WHEN IS A LIEN PRESUMED FRAUDULENT PER STATUTE?
Pursuant to Section 51.901 of the Government Code, a document is "presumed" to be fraudulent if:
[T]he 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 law 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 personal 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.
TEX. GOV'T CODE ANN. § 51.901(c)(2) (West 2013).
A trial court may presume a document is fraudulent only if it makes one positive finding and three negative findings about the document; if the document is provided for by constitution or statute, created by agreement, or imposed by a court, then it is not "presumed fraudulent" under section 51.901(c)(2). See id.; In re Hai Quang La, No. 02-13-00110-CV, 2013 WL 5651746, at *3 (Tex. App.-Fort Worth Oct. 17, 2013, no pet. h.).
A trial court may base its finding solely on its review of the document itself and without hearing any testimonial evidence. TEX. GOV'T CODE ANN. § 51.903(c) (West 2013). A trial court may review the document ex parte and without delay or notice of any kind, but the trial court may make no finding as to any underlying claim. Id. § 51.903(c), (g); In re Purported Liens or Claims Against Samshi Homes, L.L.C., 321 S.W.3d 665, 667 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (holding that trial court may not rule on validity of underlying lien). The trial court also may not rule on any substantive evidentiary claim. Samshi Homes, 321 S.W.3d at 668.
A document filed in the form of a mechanic's lien is "provided for by the . . . laws of this state" and thus cannot be presumed to be fraudulent under section 51.901(c)(2)(A) of the Government Code. Id. at 667-68; see also David Powers Homes, 355 S.W.3d at 339 (discussing and applying holding of Samshi Homes).
SOURCE: HOUSTON COURT OF APPEALS - 01-13-00509-CV - 1/14/2014
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| Texas Government Code authorizes action to attack fraudulent lien |
LIEN NOT PRESUMPTIVELY FRAUDULENT HERE
Cardenas notified the Wilsons of his intent to file a mechanic's lien on Wilson's truck. Article 16, section 37 of the Texas Constitution and Chapter 53 of the Texas Property Code both provide a legal basis for a mechanic's lien. TEX. CONST. art. XVI, § 37 (West 1993); TEX. PROP. CODE ANN. Ch. 53 (West 2007). Cardenas' document is provided for by the laws of Texas and is thus not presumed to be fraudulent. See Samshi Homes, 321 S.W.3d at 667-68. The Wilsons respond that they adduced proof that Cardenas forged the repair authorization. The Wilsons' proof, however, does not refute the validity of a lien for a mechanical repair under Texas law, but rather attacks the merit of the underlying claim for payment for the repair.
Under the fraudulent lien statute, the trial court does not rule on the validity of the underlying claim creating the lien or rule on any substantive evidentiary claim. See id. at 667-68.
Conclusion
We hold that Cardenas' lien is not presumed fraudulent as defined by section 51.901 of the Texas Government Code. We therefore reverse and vacate the trial court's orders removing the lien and releasing the truck to the Wilsons.
SOURCE: HOUSTON COURT OF APPEALS - 01-13-00509-CV - 1/14/2014 - Cardenas v Wilson
Related earlier post: Remedy for fraudulent lien under the Texas Government Code
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