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:
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)
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
,_.___
