Atlanta, GA. The current foreclosure surge has (for some reason) brought with it a renewal of questions about “militia liens,” and “common law liens.” I thought that these liens had gone the way of diphtheria vaccinations and the Woody station wagon, but perhaps not.One of the more interesting fake liens was a lien for “Specific Performance.” Hey, if you are upset over a real estate contract that does not close, why retain a lawyer? Why challenge the Seller for not closing? Just jam his property with a “Lien for Specific Performance.” The Seller will come around to your offer when he realizes that he can’t sell it to another buyer.
Since the issue of nonconforming liens continues to arise, let us cover it again: 1) the only liens recognized in Georgia are listed at O.C.G.A. § 44-14-320(a) and 2) the removal of non-conforming liens is provided for at O.C.G.A. § 44-14-320(c).
If a lien in Georgia does not fit into the statutory definition of a lien at O.C.G.A. § 44-14-320, its NOT A LIEN. Here are the only liens against real property recognized in Georgia.
O.C.G.A. § 44-14-320. Certain Liens Established; Removal Of Nonconforming Liens.
(a) The following liens are established in this state:
(1) Liens for taxes in favor of the state, the counties, and the municipal corporations;
(2) Liens in favor of creditors by judgment and decree;
(3) Liens in favor of laborers;
(4) Liens in favor of landlords;
(5) Liens in favor of mortgagees;
(6) Liens in favor of landlords furnishing supplies;
(7) Liens in favor of mechanics on real and personal property;
(8) Liens in favor of contractors, materialmen, subcontractors, materialmen furnishing material to subcontractors, and laborers furnishing labor to subcontractors, machinists, and manufacturers of machinery. As used in this paragraph, the term "subcontractor" includes, but is not limited to, subcontractors having privity of contract with the prime contractor;
(9) Liens in favor of certain creditors against steamboats and other watercraft;
(10) Liens in favor of the proprietors of sawmills and the proprietors of planing mills and other similar establishments;
(11) Liens in favor of innkeepers, boardinghouse keepers, carriers, livery stable keepers, pawnbrokers, depositories, bailees, factors, acceptors, and attorneys at law;
(12) Liens in favor of owners of stallions, jacks, bulls, and boars;
(13) Liens in favor of railroad employees, owners of stock killed, and persons furnishing supplies to railroads;
(14) Liens in favor of laundrymen;
(15) Liens in favor of jewelers; and
(16) Liens in favor of the state for expenditures from the hazardous waste trust fund pursuant to subsection (e) of Code Section 12-8-96. Such liens shall be superior to all other liens except liens for taxes and other prior perfected recorded liens or claims of record.
(b)(1) All liens provided for in this chapter or specifically established by federal or state statute, county, municipal, or consolidated government ordinance or specifically established in a written declaration or covenant which runs with the land shall be exempt from subsection (c) of this Code section. All other liens shall be defined as nonconforming liens and shall not be eligible for filing and recording.
(2) Each nonconforming lien shall be a nullity with no force or effect whatsoever, even if said nonconforming lien is filed, recorded, and indexed in the land records of one or more counties in this state.
And, this one other statute:
O.C.G.A. § 44-14-322. Vendor's Equitable Lien Abolished.
The vendor's equitable lien for the purchase money of lands is abolished.
& & &
REMOVAL OF NONCONFORMING LIENS
& & &
If you do find a “Lien For Specific Performance,” or a “Lien for Songs Downloaded onto your IPOD for which you did not pay” on your real property, it can be removed without a lawsuit.
Simply have your lawyer draw up A PETITION TO REMOVE A NONCONFORMING LIEN according to the pattern described below and file it with the Clerk of the Superior Court. You will have to follow the petition to see that it is signed by the Judge to whom it is assigned or the Presiding Judge. Once signed, it needs to be filed and cross referenced in the real estate records. And, volia, the lien is removed.
& & &
O.C.G.A. § 44-14-320 (c)(1) Any person, corporation, or other entity against whose property a nonconforming lien is filed or recorded may, without notice to any party, file an ex parte petition for an order to remove a nonconforming lien from the record in the superior court of the county in which said lien is filed or recorded and obtain an order from said superior court directing the clerk of the superior court to record the order and mark the recorded nonconforming lien: "CANCELED OF RECORD PURSUANT TO ORDER DATED ______________, RECORDED AT DEED BOOK _______, PAGE _______. THIS ______ DAY OF ______________, ____." The petition shall set forth that:
(A) The movant is a party against whose property a nonconforming lien is filed;
(B) The lien in question is a nonconforming lien as defined under this Code section; and
(C) A certified copy of the nonconforming lien is attached as an exhibit.
The petition must be executed by the movant or movant's attorney.
The order may be entered as early as the date of filing of the petition and shall set forth that, upon review of the petition and the certified copy of the recorded instrument attached thereto, it is the order of the court that said lien is a nonconforming lien under this Code section and that the clerk of the court is ordered to record the order and mark the nonconforming lien canceled of record.
(2) Any official or employee of the government of this state or any branch thereof, any political subdivision of this state, or the government of the United States or any branch thereof against whose property a nonconforming lien is filed or recorded may, without notice to any party and in lieu of the procedure provided by paragraph (1) of this subsection, file an ex parte affidavit of nonconforming lien in the superior court of the county in which said lien is filed or recorded. The affidavit shall set forth that:
(A) Such person against whose property a nonconforming lien is filed is an official or employee of the government of this state or a branch thereof, a political subdivision of this state, or the government of the United States or a branch thereof;
(B) The lien in question is a nonconforming lien as defined under this Code section and was filed against the government official or employee based upon the performance or nonperformance of his or her official duties; and
(C) A certified copy of the nonconforming lien is attached as an exhibit.
The affidavit filed for such government official or employee must be executed by the Attorney General or a deputy or assistant attorney general in the case of an official or employee of the government of this state or a branch thereof, the attorney representing a political subdivision of this state in the case of an official or employee of such political subdivision, or a United States attorney or an assistant United States attorney in the case of an official or employee of the government of the United States or a branch thereof. The lien shall be conclusively presumed to be nonconforming upon the filing of such affidavit, and the clerk of the court shall instanter mark the recorded nonconforming lien: "CANCELED OF RECORD PURSUANT TO AFFIDAVIT DATED ______________, RECORDED AT DEED BOOK ______, PAGE ______. THIS ______ DAY OF ______________, ____.”
& & &
The Removal Statute does not contain any monetary penalty against the individual (or entity) who filed the wrongful lien. There does not seem to be any quick statute that grants recovery. For example, it is not a civil proceeding, so O.C.G.A. § 9-15-14 and O.C.G.A. § 9-7-80 do not seem to apply. It could be “bad faith,” under O.C.G.A. § 13-6-11, however there is no suit pending under which you could recover damages.
It would appear, unless someone has an answer I have overlooked, that the individual filing the lien does so with monetary impunity. The landowner (wrongfully liened) must pay for the Petition to Remover the Non Conforming Lien, pay all of the Certified Copies necessary to prepare and file the Non Conforming Petition, pay for the trouble and expense chasing the Petition through the Superior Court system for a Judge’s Signature, pay the filing fees for the Real Estate Desk to Process the filing and in indexing ($10 for the first page and $2 for each page thereafter) and pay the $2 for each cross reference back to the original base title.
& & &
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068
No comments:
Post a Comment