SENATE BILL No. 408
An Act concerning liens and claims against real or personal
property; relating to expedited process to review and determine
validity of such.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) (1) Any person who owns real
or personal property or
an interest in real or personal property or who is the purported
debtor
or obligor and who has reason to believe that any document or
instrument
purporting to create a lien or claim against the real or personal
property
or an interest in real or personal property previously filed or
submitted
for filing and recording is fraudulent as defined in subsection (e)
may
complete and file, at any time without any time limitation, with
the district
court of the county in which such lien or claim has been filed or
submitted
for filing a motion for judicial review of the status of
documentation or
instrument purporting to create a lien or claim as provided in this
section.
Such motion shall be supported by the affidavit of the movant or
the
movant's attorney setting forth a concise statement of the facts
upon
which the claim for relief is based. Such motion shall be in
substantially
the following form:
MISC. DOCKET No. ____________
In Re: A Purported Lien In the ________________ Judicial District
or Claim Against In and For ___________________________
(Name of Purported County, Kansas
Debtor)
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 ____________________________________ and in support of the motion would show
(filing office and location thereof)
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 filing officer's official duties as
______________________ the filing officer received and filed and recorded the docu-
(filing officer's position)
mentation or instrument attached hereto and containing ____________ pages. Such
documentation or instrument purports to have created a lien on real or personal property
or an interest in real or personal property against ____________, the purported
debtor.
III.
Movant alleges that the documentation or instrument attached hereto is fraudulent, as
defined by subsection (e) of section 1 and amendments thereto, 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 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
must be as follows:
AFFIDAVIT
THE STATE OF KANSAS)
)
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared _______________________________ ,
who, being by me duly sworn, deposed as follows:
``My name is___________________. I am over 18 years of age, of sound mind, with per-
sonal 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 Kansas
Notary's printed name: __________________________________
My commission expires: ____________
(2) The clerk of the district court shall not
collect a filing fee for filing
a motion as provided in this section.
(b) The court's finding may be made solely on a
review of the doc-
umentation or instrument attached to the motion and without
hearing
any testimonial evidence. The district court's review may be made
ex
parte without delay or notice of any kind. An appellate court shall
expedite
review of a district court's finding as provided in this
section.
(c) After review, the district court shall enter
an appropriate finding
of fact and conclusion of law in a form as provided in subsection
(d)
regarding the documentation or instrument purporting to create a
lien or
claim, which shall be filed and indexed in the same filing office
in the
appropriate class of records in which the original documentation or
in-
strument in question was filed. The filing officer shall not
collect a filing
fee for filing a district court's finding of fact and conclusion of
law as
provided in this section. A copy of the finding of fact and
conclusion of
law shall be mailed to the movant and the person who filed the 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 district
court.
(d) The findings of fact and conclusion of law
shall be in substantially
the following form:
MISC. DOCKET No.
In Re: A Purported Lien In the _________________ Judicial District
or Claim Against In and For ________________________
(Name of Purported County, Kansas
Debtor)
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 instru-
ment 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 as provided in section 1 and amend-
ments thereto.
The court finds as follows (only an item checked and initialed is a valid court ruling):
The documentation or instrument attached to the motion 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 repre-
sentative of that person; or
(3) IS an equitable, constructive or other lien imposed by a court of competent juris-
diction 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 filing officer 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 filing officer 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, Kansas
(e) As used in this section, a document or
instrument is presumed to
be fraudulent if the 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:
(1) Is not a document or instrument provided for
by the constitution
or laws of this state or of the United States;
(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 laws of
this state,
or by implied or express consent or agreement of an agent,
fiduciary or
other representative of that person; or
(3) 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.
(f) As used in this subsection, filing office or
filing officer refers to
the officer and office where a document or instrument as described
in
this section is appropriately filed as provided by law, including,
but not
limited to the register of deeds, the secretary of state and the
district
court and filing officers related thereto.
Sec. 2. This act shall take effect and be
in force from and after its
publication in the Kansas register.
I hereby certifiy that the above Bill originated in the
Senate, and passed that body
__________________________________
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| __________________________________ |
Passed the House __________________________
| __________________________________ |
| __________________________________ |
Chief Clerk of the House.
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Approved__________________________________
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