(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.
(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.
(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.
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.
(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.
(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.
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 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
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., 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
(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.
(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.
(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.
(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.
(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.
Note: WV Code updated with legislation passed through the 2012 1st Special Session
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