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 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:
MISC. DOCKET NO. ______In Re: A PurportedIn the ______ Judicial DistrictLien or Claim AgainstIn and For ___________________(Name of PurportedCounty, TexasDebtor)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:
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 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 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 Chapter 10, Civil Practice and Remedies Code, if this motion is determined to be frivolous.
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 under this section may be ruled on by a district judge having jurisdiction over real property matters in the county where the subject document was filed. 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. 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 or instrument 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 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:
MISC. DOCKET NO. ______In Re: A PurportedIn the ______ Judicial DistrictLien or Claim AgainstIn and For ___________________(Name of PurportedCounty, TexasDebtor)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 or instrument 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 or instrument 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;
(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; 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 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 personal 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 or instrument was originally filed, and the court directs the county clerk to index it using the same names that were used in indexing the subject documentation or instrument.
SIGNED ON THIS THE ________ DAY OF ____________________.
_______________________________
DISTRICT JUDGE
________ JUDICIAL DISTRICT
_____________ COUNTY, TEXAS
Added by Acts 1997, 75th Leg., ch. 189, Sec. 14, eff. May 21, 1997.
Section: Previous 51.803 51.804 51.805 51.806 51.807 51.851 51.852 51.901 51.902 51.903 51.904 51.905 51.941 51.942 51.943 NextLast modified: September 28, 2016