58-4301. Liens and claims against real or personal property; expedited process to review and determine validity.
58-4301
58-4301. Liens and claims against real or personalproperty; expedited process to review and determine validity.(a) (1) Any person who owns real or personal property or aninterest in real or personal property or who is the purported debtor or obligorand who has reason to believe that any document or instrument purporting tocreate a lien or claim against the real or personal property or an interest inreal or personal property previously filed or submitted for filing andrecording is fraudulent as defined in subsection (e) may complete and file, atany time without any time limitation, with the district court of the county inwhich such lien or claim has been filed or submitted for filing, or with thedistrict court of the county in which the property or the rights appertainingthereto is situated, a motion for judicial review of the status ofdocumentation or instrument purporting to create a lien or claim as provided inthis section. Such motion shall be supported by the affidavit of the movant orthe movant's attorney setting forth a concise statement of the facts upon whichthe claim for relief is based. Such motion shall be deemed sufficient if insubstantial compliance with theform set forth by the judicial council.
(2) The completed form for ordinary certificate ofacknowledgment shall be deemed sufficient if insubstantial compliance with the form set forth by the judicial council.
(3) The clerk of the district court shall not collect a filing fee for filinga motion as provided in this section.
(b) The court's findings may be made solely on a review of the documentationor instrument attached to the motion and without hearing any testimonialevidence. The district court's review may be made ex parte without delay ornotice of any kind. An appellate court shall expedite review of a districtcourt's findings as provided in this section.
(c) After review, the district court shall enter appropriate findings of factand conclusions of law in a form as provided in subsection (d) regarding thedocumentation or instrument purporting to create a lien or claim, which shallbe filed and indexed in the same filing office in the appropriate class ofrecords in which the original documentation or instrument in question wasfiled. The court's findings of fact and conclusions of law may include an ordersetting aside the lien and directing the filing officer to nullify the lieninstrument purporting to create the lien or claim. If the lien or claim wasfiled pursuant to the uniform commercial code, such order shall act as atermination statement filed pursuant to such code. The filing officer shall notcollect a filing fee for filing a district court's findings of fact andconclusions of law as provided in this section. A copy of the findings of factand conclusions of law shall be mailed to the movant and the person who filedthe lien or claim at the last known address of each person within seven days ofthe date that the findings of fact and conclusions of law is issued by thedistrict court.
(d) The findings of fact and conclusions of law shall be deemed sufficientif in substantial compliance withthe form set forth by the judicial council.
(e) As used in this section, a document or instrument is presumed to befraudulent if the document or instrument purports to create a lien or assert aclaim against real or personal property or an interest in real or personalproperty and:
(1) Is not a document or instrument provided for by the constitution or lawsof 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 realor personal property, if required under the laws of this state, or by impliedor express consent or agreement of an agent, fiduciary or other representativeof that person; or
(3) is not an equitable, constructive or other lien imposed by a court withjurisdiction created or established under the constitution or laws of thisstate or of the United States.
(f) As used in this subsection, filing office or filing officer refers to theofficer and office where a document or instrument as described in this sectionis appropriately filed as provided by law, including, but not limited to theregister of deeds, the secretary of state and the district court and filingofficers related thereto.
History: L. 1998, ch. 116, § 1;L. 2000, ch. 142, § 154;L. 2005, ch. 101, § 1; July 1.