ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 608
(Senators Wooton, Dittmar, Boley, Kessler, Hunter, Ball, Plymale and
Prezioso, original sponsors)
____________
[Passed March 13, 1999; in effect ninety days from passage.]
____________
AN ACT to amend chapter thirty-eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article sixteen; to amend
and reenact section twenty-seven, article five, chapter sixty- one of said code; and to further amend said article by adding
thereto a new section, designated section twenty-seven-a, all
relating to prohibiting the filing of fraudulent liens;
establishing means of invalidating and removing fraudulent
liens that have been filed or recorded; intimidation and
retaliation against public officials, employees, jurors and
witnesses; fraudulent official proceedings and legal processes
and filing and serving fraudulent legal processes;
impersonating public officials, employees or tribunals; and
civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That chapter thirty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article sixteen; that section
twenty-seven, article five, chapter sixty-one of said code be
amended and reenacted; and that said article be further amended by
adding thereto a new section, designated section twenty-seven-a,
all to read as follows:
CHAPTER 38. LIENS.
ARTICLE 16. FRAUDULENT COMMON LAW LIENS.
Part 1. Definitions.
§38-16-101. Definitions; application of definitions.
For the purposes of this article, the words and phrases
defined in the following sections of this part I, and any variation
of those words and phrases required by the context, have the
meanings ascribed to them in this part I. These definitions are
applicable unless a different meaning clearly appears from the
context.
§38-16-102. Court of competent jurisdiction defined.
"Court of competent jurisdiction" means a circuit court,
magistrate court or administrative agency within this state or a
court or administrative agency of another state, or a court or
administrative agency of the federal government having jurisdiction
and due legal authority to establish a charge against or an
interest in real or personal property by ordering or authorizing the imposition of a lien against the property.
§38-16-103. Federal government defined.
"Federal government" means the government of the United States
of America and includes the executive, legislative and judicial
branches; and the term also includes quasi-public corporations and
independent commissions or authorities primarily acting as
instrumentalities or agencies of the United States, but does not
include any contractor with the United States.
§38-16-104. Federal official or employee defined.
"Federal official or employee" means an officer or employee of
the federal government temporarily or permanently in the service of
the United States, members of the military or naval forces of the
United States, members of the national guard, and persons acting on
behalf of the United States in an official capacity, whether with
or without compensation.
§38-16-105. Lien defined.
"Lien" means a charge against or an interest in property to
secure payment of a debt or performance of an obligation, and
includes a security interest created by agreement, a judicial lien
obtained by legal or equitable process or proceedings, a common law
lien, or a statutory lien.
§38-16-106. Nonconsensual common law lien defined.
"Nonconsensual common law lien" means a fraudulent lien that
is misrepresented as a valid lien because it:
(1) Is not provided for by a specific statute;
(2) Does not derive its existence from the consent of the
owner of the affected property; and
(3) Is not an equitable lien or other lien imposed by a court
of competent jurisdiction.
§38-16-107. Purported court defined.
"Purported court" means a so-called common law court or other
purported court or purported judicial entity that is not expressly
created or established under the constitution or the laws of this
state or of the United States.
§38-16-108. State or local official or employee defined.
"State or local official or employee" means a person, whether
appointed or elected, providing services to a branch of state
government or to a political subdivision of this state, whether
with or without compensation.
Part 2. Common law liens.
§38-16-201. Bonafide liens are not affected by this article.
Regardless of whether such liens may also be considered to be
common law liens, nothing in this article is intended to affect:
(1) Statutory liens arising under an enactment of the
Legislature;
(2) Equitable liens, constructive liens and other liens that
are imposed by a court of competent jurisdiction; or
(3) Consensual liens now or hereafter recognized under the common law of this state.
§38-16-202. Real property common law liens unenforceable; personal
property common law liens limited.
(a) A common law lien against real property is invalid and is
not recognized or enforceable in this state.
(b) A common law lien claimed against personal property is
invalid and is not recognized or enforceable if, at the time the
lien is claimed, the claimant does not have:
(1) Actual possession, lawfully acquired, of specific personal
property against which the lien is asserted; or
(2) Exclusive control, lawfully acquired, of specific personal
property against which the lien is asserted.
(c) A valid common law lien claimed against personal property
is destroyed or terminated if the person entitled to the lien fails to retain possession or control of the property, unless the person
against whom the lien is asserted agrees, in writing, that the lien
may continue after delivery of the property from the possession of
the lienholder.
Part 3. Provisions governing the filing of CLAIMS OF common law liens.
§38-16-301. Filing or recording a claim of nonconsensual common
law lien is of no force or effect.
A nonconsensual common law lien is invalid and does not
constitute a charge against property or create an interest in
property. The filing or recording of a document that purports to
evidence a nonconsensual common law lien is a nullity and is of no
force or effect.
§38-16-302. No duty to accept filing of purported common law lien;
no duty to reject filing of purported common law lien.
A clerk of a county commission or other person has no duty to
accept for filing or recording any purported claim of a common law
lien, because a common law lien is neither authorized by statute
nor imposed by a court of competent jurisdiction. A clerk of a
county commission or other person has no duty to reject for filing
or recording any claim of a common law lien, and the inadvertent or
negligent recordation of a claim of a common law lien by a clerk of
a county commission or other recorder does not create a cause of action against that official.
§38-16-303. Claim of lien against a federal official or employee
or a state or local official or employee; performance of
duties; validity; no duty to accept filing; notice of invalid
lien.
(a) Any claim of lien against a federal official or employee
or a state or local official or employee that is based on the
performance or nonperformance of that official's or employee's
duties is invalid unless it arises from a specific order of a court
of competent jurisdiction authorizing the filing of the lien or
unless a specific statute authorizes the filing of the lien.
(b) A person is not obligated to accept for filing any
purported claim of lien against a federal official or employee or
a state or local official or employee that is based on the
performance or nonperformance of that official's or employee's
duties unless the claim is accompanied by a specific order from a
court of competent jurisdiction authorizing the filing of such lien
or unless a specific statute authorizes the filing of such lien.
A person has no duty to reject for filing or recording any claim of
lien against a federal official or employee or a state or local
official or employee that is based on the performance or
nonperformance of that official's or employee's duties, and the inadvertent or negligent recordation of such a claim by a clerk of
a county commission or other recorder does not create a cause of
action against that official.
(c) If a claim of lien as described in subsection (a) of this
section has been accepted for filing, the recording officer shall
accept for filing a notice of invalid lien signed and submitted by
the assistant United States attorney or other counsel representing
the federal agency of which the individual is an official or
employee; the assistant attorney general or other counsel
representing the state agency, board, commission, department, or
institution of higher education of which the individual is an
official or employee; or the prosecuting attorney or municipal
attorney or other counsel representing the school district,
political subdivision, or unit of local government of this state of
which the individual is an official or employee. A copy of the
notice of invalid lien shall be mailed by the attorney to the
person who filed the claim of lien, at his or her last known
address. The clerk of the county commission shall file and index
the notice of invalid lien in the same class of records in which
the purported claim of lien was originally filed.
§38-16-304. No duty to disclose record of common law lien.
No person has a duty to disclose an instrument of record or file that attempts to give notice of a common law lien. This
section does not relieve any person of any duty which otherwise may
exist to disclose a claim of lien authorized by statute or imposed
by order of a court of competent jurisdiction.
§38-16-305. Immunity from liability for failure to accept filing
or disclose common law lien.
A clerk of the county commission or other person is not
liable for the acceptance for filing of an invalid claim of a
nonconsensual common law lien, nor for the acceptance for filing of
a notice of invalid lien. A clerk of the county commission or
other person is not liable for damages arising from a refusal to
record or file or a failure to disclose any claim of a purported
common law lien of record.
§38-16-306. No duty to disclose fraudulent lien record; lien of
purported court is a nullity.
(a) An attorney, title insurance company or other title
examiner does not have a duty to disclose a fraudulent court
record, document, or instrument purporting to create a
nonconsensual common law lien asserting 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.
(b) 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 a nullity and has no effect in
the determination of any title or right to the property.
Part 4. Action s to strike or remove nonconsensual common law lien.
§38-16-401. Notice by clerk of fraudulent lien.
(a) If a clerk of the county commission has a reasonable
basis to believe in good faith that a document or instrument
purporting to evidence an invalid nonconsensual common law lien
has been filed or recorded or offered for filing or recording,
the clerk shall provide a written notice as follows:
(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, the clerk shall
provide written notice of the filing, recording, or submission
for filing or 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 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)(1) If the document is not yet filed or recorded, the
clerk shall provide written notice under subsection (a) not later
than the second business day after the date that the document is
submitted for filing or recording; or
(2) If the document or instrument has been previously filed
or recorded, the clerk shall provide written notice under
subsection (a) 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 styled as a judgment or other document
purporting to memorialize or evidence an act, an order, a
directive, or process of a purported court; or
(2) The document or instrument purports to create a lien or
security interest or otherwise create a charge against real or personal property and:
(A) It is not a document or instrument provided for by the
constitution or laws of this state or of the United States;
(B) It is not created by implied or express consent or
agreement of the alleged obligor, debtor, or the owner of the
real or personal property or an interest in the real or personal
property, or by implied or express consent or agreement of an
agent, fiduciary, or other representative of that person; or
(C) It is not an equitable, constructive, or other lien
imposed by a court of competent jurisdiction.
§38-16-402. 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 clerk of the circuit
court a motion, verified by affidavit, that contains, at a
minimum, the information in the following suggested form:
IN THE CIRCUIT COURT OF COUNTY, WEST VIRGINIA
In Re: A Purported Judgment Lien Against
(Name of Purported Debtor)
MOTION FOR JUDICIAL REVIEW OF A DOCUMENT
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 purported judgment lien filed in the office of the clerk
of the county commission, 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 official duties as Clerk of the
County Commission of (county name) County, West Virginia, the
county clerk received and filed or filed and recorded the attached
documentation containing (number) pages. The 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 "(name of purported court)" against one
(name of purported debtor).
III.
Movant alleges that the purported court referred to in the
attached documentation is one described in W.Va. Code, §38-16-108,
as not legally created or established under the constitution or laws of this state or of the United States, and that the document
therefore not to 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 acknowledgment must be as follows:
THE STATE OF WEST VIRGINIA,
COUNTY OF ______________, To-wit:
I, ________________________, a notary public of said county;
(or other officer or person authorized to take acknowledgments), do
certify that _______________________, whose name (or names) is (or
are) signed to the attached motion, dated the _________ day of
_____________, ______, has (or have) this day acknowledged the same
before me, in my said ____________________.
Given under my hand this _________ day of _________________,
______.
Notary Public, State of West Virginia
Notary's printed name:
My commission expires:
(c) A motion filed under this section may be ruled on by a
circuit judge 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.
(d) The clerk of the circuit court may not charge a filing fee
for filing a motion under this section.
(e) After reviewing the documentation attached to a motion
under this section, the circuit judge shall enter appropriate
findings of fact and conclusions 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 findings of fact and conclusions of law under
this section.
(g) A suggested form order appropriate to comply with this
section is as follows:
IN THE CIRCUIT COURT OF COUNTY, WEST VIRGINIA
In Re: A Purported Judgment Lien Against
(Name of Purported Debtor)
JUDICIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
REGARDING A DOCUMENTATION PURPORTING TO CREATE A JUDGMENT LIEN
On the (number) day of (month), (year), in the above entitled
action, this Court reviewed a motion verified by (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 W.Va. Code, §38-16-101, et seq.
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 findings of fact and
conclusions 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 this _____ day of ______________, ______.
Judge,
Circuit Court of County,
West Virginia
§38-16-403. 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 personal
property, and who has reason to believe that the document purporting to create a lien or a claim against the real or personal
property or an interest in the real or personal property previously
filed or submitted for filing and recording is fraudulent, may
complete and file with the clerk of the circuit court a verified
motion that contains, at a minimum, the information in the
following suggested form:
IN THE CIRCUIT COURT OF , WEST VIRGINIA
In Re: A Purported Lien or Claim Against
(Name of Purported Debtor)
MOTION FOR JUDICIAL REVIEW OF DOCUMENTATION
PURPORTING TO CREATE A LIEN OR CLAIM
Now comes (name) and files this motion requesting a judicial
determination of the status of 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, West Virginia, 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.
II.
On (date), in the exercise of official duties as Clerk of the
County Commission of (county name) County, West Virginia, the
county clerk received and filed and recorded the documentation
attached hereto and containing (number) pages. The documentation
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 W.Va. Code, §38-16-101, et
seq., and that the documentation or instrument should therefore not
be accorded lien status.
IV.
Movant attests that assertions herein are true and correct.
V.
Movant does not request the court to make a finding as to any
underlying claim of the parties involved and acknowledges that this
motion does not seek to invalidate a legitimate lien. Movant
further acknowledges that movant may be subject to sanctions, as
provided by Rule 11 of the West Virginia Rules of Civil Procedure for Trial Courts of Record, if this motion is determined to be
frivolous.
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 acknowledgment must be as follows:
THE STATE OF WEST VIRGINIA,
COUNTY OF ______________, To-wit:
I, ________________________, a notary public of said county;
(or other officer or person authorized to take acknowledgments), do
certify that _______________________, whose name (or names) is (or
are) signed to the attached motion, dated the _________ day of
_____________, ______, has (or have) this day acknowledged the same
before me, in my said ____________________.
Given under my hand this _________ day of __________________,
______.
Notary Public, State of West Virginia
Notary's printed name:
My commission expires:
(c) A motion under this section may be ruled on by a circuit
judge in the county where the subject document was filed. The
court's finding may be made solely on a review of the documentation
attached to the motion and without hearing any testimonial
evidence. The court's review may be made ex parte without delay or
notice of any kind.
(d) The clerk of the circuit court 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 circuit judge shall enter appropriate
findings of fact and conclusions 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
findings of fact and conclusions of law shall be sent, by first
class mail, to the movant and to the person 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 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:
IN THE CIRCUIT COURT OF COUNTY, WEST VIRGINIA
In Re: A Purported Judgment Lien Against
(Name of Purported Debtor)
JUDICIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
REGARDING A DOCUMENTATION PURPORTING TO CREATE A JUDGMENT LIEN
On the (number) day of (month), (year), in the above entitled
action, this court reviewed a motion verified by (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 W.Va,.a., Code, §38-16-101, et seq.
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;
(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, or by consent of an
agent, fiduciary, or other representative of that
person; 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.
[ ] The documentation or instrument attached to the motion:
(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 personal property, 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 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 this _____ day of ______________, ______.
Judge,
Circuit Court of County,
West Virginia
§38-16-404. Costs and attorneys' fees.
If, following a hearing on the matter, the court determines
that the claim of lien is invalid, the court shall issue an order awarding costs and reasonable attorneys' fees to the petitioner to
be paid by the lien claimant. If the court determines that the
claim of lien is valid, the court shall issue an order so stating
and may award costs and reasonable attorneys' fees to the lien
claimant to be paid by the movant.
§38-16-405. Warning sign.
A clerk of the county commission 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.
§38-16-406. Documents filed with secretary of state.
(a) If the lien or other claim that is the subject of judicial
findings of fact and conclusions of law authorized by this article
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
findings of fact and conclusions 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 five dollars for filing a certified copy of judicial findings of fact
and conclusions of law under this section.
Part 5. Liability for fraudulent court record or a fraudulent lien.
§38-16-501. 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, 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.
§38-16-502. Cause of action.
(a) The following persons may bring an action to enjoin violation
of this article or to recover damages under this article:
(1) In the case of a fraudulent judgment lien, the person
against whom the judgment is rendered; and
(2) 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.
§38-16-503. Venue.
An action under this part 5 may be brought in any circuit
court in the county in which the recorded document is recorded or
in which the real property is located.
§38-16-504. Filing fees.
(a) The fee for filing an action under this chapter is fifteen
dollars. 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 or other 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) Twenty dollars 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.
(d) Since the fee imposed under subsection (a) of this section
is less than the filing fee the court imposes for filing other
similar actions, if 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.
§38-16-505. 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.
(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.
§38-16-506. Effect on other law.
This part 5 is cumulative of other law under which a person
may obtain judicial relief with respect to a recorded document or
other record.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-27. Intimidation of and retaliation against
public officers
and employees, jurors and witnesses; fraudulent official
proceedings and legal processes against
public officials and
employees; penalties.
(a) Definitions. -- As used in this section:
(1) "Fraudulent" means not legally issued or sanctioned under
the laws of this state or of the United States, including forged,
false and materially misstated;
(2) "Legal process" means an action, appeal, document
instrument or other writing issued, filed or recorded to pursue a
claim against person or property, exercise jurisdiction, enforce a
judgement, fine a person, put a lien on property, authorize a search and seizure, arrest a person, incarcerate a person or direct a
person to appear, perform or refrain from performing a specified
act. "Legal process" includes, but is not limited to, a complaint,
decree, demand, indictment, injunction, judgment, lien, motion,
notice, order, petition, pleading, sentence, subpoena, summons,
warrant or writ;
(3) "Official proceeding" means a proceeding involving a legal
process or other process of a tribunal of this state or of the
United States;
(4) "Person" means an individual, group, association,
corporation or any other entity;
(5) "Public official or employee" means an elected or
appointed official or employee, of a state or federal court,
commission, department, agency, political subdivision or any
governmental instrumentality;
(6) "Recorder" means a clerk or other employee in charge of
recording instruments in a court, commission or other tribunal of
this state or of the United States; and
(7) "Tribunal" means a court or other judicial or quasi- judicial entity, or an administrative, legislative or executive
body, or that of a political subdivision, created or authorized
under the constitution or laws of this state or of the United States.
(b) Intimidation; harassment. -- It is unlawful for a person
to use intimidation, physical force, harassment or a fraudulent
legal process or official proceeding, or to threaten or attempt to
do so, with the intent to:
(1) Impede or obstruct a public official or employee from
performing his or her official duties;
(2) Impede or obstruct a juror or witness from performing his
or her official duties in an official proceeding;
(3) Influence, delay or prevent the testimony of any person in
an official proceeding; or
(4) Cause or induce a person to: (A) wWithhold testimony, or
withhold a record, document or other object from an official
proceeding; (B) alter, destroy, mutilate or conceal a record,
document or other object impairing its integrity or availability
for use in an official proceeding; (C) evade an official proceeding
summoning a person to appear as a witness or produce a record,
document or other object for an official proceeding; or (D) be
absent from an official proceeding to which such person has been
summoned.
(c) Retaliation. -- It is unlawful for a person to cause injury or loss to person or property, or to threaten or attempt to
do so, with the intent to:
(1) Retaliate against a public official or employee for the
performance or nonperformance of an official duty;
(2) Retaliate against a juror or witness for performing his or
her official duties in an official proceeding;
(3) Retaliate against any other person for attending,
testifying or participating in an official proceeding, or for the
production of any record, document or other object produced by a
person in an official proceeding.
(d) Subsection (b) offense. -- A person who is convicted of an
offense under subsection (b) is guilty of a misdemeanor and shall
be confined in jail for not more than one year or fined not more
than one thousand dollars, or both.
(e) Subsection (c) or subsequent offense. -- A person
convicted of an offense under subsection (c) or a second offense
under subsection (b) is guilty of a felony and shall be confined in
the penitentiary not less than one nor more than ten years or fined
not more than two thousand dollars, or both.
(f) Civil cause of action. -- A person who violates this
section is liable in a civil action to any person harmed by the violation for injury or loss to person or property incurred as a
result of the commission of the offense and for reasonable
attorney's fees, court costs and other expenses incurred as a
result of prosecuting a civil action commenced under this
subsection, which is not the exclusive remedy of a person who
suffers injury or loss to person or property as a result of a
violation of this section.
(g) Civil sanctions. -- In addition to the criminal and civil
penalties set forth in this section, any fraudulent official
proceeding or legal process brought in a tribunal of this state in
violation of this section shall be dismissed by the tribunal and
the person may be ordered to reimburse the aggravated person for
reasonable attorney's fees, court costs and other expenses incurred
in defending or dismissing such action.
(1) Refusal to record. -- A recorder may refuse to record a
clearly fraudulent lien or other legal process against a public
official or employee or his or her property. The recorder does not
have a duty to inspect or investigate whether a lien or other legal
process is fraudulent nor is the recorder liable for refusing to
record a lien or other legal process that the recorder believes is
in violation of this section.
(2) If a fraudulent lien or other legal process against a
public official or employee or his or her property is recorded
then:
(A) Request to release lien. -- The public official or
employee may send a written request by certified mail to the person
who filed the fraudulent lien or legal process, requesting the
person to release or dismiss the lien or legal process. If such
lien or legal process is not properly released or dismissed within
twenty-one days, then it shall be inferred that the person intended
to harass the public official or employee in violation of
subsection (b) of this section and shall be subject to the criminal
penalties in subsection (d) of this section and any other remedies
provided for in this section; or
(B) Notice of fraudulent lien. -- A government attorney on
behalf of the public official or employee may record a notice of
fraudulent lien or legal process with the recorder who accepted the
lien or legal process for filing. Such notice shall invalidate the
fraudulent lien or legal process and cause it to be removed from
the records. No filing fee shall be charged for the filing of the
notice.
(h) A person's lack of belief in the jurisdiction or authority of this state or of the United States is no defense to prosecution
of a civil or criminal action under this section.
(i)(1) Nothing in this section prohibits or in any way limits
the lawful acts of legitimate public officials or employees.
(2) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate right to freely assemble, express
opinions or designate group affiliation.
(3) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate access to a tribunal of this state
or prevents a person from instituting or responding to a lawful
action.
§61-5-27a. Fraudulent official proceedings; causing a public
employee or official to file a fraudulent legal process;
impersonation of a public official, employee or tribunal;
penalties.
(a) Definitions. -- For the purpose of this section, the
following terms have the meaning ascribed to them in section
twenty-seven of this article: "Fraudulent", "legal process",
"official proceeding", "person", "public official or employee",
"recorder", and "tribunal".
(b) Fraudulent official proceedings. -- It is unlawful for a
person to knowingly engage in a fraudulent official proceeding or legal process.
(c) Fraudulent filings. -- It is unlawful for a person to
knowingly cause a public official or employee to file, record or
deliver a fraudulent claim of indebtedness, common law lien or
other lien, financial statement, complaint, summons, judgement,
warrant or other legal process, including those issued as the
result of a fraudulent official proceeding.
(d) Fraudulent service. -- It is unlawful for a person to
knowingly serve a public official or employee with a fraudulent
claim of indebtedness, common law lien or other lien, financial
statement, complaint, summons, judgement, warrant or other legal
process, including those issued as the result of a fraudulent
official proceeding.
(e) Impersonation. -- It is unlawful for a person to knowingly
impersonate or purport to exercise any function of a public
official, employee, tribunal or official proceeding without legal
authority to do so and with the intent to induce a person to submit
to or rely on the fraudulent authority of the person.
(f) First offense. -- Any person who violates a provision of
this section is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for not more than one year or fined not more than one thousand dollars, or
both.
(g) Second offense. -- Any person convicted of a second or
subsequent offense under this section is guilty of a felony and
shall be confined in the penitentiary not less than one nor more
than ten years or fined not more than two thousand dollars, or
both.
(h) Civil cause of action. -- A person who violates this
section is liable in a civil action to any person harmed by the
violation for injury or loss to person or property incurred as a
result of the commission of the offense and for reasonable
attorney's fees, court costs and other expenses incurred as a
result of prosecuting the civil action commenced under this
subsection, which is not the exclusive remedy of a person who
suffers injury or loss to person or property as a result of a
violation of this section.
(i) Civil sanctions. -- In addition to the criminal and civil
penalties set forth in this section, a fraudulent official
proceeding or legal process brought in a tribunal in violation of
this section shall be dismissed by the tribunal and the person may
be ordered to reimburse the aggravated person for reasonable attorney's fees, court costs and other expenses incurred in
defending or dismissing such action.
(1) Refusal to record. -- A recorder may refuse to record a
clearly fraudulent lien or other legal process against a person or
his or her property. The recorder does not have a duty to inspect
or investigate whether a lien or other legal process is fraudulent
nor is the recorder liable for refusing to record a lien or other
legal process that the recorder believes is in violation of this
section.
(2) If a fraudulent lien or other legal process against a
person or his or her property is recorded then:
(A) Request to release lien. -- A person may send a written
request by certified mail to the person who filed the fraudulent
lien or legal process, requesting the person to release or dismiss
the lien or legal process. If such lien or legal process is not
properly released or dismissed within twenty-one days, then the
person shall be presumed to have intended to have committed a
violation of this section and shall be subject to the penalties
provided for in this section; or
(B) Petition to circuit court. -- A person may petition the
circuit court of the county where the fraudulent lien or legal process was recorded for an order that may be granted ex parte
directing the person who filed the lien or legal process to appear
before the court and show cause why the lien or legal process
should not be released or dismissed, deemed fraudulent and the
person penalized as provided for in this section.
(i) The petition shall set forth a concise statement of the
facts and the grounds upon which relief is requested.
(ii) No filing fee shall be charged for the filing of such
petitions.
(iii) The order to show cause shall be served upon the person
who filed the lien or legal process according to rule 4 of the
rules of civil procedure and the date of the hearing set within
twenty-one days of the order.
(iv) The order to show cause shall clearly state that if the
person who filed the lien or legal process fails to appear at the
time and place noticed in the order, then the lien or legal process
shall be released or dismissed, deemed fraudulent and the person
shall be subject to the penalties provided for in this section.
(v) If a hearing takes place or if, on its own motion, the
circuit court determines that the lien or legal process is
fraudulent, then the circuit court shall release or dismiss it and
subject the person to the penalties provided for in this section.
(vi) If the circuit court determines that the lien or legal
process is valid, then the circuit court shall issue an order
stating such and may award reasonable attorney's fees, court costs
and other expenses to the prevailing party.
(j) A person's lack of belief in the jurisdiction or authority
of this state or of the United States is no defense to prosecution
of a civil or criminal action under this section.
(k)(1) Nothing in this section prohibits or in any way limits
the lawful acts of a legitimate public official or employee.
(2) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate right to freely assemble, express
opinions or designate group affiliation.
(3) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate access to a tribunal of this state,
or prevents a person from instituting or responding to a lawful
action.