Wednesday, August 24, 2011
Suit to remove fraudulent lien, instrument in county real estate records
Removal of Fraudulent Lien (statutory cause of action)
Texas Government Code section 51.903, entitled “Action on Fraudulent Lien on Property,” provides in subsection (a) as follows:
(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 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 in the following suggested form:
In Re: A Lien or Claim Against (Name of Purported Debtor)
MISC. DOCKET NO. ________
In the _______ Judicial District
In and For ________________ County Texas
Motion for Judicial Review of Documentation or Instrument 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, Texas, and in support of the motion would show the court as follows:
(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.
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 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).
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.
Movant attests that assertions herein are true and correct.
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 Chapter 10, Civil Practice and Remedies Code, if this motion is determined to be frivolous.
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.
(Signature and typed name and address)
Tex. Gov’t Code Ann. § 51.903(a).
The movant may attach the allegedly fraudulent documentation or instrument to the motion. See id. Section 51.903 further provides, “The court’s finding may be made solely on a review of the documentation or instrument 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.” Id. § 51.903(c).
For purposes of a section 51.903 action, a fraudulent document or instrument is defined as (1) a document or instrument that “is not a document or instrument provided for by the constitution or laws of this state or of the United States”; (2) a document or instrument “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”; or (3) a document or instrument that “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.” Id. § 51.901(c)(2); see id. § 51.903(a). Thus, if a trial court finds that a document or instrument is provided for by state or federal law or constitutional provision, the court has determined that the document or instrument is not fraudulent. See id. § 51.901(c)(2); see also id. § 51.903(a).
SOURCE: Houston Court of Appeals - 01-10-00967-CV - 8/18/11