence of criminal intent in prosecution for fraud and negates a good faith defense) US v. Moser (5th Cir 1997) 123 F3d 813 cert. denied 522 US 1035; (sentences for filing fake 1099 forms and bogus liens against IRS employees are same sentence as for obstruction of justice) US v. Koff (9th Cir 1994) 43 F3d 417 cert.den 514 US 1008; (sending false 1099s to his victims but not to the IRS still punished, with a substantial fine under 18 USC sec. 1001, for making a false statement to the govt on the very reasonable expectation that his victims would forward copies of his forms to the IRS) US v. Meuli (10 Cir 1993) 8 F3d 1481 cert.den 511 US 1020; (same vexing of traffic court judge punished with two months jail for indirect criminal contempt) People v. Smeathers (1998) 297 IL App.3d 711, 698 NE2d 181; (filing bogus liens against IRS employees is evidence of criminal intent in trial for tax evasion) Simmons v. CIR (6/16/97) TC Memo 1997-269; (convicted of perjury and tampering with records for falsely swearing on notarized form which was part of court filing that he had served the subpoena on an intended witness) State v. Walker (Iowa 1998) 574 NW2d 280; (filing in a pending case documents called a "notice and demand" making outrageous accusations against judge, and a "citizen's arrest warrant" supposedly authorizing the arrest of that judge, will be severely punished -- with two years of prison -- for obstruction of justice and interfering with a federal judicial officer, and this even though the judge had recused himself and been replaced in this case before these documents were filed, and in this case the fact that this same perp had also filed a "UCC lien" against the judge was originally mentioned in the indictment as an attempt to tamper with the judge but was not mentioned in the trial) US v. Fulbright (9th Cir 1997) 105 F3d 443 cert.den 520 US 1236; see alsoAnnotation: Recording of instrument purporting to affect title as slander of title, 39 ALR2d 840 (1953 and suppl.); an anti-abortion organization had filed bogus liens (including a forged signature) against a clinic's lawyer and had served a bogus subpoena on the same person, who thereupon sued the organization for slander of title, defamation, emotional distress, and similar torts, and, in this case, it was held that the organization's insurer could refuse to defend the organization since these were deliberate wrongs and not accidents. Doyle v. Engelke (Wis.App unpub 3/25/97) 209 Wis.2d 600(t), 568 NW2d 38(t) this part upheld on appeal (Wis.Supm 6/24/98) 219 Wis.2d 277, 580 NW2d 245 (the person responsible for the bogus liens was also convicted on multiple counts of forgery and criminal slander of title, and sentenced to 2 yrs of prison and 10 yrs probation; Milwaukee Journal Sentinel, 10/17/96 & Wisc. State Journal 12/21/96). One of the people encouraging the filing of bogus liens, Roy Schwasinger of "We the People", was sentenced to 15 yrs of prison for obstruction of justice and falsifying documents by running a conspiracy to encourage people to file bogus liens against federal judges, various elected officials, lawyers, etc. Dallas Morning News, 27 Sept 94 p.24A, Wall Street Journal, 27 Sept 94 p.C19, Consumer Bankruptcy News, 31 Oct 94 p.2. When a perp filed a nuisance lien on the property of an IRS employee he found that the govt could bring a suit against him, to annul the lien and enjoin any further such behavior, in the federal court in the division where the liened property was located even though this division was very inconvenient to the perp. US v. Scott (ND Ind unpub 2/4/98) 81 AFTR2d 1076 judgmt entered (ND Ind unpub 10/8/98) (permanently enjoining perp from filing any document indicating that the former IRS officer owes him anything and nullifying any such document already filed); a different offense, filing with the county recorder a fake document apparently nullifying a bona fide IRS tax lien, successfully prosecuted under 26 USC sec. 7212 as corruptly interfering with IRS operations. US v. Shriver (11th Cir 1992) 967 F2d 572; {One tactic not yet tried when cranks file or threaten to file bogus liens to intimidate govt employees, which I think might be interesting, is a prosecution for bribery, on the theory that offering the cancellation of a personal debt to influence official duties constitutes a bribe; e.g. US v. Gorman (6th Cir 1986) 897 F2d 1299 cert.den 484 US 815; US v. Vona (WDNY 1994) 842 F.Supp 1534;US v. Arnold (ND IL 1983) 576 F.Supp 304 aff'd (7th Cir 1985) 773 F2d 823; State v. Hingle (La.App 1996) 677 So.2d 603 writ den. (La. 1997) 685 So.2d 141; US v. Hooten (5th cir 1991) 933 F2d 293; Ex parte Montgomery (1943) 244 Alab 91, 12 So.2d 314.}
Laws Against Filing Frivolous Liens
Several states (especially in recent years) have adopted laws which impede the filing of frivolous liens, especially against the property of govt employees, ease the nullification of such liens, and/or penalize such filings with substantial fines, hefty damages payable to the victim of the lien, or criminal penalties associated with falsified legal process, obstruction of justice, perjury, fraud, etc. These include (among others): Ariz.Rev. Stat sec. 13-2921 & sec. 33-420; Cal. Penal Code sec. 115.5 & sec. 148.6; Cal. Govt Code sec. 6223 (adopted 7/20/98) & Cal. Code of Civil Proc. sec. 765.010 et seq (adopted 9/22/98); Colo.Rev.Stat. sec. 38-35-109; Fla.Stat sec. 713.31& sec. 843.0855; Haw.Rev.Stat sec. 507D-7; Ida. Code 18-3005 & 45-1705; Ind. Code sec. 32-1-5-9; Kan.Stat.Ann. sec. 58-4301 (adopted 4/17/98); Md Code of 1957 Ann. Art.27 sec. 340; Mich.Comp.L.Ann. sec. 565.108 & sec. 600.2907a [=Mich.Stat.Ann. sec. 26.1278 & sec. 27A.2907a]; Mo.Rev.Stat sec. 428.135; Mont. Code sec. 27-1-1505 & sec. 30-9-432; Nev.Rev.Stat sec. 108.2275; NM Laws 1999 ch.144 (effective July 1999); Ohio Rev. Code sec. 2921.03 & sec. 2921.13 & sec. 2921.52; Okl.Stat.Ann. sec. 12-29 & sec. 12-1141 & sec. 16-75 & sec. 19-267 & sec. 21-1533 (all amended in 1997 or 1998); Ore.Rev.Stat sec. 205.455 & sec. 205.470; SC Code Ann sec. 15-75-60 & sec. 16-17-735 & 30-9-30; SD Code sec. 22-11-31 & sec. 44-2-9; Tex.Civil Prac. Code sec. 11.002 & sec. 11.003; Tex. Penal Code sec. 32.49; Utah Code sec. 38-9-4; WV Code sec. 38-16-301 et seq (April 1999); Wis.Stat sec. 706.13, Wis.Crim.Code sec. 943.60; Wyo.Stat sec. 29-1-311. It also appears that some old laws could be applied to prosecute such filings, such as attempting to bribe, threaten, or otherwise corruptly influence a govt employee in the performance of official duties. In Texas, two municipal judges (Sylvia Garcia & Hector Hernandez) successfully sued a traffic scofflaw (Paul R. McCormick) who responded to traffic tickets by generating imaginary judgments from a make-believe court against both judges and then publicized these "judgments" in ads in local newspapers; the court awarded compensatory and punitive damages of two million dollars (for defamation, mental anguish, etc.) and a permanent injunction against the scofflaw using or participating in make-believe courts; Houston Chronicle (10/27/96, 1/7/98),Nat'l Law Jrnl (12/2/96, 2/3/97);
***
656 P.2d 170 (1982)
Ron JOHNSON and Marilee Johnson, Plaintiffs and Respondents,
v.
Daniel S. MURRAY, Defendant and Appellant.
No. 82-58.
Supreme Court of Montana.
Submitted September 13, 1982.
Decided December 21, 1982.
171*171 George T. Radovich argued, Billings, for defendant and appellant.
McDonough, Cox & Simonton, Richard Simonton argued, Glendive, for plaintiffs and respondents.
SHEEHY, Justice.
Daniel S. Murray appeals from a judgment by default entered against him in the Fifteenth Judicial District Court, Roosevelt County, awarding general damages of $100,000, punitive damages of $100,000, attorney fees of $1,500 and costs in favor of the plaintiffs Ron and Marilee Johnson. We affirm.
Murray raises two issues: (1) that he was deprived of due process in the entry of his default and the granting of the default judgment, and (2) that the damages awarded are excessive.
On September 3, 1980, highway patrolman Duane Bratland, an officer under the supervision of plaintiff Ron Johnson, issued a daytime speeding ticket to Murray in Dawson County. The maximum fine for the speeding charge was $5.
On September 30, 1980, Murray responded to the ticket by filing in the Justice Court a document entitled "Counterclaim". In it he accused Ron Johnson, Marilee Johnson and others of "intimidation of private citizens, compounding a felony, attempting to take money under false pretenses, using unauthorized police powers, operating a radio transmitter without a FCC license, failure to display FCC license, vexing and harassing." He demanded damages from the defendant of $1,050,007, plus court costs and attorney fees at $100 per hour. The justice of the peace dismissed Murray's counterclaim for lack of jurisdiction.
About the time of the dismissal in Justice Court, Murray filed with the clerk and recorder of Roosevelt County, where the Johnsons resided, documents entitled "Notice and Demand," and "Memorandum of Law" which purported to be liens upon the Johnsons' real property. At about the same time, Murray approached local banks with another "Notice and Demand" entitled "Claim of Common Law Writ of Attachment with Memorandum of Law" and attempted to attach or detain the Johnsons' checking and savings accounts along with any of their stocks, bonds and safe deposit boxes.
On December 2, 1980, Johnsons' attorney wrote to Murray, demanding that the purported liens be removed within ten days or 172*172 suit would be filed. Murray responded to this letter with a "Declaration of Notice and Demand" which essentially repeated and demanded compliance with the purported liens.
On May 27, 1981, Johnsons brought this action against Murray, asking for damages for slander of title, defamation, violation of their rights to privacy and their right to own property. The Johnsons requested general damages, punitive damages, costs and attorney fees.
Summons was served on Murray in Yellowstone County on June 3, 1981.
On June 24, 1981, the clerk of the District Court in Roosevelt County received in the mail from Murray an instrument entitled "Answer to Complaint, Special Appearance, Offer to Release Liens." Murray, however, did not submit the necessary $10 filing fee. On the date of receipt, the clerk of the District Court mailed to Murray a bill for the $10 filing fee, meanwhile holding the "Answer" without filing the same. Murray had served his answer upon the Johnsons, but not upon their attorney.
On August 28, 1981, the attorneys for the Johnsons filed with the clerk of the District Court their written request for the entry of Murray's default for his failure to plead or otherwise defend as provided by law.
On September 1, 1981, the attorneys for the Johnsons served written notice of application for default judgment upon Murray, and filed the original with the clerk of the court, that on September 29, 1981, at 11:00 a.m., in the Roosevelt County courthouse, the plaintiffs would present testimony regarding the extent of their damages in the matter, because of Murray's default.
On September 11, 1981, Murray sent the $10 filing fee to the clerk of the District Court, who thereupon filed the "Answer" in the court file.
On September 16, 1981, Richard A. Simonton, as attorney for the Johnsons, filed an affidavit for entry of default to the effect that the defendant had been served on June 3, 1981, that the time for the entry of his answer had expired, and that he had not answered or otherwise moved for extension of time to answer. On September 16, 1981, the default of Murray was entered in the case.
On September 28, 1981, the day before the time scheduled for the hearing on the entry of judgment by default, Murray filed in the District Court an instrument entitled "Notices; Special Appearance; Display of Bad Faith; Request for Voluntary Dismissal; Demand for Jury Trial."
On September 29, 1981, Murray did not appear in person or by counsel for the hearing on the entry of judgment by default. At 20 minutes past the appointed time for the hearing, the District Court proceeded to take testimony from the Johnsons with respect to the amount of damages. Witnesses included Roger Wimmer, an abstractor from Wolf Point, Montana, and the plaintiffs Ron Johnson and Marilee Johnson. In its findings, the District Court found the procedures substantially as we have recited them foregoing; determined that the Johnsons were required to retain counsel for the purpose of protecting their rights and to remove the cloud upon the title of their real property created by the filing of the liens; that such liens did cloud the title to Johnsons' real property; that the Johnsons were not guilty of intimidation, compounding a felony, taking money under false pretenses, using in an unauthorized manner their police powers, nor had they vexed or harassed Murray; that they had no personal contact with him, and were not involved in the issuance of or the enforcement of the citation issued to him on September 3, 1980; that Marilee Johnson in particular did nothing to abuse the defendant and had no connection other than being the subject of his attack by way of liens. The District Court concluded that the placement and retention by Murray of the alleged common law liens against the Johnson property in Roosevelt County slandered the title and caused a cloud upon it, reducing its value and saleability; that the counterclaim was a public document and available for public inspection and it charged the Johnsons with the commission of crimes which were false, 173*173 untrue and damaging statements, and were libelous per se with regard to the reputation, business and standing of the Johnsons in the community; that the liens and writs of attachment by Murray were intentional attempts to harass, embarrass and intimidate the Johnsons without statutory or case authority and violated the Johnsons' right to privacy and to own or possess property and hindered and obstructed the Johnsons' personal rights; that the alleged common law liens were void without recognition in Montana case law or statutory law and should be stricken from the record; that the plaintiffs had incurred attorney fees of $1,500, plus additional costs in prosecuting the action to remove the liens. On this basis, the court entered the damages which we have recited earlier.
Following the service of the notice of entry of judgment against him, Murray moved to set aside the judgment under Rule 60(b), M.R.Civ.P. Johnsons resisted the motion on the ground that he had failed to show facts sufficient to constitute mistake, inadvertence, surprise or excusable neglect, or that he had a good defense to the complaint. The District Court on December 30, 1981, denied the motion to set aside a default judgment and the appeal to this Court ensued.
At all stages of the proceedings in the District Court, and until this appeal, Murray represented himself, acting as his own counsel in filing pleadings and documents, and conducting correspondence with Johnsons' attorney.
WAS THE DEFAULT JUDGMENT AGAINST MURRAY PROPER?
Defaults are controlled by Rule 55, M.R.Civ.P. The pertinent parts of that rule follow:
"Rule 55(a). Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
"Rule 55(b). Judgment. Judgment by default may be entered as follows:
"(2) By the court. In all other cases the party entitled to a judgment by default shall apply to the court therefore; ... If the party against whom judgment by default is sought has appeared in the action, he ... shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If ... it is necessary to take an account or to determine the amount of damages ... the court may conduct such hearings ... as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute in the state of Montana.
"Rule 55(c), Default — setting aside — extension of time by court or stipulation of parties. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). No default of any party shall be entered, and no default judgment shall be entered against any party, except upon application of the opposing party... In any case if a party in default shall serve and file his appearance, motion pleading or proceeding prior to application to the clerk for default, then such defaulting party shall not thereafter be considered in default as to that particular appearance ..."
Under Rule 55, it is clear that the entry of default by the clerk and the entry of judgment by the District Court are two distinctly different acts. Sealey v. Majerus (1967), 149 Mont. 268, 271, 425 P.2d 70. In that case we said:
"Reference to Rule 55(a) clearly points out the error in defendants' contentions one and three. Entry of default by the clerk requires no notice to the party in default. Entry of default IS NOT a judgment. It is only a step in the process of securing judgment by default ..." 149 Mont. at 271, 425 P.2d 70.
In this case, although Murray had forwarded an answer by mail to the clerk of the District Court, which was received by the clerk on June 24, 1981, he did not at the 174*174 same time tender or pay the $10 filing fee required.
Under section 25-1-201, a clerk of the District Court is required to collect from each defendant or respondent on his appearance the sum of $10. The clerk is required to deposit 40 percent of such fees in the general fund of the county, and the remaining portion is remitted to the State. Under section 25-10-403, each party to a civil action is required to pay the fees fixed by law for the performance of any service or duty by any officer of the court, and the officer may not be required to perform such service or duty until the fees fixed are on demand first paid or tendered. Under section 7-4-2515, MCA, county officers, including the clerk of the court must not in any case perform any official services unless the fees prescribed for such services are paid in advance. It was proper in this case, therefore, for the clerk of the District Court to hold the proffered answer of Murray in suspense and not file the same until the officially required fee had been tendered or paid.
Because Murray's answer had not been filed within the time required, after service of the summons and complaint upon him, it was proper for the plaintiffs to request the entry of his default and to make application therefor on August 27, 1981. The application for his default was made prior to the filing of his answer on September 11, 1981. Under Rule 55(c), quoted above, any party in default must serve and file his appearance prior to the application to the clerk for default.
Since application for the entry of default by the clerk was timely made by the Johnsons, through their attorney, the District Court clerk was correct in entering the default of Murray on September 16, 1981, upon receipt of the affidavit that no answer or appearance had been made as required by law by Murray at the time of the application for default.
Johnsons gave written notice to Murray that they would apply to the District Court for judgment by default in plenty of time and certainly in compliance with Rule 55(b)(2), M.R.Civ.P. The time for hearing was set for September 29, 1981. Neither Murray nor anyone representing him appeared at the hearing for the purposes of establishing damages under Rule 55(b)(2). There was no reason for the District Court not to proceed to take evidence for the purpose of determining damages.
On the day before the hearing, September 28, 1981, Murray had filed his "Notice, Special Appearance." There is no provision for the filing of any such pleading in the Rules of Civil Procedure. His purported pleading included a demand for jury trial. When a party is in default, he has no statutory or constitutional right to have a jury assess the damages. Even if the court utilized, in the exercise of its discretion, a jury to assess the damages, it is not because of the protection of the Seventh Amendment, but to inform the conscience of the court. 5 Moore's Federal Practice (2d ed.), § 38.19[3].
Having determined that the proper procedures were followed by counsel for the Johnsons and by the District Court in proceeding and entering default judgment, we now consider whether the District Court ruled properly in refusing to set aside the default judgment upon motion of Murray.
Rule 55(c), M.R.Civ.P., provides that if a judgment by default has been entered, it may be set aside in accordance with Rule 60(b), M.R.Civ.P. Under Rule 60(b), the grounds set out and relied on by Murray were "mistake, inadvertence, surprise, or excusable neglect." Murray contends that his failure to submit the required filing fee was an inadvertent mistake, and that he had not received from the clerk of the court the bill for the fee which she mailed on June 11, 1981. He also contended that since he was appearing pro se that he should be held to much less stringent standards than applied in cases where attorneys are representing the parties.
In denying the motion of Murray to set aside the default judgment, the District Court agreed with the Johnsons that Murray's negligence was not excusable in his 175*175 failure to pay the filing fee until 2 1/2 months later and after the request to enter his default had been submitted; that he had failed to present a prima facie meritorious defense in the answer and that the evidence indicated overwhelmingly that he had no defense to the actions for libel and slander of title. Although Murray was acting as his own attorney, the District Court found that his reckless disregard for the rights and feelings of the plaintiffs and his further attempt at that stage to prolong the litigation were adequate reasons to deny his motion to set aside the judgment.
The District Court relied on Mihelich v. Butte Electric Railway Company (1929), 85 Mont. 604, 622, 281 P. 540, 547, wherein this Court said:
"Mere forgetfulness or a mistake such as indicated is not ground for setting aside a default. (Citing cases.) When one is in default and applies to the court for relief, he must bring his case within some one of the grounds given in [Rule 60(b), M.R. Civ.P.] but even then relief is granted only as a matter of grace and cannot be demanded as a matter of right; in other words, the statute refers the matter to the sound legal discretion of the trial court and its ruling will be interfered with only when a showing of manifest abuse of that discretion is made."
In the circumstances here we find that the District Court did not abuse its discretion in refusing to set aside the default judgment against Murray.
As a further ground for refusing to set aside the default judgment, the District Court noted that Murray, although notified, chose not to appear at the hearing for the entry of judgment by default, there to offer any mitigating evidence he may have had with respect to damages.
IS THE EVIDENCE SUFFICIENT TO SUSTAIN THE VERDICT?
Insufficiency of the evidence to justify the verdict or other decision is ordinarily a ground for a motion for a new trial in the District Court. Section 25-11-102, MCA. Murray made no motion for a new trial in the District Court and perhaps under the posture of the pleadings here he could not have done so. In any event, denial of a motion for a new trial is not an appealable order (Rule 1, M.R.App.Civ.P.). When a case comes before this Court where a motion for a new trial has not been made, this Court will review the evidence to determine whether there is any substantial evidence to justify the verdict. Harrington v. H.D. Lee Mercantile Company (1934), 97 Mont. 40, 55, 33 P.2d 553.
A judgment for damages must be supported by substantial evidence. Bjerum v. Wieber (1967), 149 Mont. 375, 427 P.2d 62. The damages awarded must be reasonable. Section 27-1-302, MCA. When there is strong evidence of the fact of damage, defendant should not escape liability because the amount of damage cannot be proven with precision. Winsness v. M.J. Conoco Distributors (Utah 1979), 593 P.2d 1303. The law does not require that any witness should have expressed an opinion as to the amount of damages that would compensate for humiliation, distress, or embarrassment. The law requires only that the trier of fact exercise calm and reasonable judgment, and the amount of award rests of necessity in the sound discretion of the trier of fact. Bourke v. Butte Electric and Power Company (1905), 33 Mont. 267, 83 P. 470; Freddy L. Johnson and Clara Johnson v. United States of America v. Timothy B. Hay (U.S.D.C. 1981), 510 F. Supp. 1039, 38 St.Rep. 599, 604.
To sustain an award of punitive damages against the objection that the evidence is insufficient, there must be substantial evidence in the record of oppression, fraud or malice, actual or presumed, toward the plaintiff, where the punitive damage award is given for the sake of example and by way of punishing the defendant. Section 27-1-221, MCA.
Here Murray, in response to receiving a ticket for a highway violation, for which the maximum fine was $5, filed in the Justice Court his "counterclaim" against several defendants, including the Johnsons, charging intimidation of private 176*176 citizens, compounding a felony, attempting to take money under false pretenses, using unauthorized police powers, operating a radio transmitter without an FCC license and failure to display an FCC license. This purported counterclaim was for the sum of $1,050,007, plus court costs and attorneys at $100 per hour.
When his counterclaim was dismissed, he then prepared and filed a "notice and demand" purporting to be a common law lien on the personal property, crops, machinery, cars, trucks, household goods, wills, estates, equity liens and trusts of the respondents. He filed a "notice and demand" containing a memorandum of law, in which he gave notice that he intended to secure money damages and exercise his civil and constitutional rights against the Johnsons, and that he would claim a lien upon the real property in Wolf Point, owned by the Johnsons. Here again, the demand was for $1,050,007. He then gave notice to "all banks in the State of Montana" and delivered to several banks, a "notice and demand" purporting to be a claim of common law writ, asserting a lien upon the checking accounts, savings accounts, stocks, bonds, and safe deposit boxes of the Johnsons, attaching the same "instantor" and requiring the banks to hold such items as security not to release the same until his action was settled in a court of competent jurisdiction "under the common law." On December 8, he delivered to the attorneys for the Johnsons a declaration of notice and demand informing the attorneys that he had "liened" the property, bank accounts and hand signatures of the Johnsons as a claim for the violation of his "unalienable rights" which liens he said shall remain in force for 100 years and would only be removed by him when damages had been paid or a settlement to his satisfaction reached. He claimed "your property cannot be sold, your bank accounts cannot be touched, and your hand signatures, marks and brands, trademark, may not be lawfully affixed or used by yourselves, agents, attorneys, commissioners or executors until the release of each lien by myself."
At the hearing for damages, a licensed abstractor testified that the imposition of the purported lien cast a cloud on the title of the real property of the Johnsons which would require at least the expense of removing the same and that the market value of the Johnson property was thereby reduced. Both the Johnsons testified to the humiliation, embarrassment, distress and ridicule each felt as they went to the banks to explain that the lien should have no effect against them and their property, and the necessity they felt to explain to their neighbors and fellow residents in their county that the purported counterclaims against them had no basis in law or in fact.
The District Court was particularly impressed with the attack on Marilee Johnson, the wife of Ron Johnson, who could have had no connection with the issuance of the speeding charge against Murray and whose inclusion as an object of Murray's lien campaign seemed particularly vengeful and improper.
Although opportunity was given to Murray to dismiss and discharge the purported lien claims in exchange for a dismissal of the Johnsons suit against him, he declined that offer.
In his "special appearance" filed the day before the damage hearing, on September 28, 1981, he insisted that Johnson should "negotiate" with him to release the liens, and repeated his offer to release the liens stated in his earlier, late filed answer; that he would be "willing to discuss with Mr. Johnson a release of the liens if he would choose to negotiate privately with the defendant."
Murray claims he did not receive a bill from the clerk of the court for the filing fee, mailed to him on or about June 24, 1981. His denial, however, is refuted by the letter from the clerk of the court mailed to Murray in which the clerk stated that a bill had in fact been mailed to him on that date and that she had no response from him to the bill.
It is clear from the record, therefore, that Murray has, without cause or justification, affected the market value of the Johnsons 177*177 real property, interfered with their use of their private property, falsely charged them with the commission of crimes, and purposely subjected the Johnsons to embarrassment, distress, humiliation and ridicule. He disregarded the bill of the county clerk for the filing of his answer until default had been applied for against him. He ignored a notice that a hearing for damages against him would be held and failed to appear at the hearing. He had shown utter disregard for the rights and privacy of the Johnsons, and utter disdain for the proceedings in the courts. His documents and actions against the Johnsons evince malice, both actual and presumed, and sustain the award of punitive damages against him. We cannot find that the District Court, in awarding general damages, acted unreasonably, and without the exercise of common deliberate judgment, nor that the general damages in the circumstances are unreasonable. There is sufficient evidence in the record to sustain the awards of damages, both general and punitive, and the attorneys fees and costs.
It seems pertinent for us to comment especially on the language of the statute, section 27-1-221, MCA, allowing the award of exemplary damages "for the sake of example." While we feel that the defendant was misguided (by what or by whom we cannot know) in his interpretation of the law and the role of the courts, he aggravated that misguidance by deliberate, unprincipled actions which no society governed by law and not by men could tolerate. We have had other examples in recent years of persons asserting dark and ominous common law rights superseding our constitutions and our statutes. The attorney general of this state has been called upon to issue an opinion that nonstatutory "common law liens" filed against public officers on the mere whims of the claimed lienors are invalid, and to instruct county clerks and recorders not to accept the same for filing. There is a need for example against this kind of lien claims.
Affirmance of the exemplary damages in this case may well alert those inclined to follow the example of Daniel Murray — they may well be traveling a rocky road.
Affirmed.
HASWELL, C.J., and DALY and HARRISON, JJ., concur.
MORRISON, Justice, dissenting:
I respectfully dissent.
I concur in that portion of the majority opinion which affirms the cause of action and the award of punitive damages. There is substantial credible evidence from which the trial court could have found malice and upon which the trial court could have made an award of $100,000 in punitive damages by way of example.
I dissent from the majority in affirming the award of $100,000 in compensatory damage. In my opinion the record does not show actual damages which could conceivably support the compensatory award made by the trial court.
The record of the default proceedings held in the trial court shows the following testimony bearing upon compensatory damages.
ROGER WIMMER, ABSTRACTOR
"Q. Now do you have an opinion, in your capacity as an abstractor, as to whether or not such a lien would be a cloud on the title to the Johnson property?
"A. Yes I do.
"Q. And what is your opinion?
"A. In my opinion it would definitely put a cloud on the title.
"...
"THE COURT: And to a prospective purchaser that would appear to be a big question mark, wouldn't it?
"A. Yes."
RON JOHNSON, PLAINTIFF
"Q. Now these liens that have been filed by Mr. Murray, how has that affected you?
"A. I was very angry to begin with, and I am still a little put out about it, and I think a lot of people knew about it long before I did, that these liens had been 178*178 filed, and there has been a lot of ribbing about it, and people still kind of look at you with such a jaundice eye and `Well if you are so innocent, what are you doing in Court?' or `Why did this guy file this lien on you?', and I think the biggest problem is the drawn out explanation that has to take place in order to hopefully satisfy your friends that you really haven't done anything wrong."
MARILEE JOHNSON, PLAINTIFF
"Q. Mrs. Johnson, how has this matter affected you?
"A. I think it has been very embarrassing.
"Q. In what ways?
"A. Well, sometimes my husband talks about finding another job and — or maybe transferring and if we were to move, we would have problems trying to sell our property for one thing and the idea of somebody controlling your bank account is very upsetting, and it would be very hard for us to manage things that way; I think the whole thing is terrible and I have been very annoyed when I heard that a lien was put on our property of that kind, because I didn't know that anyone could do that."
This is the extent of the testimony bearing upon damages to the plaintiffs. The majority opinion states:
"At the hearing for damages, a licensed abstractor testified that the imposition of the purported lien cast a cloud on the title of the real property of the Johnsons which would require at least the expense of removing the same and that the market value of the Johnson property was thereby reduced."
I find no support in the record to show a diminution in the market value of the Johnson property. Furthermore, there is no evidence that the Johnson property was ever offered for sale during the time in question. With the exception of testimony regarding plaintiff's embarrassment and anger the only evidence showing loss to the plaintiffs is the time that plaintiffs personally spent in attempting to secure release of the liens.
The conduct of the defendant is inflammatory. In my opinion this conduct led to an award based upon passion and prejudice. The following statements by plaintiffs' counsel and by the court are taken from the final remarks which appear in the transcript.
MR. SIMONTON:
"... I believe we have shown that the title of their property have been slandered and I think it would be just to award one million fifty thousand seven dollars which we have requested, but I don't know how realistic that is; I have nothing at this time to show what his worth is because he didn't appear, but when you consider that this was certainly done maliciously after we offered to forget the whole thing in December and the response was that things had to be done on his terms or not at all, and it is obvious that this was done maliciously, it has caused the Plaintiffs a great deal of concern, anguish, time and embarrassment and to punish this defendant and others like him, I would like to see a judgment of at least fifty thousand dollars, Your Honor.
"THE COURT: Well I think it might be unrealistic; I think the conduct and all its particulars, that he slandered the title and liabled and accused people of crimes that is liable per se. There is no question in my mind that he should be punished in the way of exemplary damages. I think it might be more realistic to find damages in the amount of $100,000.00 and punitive damages in the amount of $100,000.00; ..."
The court further awarded $1500 in attorney's fees.
A fair summary of the above quoted remarks of counsel for plaintiff show that he sought a total award of $50,000 primarily in the form of punitive damages. The court rejected request of plaintiff's counsel and awarded $200,000. The $100,000.00 awarded for punitive damages can be supported as within the trial court's discretion based upon the extremely vexatious nature of the defendant's conduct. However, I can find 179*179 no evidence in the record to support an award of $100,000.00 in compensatory damage.
Rather than remand this case for a trial on compensatory damages I would enter a remittitur allowing plaintiff $5,000 in compensatory damages for mental and emotional distress and affirm the balance.
WEBER, J., concurs in the foregoing dissent.
SHEA, Justice, dissenting:
I dissent.
First, this Court should set aside the default judgment entered in this case. It has always been the policy of this Court to favor trial on the merits, and this case is no exception. Second, I agree with Justice Morrison's dissent to the extent that he shows there was no basis in the record for the award of compensatory damages in the amount of $100,000. However, assuming that the default judgment would not be set aside, I would order a new trial on the question of compensatory damages. It is not a good practice for this Court to determine for ourselves what the damages should be. Third, I would set aside the judgment awarding $100,000 punitive damages, and again order that the trial be again held to determine the amount.
The record quoted by Justice Morrison reveals several factors bearing on damages. First counsel for plaintiffs at no time indicated what he considered an appropriate amount to be for compensatory damages. It is also clear that he believed the entire judgment should be "at least fifty thousand dollars" which of course included both compensatory damages and punitive damages. I view an award of damages as based only on passion and prejudice of the trier of fact when the basis of the total judgment of $200,000 ($100,000 compensatory damages and $200,000 punitive damages is that the court believed the defendant should be punished. Although the acts of defendant cannot in any way be condoned, it is clear that the compensatory damages awarded to plaintiffs were awarded because of the outrageous acts of the defendant rather than the actual damages sustained by the plaintiffs.
In addition, the trial court awarded $1,500 attorney fees. Plaintiffs' counsel said he had at least 20 hours on the case and wanted compensation at the rate of $75 per hour. The court, with no further ado, set the attorneys fees at $1,500. Although defendant has not appealed from the attorneys fees award as a separate ground, nonetheless I find no basis in the law to award an attorney fee in this kind of action.
What has happened to the defendant here does not speak too highly of the fair judicial treatment to which he is entitled, regardless of the outrageous acts he may have perpetrated on the plaintiffs. Justice would best be served by setting aside the default judgment and letting the case proceed on its merits — to a jury if that is the wish of either of the parties.
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Texas House Bill 1185 (April 3 1997)
Capitol Research Services of Texas > Reports
Fraudulent Liens
§ § 32.46, Penal Code
§ 1997 Amendment: H.B. 1185
§ Report: 39 pages
§ Fee: $195
Abstract
The Texas Legislature passed House Bill 1185 (H.B. 1185) during the 75th Legislature in 1997 as a part of a bill dealing with the fraudulent liens that were being filed at that time by members of the Republic of Texas.
The House Research Organization summarized the bill as follows:
The House Research Organization summarized the bill as follows:
CSHB 1185 would establish criminal penalties for filing and holding fraudulent court documents and impersonating public servants. The bill also would require court clerks to notify persons if they suspected a fraudulent document has been filed; establish a process for judicial review and removal of potentially fraudulent court documents; and create a specific civil cause of action for making or using fraudulent court records, liens or claims against property.
Exhibits
1997
1. Tex. H.B. 1185, 75th Leg., R.S., Master Bill History Report (1997)
2. Tex. H.B. 1185, As Introduced, 75th Leg., R.S. (1997)
3. Tex. H.B. 1185, House Committee Report, 75th Leg., R.S. (1997)
4. Tex. H.B. 1185, Senate Committee Report, 75th Leg., R.S. (1997)
5. Tex. H.B. 1185, Conference Committee Report, 75th Leg., R.S.(1997)
6. Tex. S.B. 661, 75th Leg., R.S., Master Bill History Report (1997)
7. Tex. S.B. 661, As Introduced, 75th Leg., R.S. (1997)
8. CAPITOL RESEARCH SERVICES, Hearings on H.B. 1185 Before the Senate Committee on Jurisprudence, 75th Leg. R.S., Tape 2 (March 24, 1997)
9. CAPITOL RESEARCH SERVICES, Debate on H.B. 1185 On the Floor of the Senate (Second and Third Readings), 75th Leg. R.S., Tape 1 (April 3, 1997)
1. Tex. H.B. 1185, 75th Leg., R.S., Master Bill History Report (1997)
2. Tex. H.B. 1185, As Introduced, 75th Leg., R.S. (1997)
3. Tex. H.B. 1185, House Committee Report, 75th Leg., R.S. (1997)
4. Tex. H.B. 1185, Senate Committee Report, 75th Leg., R.S. (1997)
5. Tex. H.B. 1185, Conference Committee Report, 75th Leg., R.S.(1997)
6. Tex. S.B. 661, 75th Leg., R.S., Master Bill History Report (1997)
7. Tex. S.B. 661, As Introduced, 75th Leg., R.S. (1997)
8. CAPITOL RESEARCH SERVICES, Hearings on H.B. 1185 Before the Senate Committee on Jurisprudence, 75th Leg. R.S., Tape 2 (March 24, 1997)
9. CAPITOL RESEARCH SERVICES, Debate on H.B. 1185 On the Floor of the Senate (Second and Third Readings), 75th Leg. R.S., Tape 1 (April 3, 1997)
AN ACT
Relating to the fraudulent exercise of certain governmental functions and the fraudulent creation or use of certain pleadings, governmental documents, and records; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 32.21(e) and (f), Penal Code, are amended to read as follows:
(e) An offense under this section is a felony of the third degree if the writing is or purports to be:
(1) part of an issue of money, securities, postage or revenue stamps;
(2) a government record listed in Section 37.01(2)(C) [37.01(1)(C]; or
(3) other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person.
(f) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more writings of the same type and if each writing is a government record listed in Section 37.01(2)(C) [37.01(1)(C)].
SECTION 2. Section 32.46, Penal Code, is amended to read as follows:
Sec. 32.46. SECURING EXECUTION OF DOCUMENT BY DECEPTION.
(a) A person commits an offense if, with intent to defraud or harm any person, he, by deception:
(1) [,] causes another to sign or execute any document affecting property or service or the pecuniary interest of any person, or
(2) causes or induces a public servant to file or record any purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of:
(A) a purported court that is not expressly created or established under the constitution or the laws of this state or of the United States;
(B) a purported judicial entity that is not expressly created or established under the constitution or laws of this state or of the United States; or
(C) a purported judicial officer of a purported court or purported judicial entity described by Paragraph (A) or (B).
(b) An offense under Subsection (a)(1) [this section] is a:
(1) Class C misdemeanor if the value of the property, service, or pecuniary interest is less than $20;
(2) Class B misdemeanor if the value of the property, service, or pecuniary interest is $20 or more but less than $500;
(3) Class A misdemeanor if the value of the property, service, or pecuniary interest is $500 or more but less than $1,500;
(4) state jail felony if the value of the property, service, or pecuniary interest is $1,500 or more but less than $20,000;
(5) felony of the third degree if the value of the property, service, or pecuniary interest is $20,000 or more but less than $100,000;
(6) felony of the second degree if the value of the property, service, or pecuniary interest is $100,000 or more but less than $200,000; or
(7) felony of the first degree if the value of the property, service, or pecuniary interest is $200,000 or more.
(c) An offense under Subsection (a)(2) is a state jail felony.
(d) In this section, "deception" has the meaning assigned by Section 31.01.
SECTION 3. Subchapter D, Chapter 32, Penal Code, is amended by adding Section 32.48 to read as follows:
Sec. 32.48. SIMULATING LEGAL PROCESS. (a) A person commits an offense if the person recklessly causes to be delivered to another any document that simulates a summons, complaint, judgment, or other court process with the intent to:
(1) induce payment of a claim from another person; or
(2) cause another to:
(A) submit to the putative authority of the document; or
(B) take any action or refrain from taking any action in response to the document, in compliance with the document, or on the basis of the document.
(b) Proof that the document was mailed to any person with the intent that it be forwarded to the intended recipient is a sufficient showing that the document was delivered.
(c) It is not a defense to prosecution under this section that the simulating document:
(1) states that it is not legal process; or
(2) purports to have been issued or authorized by a person or entity who did not have lawful authority to issue or authorize the document.
(d) If it is shown on the trial of an offense under this section that the simulating document was filed with, presented to, or delivered to a clerk of a court or an employee of a clerk of a court created or established under the constitution or laws of this state, there is a rebuttable presumption that the document was delivered with the intent described by Subsection (a).
(e) Except as provided by Subsection (f), an offense under this section is a Class A misdemeanor.
(f) If it is shown on the trial of an offense under this section that the defendant has previously been convicted of a violation of this section, the offense is a state jail felony.
SECTION 4. Subchapter D, Chapter 32, Penal Code, is amended by adding Section 32.49 to read as follows:
Sec. 32.49. REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM.
(a) a person commits an offense if, with intent to defraud or harm another, the person:
(1) owns, holds, or is the beneficiary of a purported lien or claim asserted against real or personal property or an interest in real or personal property that is fraudulent, as described by Section 51.901(c), Government Code; and
(2) not later than the 21st day after the date of receipt of actual or written notice sent by either certified or registered mail, return receipt requested, to the person's last known address, or by telephonic document transfer to the recipient's current telecopier number, requesting the execution of a release of the fraudulent lien or claim, refuses to execute the release on the request of:
(A) the obligor or debtor; or
(B) any person who own any interest in the real or personal property described in the document or instrument that is the basis for the lien or claim.
(b) A person who fails to execute a release of the purported lien or claim within the period prescribed by Subsection (a)(2) is presumed to have had the intent to harm or defraud another.
(c) An offense under this section is a Class A misdemeanor.
SECTION 5. Section 37.01, Penal Code, is amended to read as follows:
Sec. 37.01. DEFINITIONS. In this chapter:
(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(E) an Indian tribe recognized by the United States; or
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.
(2) "Government record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; or
(C) a license, certificate, permit, seal, title, letter of patent, or similar document issued by government.
(3) [(2)] "Statement" means any representation of fact.
SECTION 6. Section 37.10, Penal Code, is amended by amending Subsection (d) and adding Subsection (h) to read as follows:
(d) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the second degree.
(h) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.13, the actor may be prosecuted under any of those sections.
SECTION 7. Section 37.11, Penal Code, is amended to read as follows:
Sec. 37.11. IMPERSONATING PUBLIC SERVANT.
(a) A person commits an offense if he:
(1) impersonates a public servant with intent to induce another to submit to his pretended official authority or to rely on his pretended official acts; or
(2) knowingly purports to exercise any function of a public servant or of a public office, including that of a judge and court, and the position or office through which he purports to exercise a function of a public servant or public office has no lawful existence under the constitution or laws of this state or of the United States.
(b) An offense under this section is [a Class A misdemeanor unless the person impersonated a peace officer, in which event it is] a felony of the third degree.
SECTION 8. Chapter 37, Penal Code, is amended by adding Section 37.13 to read as follows:
Sec. 37.13. RECORD OF A FRAUDULENT COURT.
(a) A person commits an offense if the person makes, presents, or uses any document or other record with:
(1) knowledge that the document or other record is not a record of a court created under or established by the constitution or laws of this state or of the United States; and
(2) the intent that the document or other record be given the same legal effect as a record of a court created under or established by the constitution or laws of this states or of the United States.
(b) An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under this section on two or more occasions.
(c) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.10, the actor may be prosecuted under any of those sections.
SECTION 9. Section 71.02(a), Penal Code, is amended to read as follows:
(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:
(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault publishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any unlawful employment, authorization, or inducing of a child younger than 17 years of age in an obscene sexual performance;
(8) any felony offense under Chapter 32, Penal Code;
(9) any offense under Chapter 36, Penal Code; [or]
(10) any offense under Chapter 34, Penal Code; or
(11) any offense under Section 37.11(a), Penal Code.
SECTION 10. Chapter 37, Penal Code, is amended by adding Section 37.101 to read as follows:
Sec. 37.101. FRAUDULENT FILING OF FINANCING STATEMENT.
(a) A person commits an offense if the person knowingly presents for filing or causes to be presented for filing a financing statement that the person knows:
(1) is forged;
(2) contains a material false statement; or
(3) is groundless.
(b) An offense under Subsection (a)(1) is a felony of the third degree, unless it is shown on the trial of the offense that the person had previously been convicted under this section on two or more occasions, in which event the offense is a felony of the second degree. An offense under Subsection (a)(2) or (a)(3) is a Class A misdemeanor, unless the person commits the offense with the intent to defraud or harm another, in which event the offense is a state jail felony.
SECTION 11. Chapter 1, Code of Criminal Procedure, is amended by adding Article 1.052 to read as follows:
Art 1.052. SIGNED PLEADINGS OF DEFENDANT.
(a) A pleading, motion, and other paper filed for or on behalf of a defendant represented by an attorney must be signed by at least one attorney of record in the attorney's name and state the attorney's address. A defendant who is not represented by an attorney must sign any pleading, motion, or other paper filed for or on the defendant's behalf and state the defendant's address.
(b) The signature of an attorney or a defendant constitutes a certificate by the attorney or defendant that the person has read the pleading, motion, or other paper and that to the best of the person's knowledge, information, and belief formed after reasonable inquiry that the instrument is not groundless and brought in bad faith or groundless and brought for harassment, unnecessary delay, or other improper purpose.
(c) If a pleading, motion, or other paper is not signed, the court shall strike it unless it is signed promptly after the omission is called to the attention of the attorney or defendant.
(d) An attorney or defendant who files a fictitious pleading in a cause for an improper purpose described by Subsection (b) or who makes a statement in a pleading that the attorney or defendant knows to be groundless and false to obtain a delay of the trial of the cause or for the purpose of harassment shall be held guilty of contempt.
(e) If a pleading, motion, or other paper is signed in violation of this article, the court, on motion or on its own initiative, after notice and hearing, shall impose an appropriate sanction, which may include an order to pay to the other party or parties to the prosecution or to the general fund of the county in which the pleading, motion, or other paper was filed the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney's fees.
(f) A court shall presume that a pleading, motion, or other paper is filed in good faith. Sanctions under this article may not be imposed except for good cause stated in the sanction order.
(g) A plea of "not guilty" or "no contest" or "nolo contendere" does not constitute a violation of this article. An allegation that an event took place or occurred on or about a particular date does not constitute a violation of this article.
(h) In this article, "groundless" means without basis in law or fact and not warranted by a good faith argument for the extension, modification, or reversal of existing law.
SECTION 12. Chapter 13, Code of Criminal Procedure, is amended by adding Article 13.26 to read as follows:
Art. 13.26. SIMULATING LEGAL PROCESS. An offense under Section 32.46, 32.48, 32.49, or 37.13, Penal Code, may be prosecuted either in the county from which any material document was sent or in the county in which it was delivered.
SECTION 13. Section 51.605(c), Government Code, is amended to read as follows:
(c) A clerk must successfully complete 20 hours of continuing education courses in the performance of the duties of office at least one time in each 24-month period. The 20 hours of required continuing education courses must include at least one hour of continuing education regarding fraudulent court documents and fraudulent document filings.
SECTION 14. Chapter 51, Government Code, is amended by adding Subchapter J to read as follows:
SUBCHAPTER J. CERTAIN FRAUDULENT RECORDS OR DOCUMENTS
Sec. 51.901. FRAUDULENT DOCUMENT OR INSTRUMENT.
(a) If a clerk or the supreme court, clerk of the court of criminal appels, clerk of a court of appeals, district clerk, county clerk, district and county clerk, or municipal clerk has a reasonable basis to believe in good faith that a document or instrument previously filed or recorded or offered or submitted for filing or for filing and recording is fraudulent, the clerk shall:
(1) if the document is a purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of a purported court, provide written notice of the filing, recording, or submission for filing or for filing and recording to the stated or last known address of the person against whom the purported judgment, act, order, directive, or process is rendered; or
(2) if the document or instrument purports to create a lien or assert a claim on real or personal property or an interest in real or personal property, provide written notice of the filing, recording, or submission for filing or for filing and recording to the stated or last known address of the person named in the document or instrument as the obligor or debtor and to any person named as owning any interest in the real or personal property described in the document or instrument.
(b) A clerk shall provide written notice under Subsection (a):
(1) not later than the second business day after the date that the document or instrument is offered or submitted for filing or for filing and recording; or
(2) if the document or instrument has been previously filed or recorded, not later than the second business day after the date that the clerk becomes aware that the document or instrument may be fraudulent.
(c) For purposes of this section, a document or instrument is presumed to be fraudulent if:
(1) the document is a purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of:
(A) a purported court or a purported judicial entity not expressly created or established under the constitution or the laws of this state or of the United States; or
(B) a purported judicial officer of a purported court or purported judicial entity described by Paragraph (A); or
(2) the document or instrument purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and;
(A) is not a document or instrument provided for by the constitution or laws of this state or of the United States;
(B) is not created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or prsonal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person; or
(C) is not an equitable, constructive, or other lien imposed by a court with jurisdiction created or established under the constitution or laws of this state or of the United States.
Sec. 51.902. ACTION ON FRAUDULENT JUDGMENT LIEN.
(a) A person against whom a purported judgment was rendered who has reason to believe that a document previously filed or recorded or submitted for filing or for filing and recording is fraudulent may complete and file with the district clerk a motion, verified by affidavit by a completed forrm for ordinary certificate of acknowledgment, of the same type described by Section 121.007, Civil Practice and Remedies Code, that contains, at a minimum, the information in the following suggested form:
MISC. DOCKET NO.______
In Re: A Purported Judgment § In the ____ Judicial District
Lien Against (Name of §
Purported Debtor) § In and For __________________
§
§ County, Texas
MOTION FOR JUDICIAL REVIEW OF A DOCUMENTATION PURPORTING TO CREATE A JUDGMENT LIEN
Now Comes (name) and files this motion requesting a judicial determination of the status of a court, judicial entity, or judicial officer purporting to have taken an action that is the basis of a judgment lien filed in the office of said clerk, and in support of the motion would show the court as follows:
I.
(Name), movant herein, is the person against whom the purported judgment was rendered.
II.
On (date), in the exercise of the county clerk's official duties as County Clerk of (county name) County, Texas, the county clerk received and filed or filed and recorded the documentation attached hereto and containing (number) pages. Said documentation purports to have been rendered on the basis of a judgment, act, order, directive, or process of a court, judicial entity, or judicial officer called therein "(name of purported court, judicial entity, or judicial officer)" against one (name of purported debtor).
III.
Movant alleges that the purported court, judicial entity, or judicial officer referred to in the attached documentation is one described in Section 51.901(c)(1), Government Code, as not legally created or established under the constitution or laws of this state or of the United States, and that the documentation should therefore not be accorded lien status.
IV.
Movant further attests that the assertions contained herein are true and correct.
PRAYER
Movant requests the court to review the attached documentation and enter an order determining whether it should be accorded lien status, together with such other orders as the court deems appropriate.
Respectfully submitted,
_____________________________
(Signature and typed name and
address)
(b) The completed form for ordinary certificate of Acknowledgment, of the same type described by Section 121.007, Civil Practice and Remedies Code, must be as follows:
AFFIDAVIT
THE STATE OF TEXAS §
COUNTY OF ____________ §
BEFORE ME, the undersigned authority, personally appeared _______________, who, being by me duly sworn, deposed as follows:
"My name is __________________. I am over 21 years of age, of sound mind, with personal knowledge of the following facts, and fully competent to testify.
I further attest that the assertions contained in the accompanying motion are true and correct."
Further affiant sayeth not.
____________________________
SUBSCRIBED and SWORN TO before me, this _____ day of _____________, ____.
______________________________
NOTARY PUBLIC, State of Texas
Notary's printed name:
________________________
My commission expires:
________________________
(c) A motion filed under this section may be ruled on by a district judge having jurisdiction over real property matters in the county where the subject documentation was filed. The court's finding may be made solely on a review of the documentation attached to the movant's motion and without hearing any testimonial evidence. The court's review may be made ex parte without delay or notice of any kind. The court's ruling on the motion, in the nature of a finding of fact and a conclusion of law, is unappealable if it is substantially similar to the form suggested in Subsection (g).
(d) The district clerk may not collect a filing fee for filing a motion under this section.
(e) After reviewing the documentation attached to a motion under this section, the district judge shall enter an appropriate finding of fact and conclusion of law, which must be filed and indexed in the same class of records in which the subject documentation or instrument was originally filed.
(f) The county clerk may not collect a filing fee for filing a district judge's finding of fact and conclusion of law under this section.
(g) A suggested form order appropriate to comply with this section is as follows:
MISC. DOCKET NO.______
In Re: A Purported Judgment § In the ____ Judicial District
Lien Against (Name of §
Purported Debtor) § In and For __________________
§
§ County, Texas
JUDICIAL FINDING OF FACT AND CONCLUSION OF LAW
REGARDING A DOCUMENTATION PURPORTING TO CREATE A JUDGMENT LIEN
On the (number) day of (month), (year), in the above entitled and numbered cause, this court reviewed a motion verified by affidavit of (name) and the documentation attached thereto. No testimony was taken from any party, nor was there any notice of the court's review, the court having made the determination that a decision could be made solely on review of the documentation under the authority vested in the court under Subchapter J, Chapter 51, Government Code.
The court finds as follows (only an item checked and initialed is a valid court ruling):
_____ The documentation attached to the motion herein refers to a legally constituted court, judicial entity, or judicial officer created by or established under the constitution or laws of this state or of the United States. This judicial finding and conclusion of law does not constitute a finding as to any underlying claims of the parties.
_____ The documentation attached to the motion herein DOES NOT refer to a legally constituted court, judicial entity, or judicial officer created by or established under the constitution or laws of this state or of the United States. There is no valid judgment lien created by the documentation.
This court makes no finding as to any underlying claims of the parties involved and expressly limits its finding of fact and conclusion of law to a ministerial act. The county clerk shall file this finding of fact and conclusion of law in the same class of records as the subject documentation was originally filed, and the court directs the county clerk to index it using the same names that were used in indexing the subject document.
SIGNED ON THIS THE ____ DAY OF _______________, _____.
_______________________________________
DISTRICT JUDGE
________ JUDICIAL DISTRICT
____________ COUNTY, TEXAS
Sec. 51.903. ACTION ON FRAUDULENT LIEN ON PROPERTY.
(a) A person who is the purported debtor or obligor or who owns real or personal property or an interest in real or prsonal property and who has reason to believe that the document purporting to create a lien or a claim against the real or personal property of an interest in the real or personal property previously filed or submitted for filing and recording is fraudulent may complete and file with the district clerk a motion, verified by affidavit by a completed form for ordinary certificate of acknowledgment, of the same type described by Section 121.007, Civil Practice and Remedies Code, that contains, at a minimum, the information int he following suggested form:
MISC. DOCKET NO.______
In Re: A Purported Judgment § In the ____ Judicial District
Lien Against (Name of §
Purported Debtor) § In and For __________________
§
§ County, Texas
MOTION FOR JUDICIAL REVIEW OF A DOCUMENTATION OR INSTRUMENT PURPORTING TO CREATE A LIEN OR CLAIM
Now Comes (name) and files this motion requesting a judicial determination of the status documentation or an instrument purporting to create an interest in real or personal property or a lien or claim on real or personal property or an interest in real or personal property filed in the office of the Clerk of (county name) County, Texas, and in support of the motion would show the court as follows:
I.
(Name), movant herein, is the purported obligor or debtor or person who owns the real or personal property or the interest in real or personal property described in the documentation or instrument.
II.
On (date), in the exercise of the county clerk's official duties as County Clerk of (county name) County, Texas, the county clerk received and filed or filed and recorded the documentation or instrument attached hereto and containing (number) pages. Said documentation or instrument purports to have created a lien on real or personal property or an interest in real or personal property against one (name of purported debtor).
III.
Movant alleges that the documentation or instrument attached hereto is fraudulent, as defined by Section 51.901(c)(2), Government Code, and that the documentation or instrument should therefore not be accorded lien status.
IV.
Movant attests that the assertions herein are true and correct.
PRAYER
Movant requests the court to review the attached documentation or instrument and enter an order determining whether it should be accorded lien status, together with such other orders as the court deems appropriate.
Respectfully submitted,
_____________________________
(Signature and typed name and
address)
(b) The completed form for ordinary certificate of acknowledgment, of the same type described by Section 121.007, Civil practice and Remedies Code, must be as follows:
AFFIDAVIT
THE STATE OF TEXAS §
COUNTY OF ____________ §
BEFORE ME, the undersigned authority, personally appeared _______________, who, being by me duly sworn, deposed as follows:
"My name is __________________. I am over 21 years of age, of sound mind, with personal knowledge of the following facts, and fully competent to testify.
I further attest that the assertions contained in the accompanying motion are true and correct."
Further affiant sayeth not.
____________________________
SUBSCRIBED and SWORN TO before me, this _____ day of _____________, ____.
______________________________
NOTARY PUBLIC, State of Texas
Notary's printed name:
________________________
My commission expires:
________________________
(c) A motion filed under this section may be ruled on by a district judge having jurisdiction over real property matters in the county where the subject documentation was filed. The court's finding may be made solely on a review of the documentation attached to the movant's motion and without hearing any testimonial evidence. The court's review may be made ex parte without delay or notice of any kind. An appellate court shall expedite review of a court's finding under this section.
(d) The district clerk may not collect a filing fee for filing a motion under this section.
(e) After reviewing the documentation attached to a motion under this section, the district judge shall enter an appropriate finding of fact and conclusion of law, which must be filed and indexed in the same class of records in which the subject documentation or instrument was originally filed. A copy of the finding of fact and conclusion of law shall be sent, by first class mail, to the movant and to the prson who filed the fraudulent lien or claim at the last known address of each person within seven days of the date that the finding of fact and conclusion of law is issued by the judge.
(f) The county clerk may not collect a filing fee for filing a district judge's finding of fact and conclusion of law under this section.
(g) A suggested form order appropriate to comply with this section is as follows:
MISC. DOCKET NO.______
In Re: A Purported Judgment § In the ____ Judicial District
Lien Against (Name of §
Purported Debtor) § In and For __________________
§
§ County, Texas
JUDICIAL FINDING OF FACT AND CONCLUSION OF LAW REGARDING A DOCUMENTATION OR INSTRUMENT PURPORTING TO CREATE A LIEN OR CLAIM
On the (number) day of (month), (year), in the above entitled and numbered cause, this court reviewed a motion verified by affidavit of (name) and the documentation attached thereto. No testimony was taken from any party, nor was there any notice of the court's review, the court having made the determination that a decision could be made solely on review of the documentation under the authority vested in the court under Subchapter J, Chapter 51, Government Code.
The court finds as follows (only an item checked and initialed is a valid court ruling):
_____ The documentation or instrument attached to the motion herein IS asserted against real or personal property or an interest in real or personal property and:
(1) IS provided for by specific state or federal statutes or constitutional provisions, to which ruling movant objects;
(2) IS created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by consent of an agent, fiduciary, or other representative of that person, to which ruling movant objects; or
(3) IS an equitable, constructive, or other lien imposed by a court of competent jurisdiction created or established under the constitution or laws of this state or of the United States, to which ruling movant objects.
_____ The documentation or instrument attached to the motion herein:
(1) IS NOT provided for by specific state or federal statutes or constitutional provisions;
(2) IS NOT created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or prsonal property, if required under the law of this state or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person;
(3) IS NOT an equitable, constructive, or other lien imposed by a court of competent jurisdiction created by or established under the constitution or laws of this state or the United States; or
(4) IS NOT asserted against real or personal property or an interest in real or personal property. There is no valid lien or claim created by this documentation or instrument.
This court makes no finding as to any underlying claims of the parties involved and expressly limits its finding of fact and conclusion of law to the review of a ministerial act. The county clerk shall file this finding of fact and conclusion of law in the same class of records as the subject documentation was originally filed, and the court directs the county clerk to index it using the same names that were used in indexing the subject document.
SIGNED ON THIS THE ____ DAY OF _______________, _____.
_______________________________________
DISTRICT JUDGE
________ JUDICIAL DISTRICT
____________ COUNTY, TEXAS
Sec. 51.904. WARNING SIGN. A clerk described by Section 51.901(a) shall post a sign, in letters at least one inch in height, that is clearly visible to the general public in or near the clerk's office stating that it is a crime to intentionally or knowingly file a fraudulent court record or a fraudulent instrument with the clerk.
Sec. 51.905. DOCUMENTS FILED WITH SECRETARY OF STATE.
(a) If the lien or other claim that is the subject of a judicial finding of fact and conclusion of law authorized by this subchapter is one that is authorized by law to be filed with the secretary of state, any person may file a certified copy of the judicial finding of fact and conclusion of law in the records of the secretary of state, who shall file the certified copy of the finding in the same class of records as the subject document or instrument was originally filed and index it using the same names that were used in indexing the subject document or instrument.
(b) The secretary of state may charge a filing fee of $15 for filing a certified copy of a judicial finding of fact and conclusion of law under this section.
SECTION 15. Section 12.013, Property Code, is amended to read as follows:
Sec. 12.013. JUDGMENT. A judgment or an abstract of a judgment of a court [in this state] may be recorded if:
(1) the judgment is of a court:
(A) expressly created or established under the constitution or laws of this state or of the United States;
(B) that is a court of a foreign country and that is recognized by an Act of congress or a treaty or other international convention to which the United States is a party; or
(C) of any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the Constitution of the United States; and
(2) the judgment is attested under the signature and seal of the clerk of the court that rendered the judgment.
SECTION 16. Subtitle A, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 11 to read as follows:
CHAPTER 11. LIABILITY RELATED TO A FRAUDULENT COURT RECORD OR A FRAUDULENT LIEN OR CLAIM FILED AGAINST REAL OR PERSONAL PROPERTY
Sec. 11.001. DEFINITIONS. In this chapter;
(1) "Court record" has the meaning assigned by Section 37.01, Penal Code.
(2) "Exemplary damages" has the meaning assigned by Section 41.001.
(3) "Lien" means a claim in property for the payment of a debt and includes a security interest.
(4) "Public servant" has the meaning assigned by Section 1.07, Penal Code, and includes officers and employees of the United States.
Sec. 11.002. LIABILITY. (a) A person may not make, present, or use a document or other record with:
(1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;
(2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and
(3) intent to cause another person to suffer:
(A) physical injury;
(B) financial injury; or
(C) mental anguish or emotional distress.
(b) A person who violates Subsection (a) is liable to each injured person for:
(1) the greater of:
(A) $10,000; or
B) the actual damages caused by the violation;
(2) court costs;
(3) reasonable attorney's fees; and
(4) exemplary damages in an amount determined by the court.
Sec. 11.003. CAUSE OF ACTION.
(a) The following persons may bring an action to enjoin violation of this chapter or to
recover damages under this chapter:
(1) the attorney general;
(2) a district attorney;
(3) a criminal district attorney;
(4) a county attorney with felony responsibilities;
(5) a county attorney;
(6) a municipal attorney;
(7) in the case of a fraudulent judgment lien, the person against whom the Judgment is rendered; and
(8) in the case of a fraudulent lien or claim against real or personal property or an interest in real or personal property, the obligor or debtor, or a person who owns an interest in the real or personal property.
(b) Notwithstanding any other law, a person or a person licensed or regulated by Chapter 9, Insurance Code (the Texas Title Insurance Act), does not have a duty to disclose a fraudulent, as described by Section 51.901(c), Government Code, court record, document, or instrument purporting to create a lien or purporting to assert a claim on real property or an interest in real property in connection with a sale, conveyance, mortgage, or other transfer of the real property or interest in real property.
(c) Notwithstanding any other law, a purported judgment lien or document establishing or purporting to establish a judgment lien against property in this state, that is issued or purportedly
issued by a court or a purported court other than a court established under the laws of this state or the United States, is void and has no effect in the determination of any title or right to the property.
Sec. 11.004. VENUE. An action under this chapter may be brought in any district court in the county in which the recorded document is recorded or in which the real property is located.
Sec. 11.005. FILING FEES.
(a) The fee for filing an action under this chapter is $15. The plaintiff must pay the fee to the clerk of the court in which the action is filed. Except as provided by Subsection (b), the plaintiff may not be assessed any other fee, cost, charge, or expense by the clerk of the court orother public official in connection with the action.
(b) The fee for service of notice of an action under this section charged to the plaintiff may not exceed:
(1) $20 if the notice is delivered in person; or
(2) the cost of postage if the service is by registered or certified mail.
(c) A plaintiff who is unable to pay the filing fee and fee for service of notice may file with the court an affidavit of inability to pay under the Texas Rules of Civil Procedure.
(d) If the fee imposed under Subsection (a) is less than the filing fee the court imposes for filing other similar actions and the plaintiff prevails in the action, the court may order a defendant to pay to the court the differences between the fee paid under Subsection (a) and the filing fee the court imposes for filing other similar actions.
Sec. 11.006. PLAINTIFF'S COSTS.
(a) The court shall award the plaintiff the costs of bringing the action if:
(1) the plaintiff prevails; and
(2) the court finds that the defendant, at the time the defendant caused the recorded document to be recorded or filed, knew or should have known that the recorded document is fraudulent, as described by Section 51.901(c), Government Code.
(b) For purposes of this section, the costs of bringing the action include all court costs, attorney's fees, and related expenses of bringing the action, including investigative expenses.
Sec. 11.007. EFFECT ON OTHER LAW. This law is cumulative of other law under which a person may obtain judicial relief with respect to a recorded document or other record.
SECTION 17. Section 9.412(c), Business & Commerce Code, is repealed.
SECTION 18. An action for an order under Subchapter J, Chapter 51, Government Code, as added by this Act, may be brought with respect to a recorded document or instrument without regard to whether the document or instrument was filed before, on, or after
the effective date of this Act.
SECTION 19. A clerk must successfully complete one hour of continuing education regarding fraudulent court documents and fraudulent document filings required by Section 51.605(c), Government Code, as amended by this Act, before September 1, 1998.
SECTION 20. The change in law made by Section 16 of this Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before
the effective date of this Act is governed by the law in effect on the date the cause of action accrues, and that law is continued in effect for this purpose.
SECTION 21.
(a) The change in law made by this Act applies only to a criminal offense committed on or after the effective date of this Act. For the purposes of this Act, a criminal offense is committed before the effective date of this Act if any element of the offense occurs before that date.
(b) An offense committed before the effective date of this Act is covered by the law in effect when the criminal offense was committed, and the former law is continued in effect for this purpose.
SECTION 22. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1185 was passed by the House on March
13, 1997, by the following vote: Yeas 142, Nays 0, 1 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 1185 on April 7, 1997, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 1185 on May 8, 1997, by the following vote: Yeas 145,
Nays 0, 1 present, not voting.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1185 was passed by the Senate, with
amendments, on April 3, 1997, by the following vote: Yeas 31, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
1185 on May 10, 1997, by the following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor
,_.___
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