40-5-248. Lien against real and personal property -- effect of lien -- interest -- warrant for distraint.
40-5-248. Lien against real and personal property -- effect of lien -- interest -- warrant for distraint. (1) There is a support lien on the real and personal property of an obligor:
(a) when the department has entered a final decision in a contested case under this chapter that finds the obligor owes a sum certain debt either to the department or to an obligee, or both; or
(b) upon registration under 40-5-906 of a support order that includes finding that the obligor owes a sum certain amount of delinquent support.
(2) A support lien is for the amount required to satisfy:
(a) the sum certain debt shown in a final decision in a contested case under this chapter or the sum certain support debt included in any support order registered under 40-5-906;
(b) interest claimed under this section; and
(c) any fees that may be due under 40-5-210.
(3) A support lien has the priority of a secured creditor from the date the lien is perfected as provided by this section; however, the lien is subordinate to:
(a) any prior perfected lien or security interest;
(b) a mortgage, the proceeds of which are used by an obligor to purchase real property; or
(c) any perfected purchase money security interest, as described in 30-9A-301.
(4) Support liens remain in effect until the delinquency upon which the lien is based is satisfied or until the applicable statute of limitations expires, whichever occurs first.
(5) The lien applies to all real and personal property owned by the obligor if it can be located in the state. The lien applies to all real and personal property that the obligor can afterward acquire. Except as provided in subsections (5)(a) and (5)(b), the department may not impose a lien under this section upon a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1, or upon the assets of a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1.
(a) The department may impose a lien under this section upon a self-sufficiency trust or upon the assets of a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1, if the department is required by federal law to recover or collect from the trust or its assets as a condition of receiving federal financial participation for the child support enforcement program or for temporary assistance for needy families, as defined in 53-4-201.
(b) To the extent otherwise permitted by this section, the department is not precluded from asserting a claim or imposing a lien upon real or personal property prior to transfer of the property to the trust. If the department imposes a lien upon property prior to transfer to a self-sufficiency trust, any transfer of the property to the trust is subject to the lien.
(6) The department shall keep a record of support liens asserted under this section in the registry of support orders established by 40-5-906.
(7) A support lien is perfected:
(a) as to real property, upon filing a notice of support lien with the clerk of the district court in the county or counties in which the real property is or may be located at the time of filing or at any time in the future;
(b) as to motor vehicles or other items for which a certificate of title is issued by the department of justice, upon filing a notice of support lien with the department of justice in accordance with the provisions of Titles 23 and 61;
(c) as to all other personal property, upon filing a notice of support lien in the place required to perfect a security interest under 30-9A-301. The county clerk and recorder or the secretary of state, as appropriate, shall cause the notice of support lien to be marked, held, and indexed as if the notice of support lien were a financing statement within the meaning of the Uniform Commercial Code.
(8) A buyer, in the ordinary course of business, who buys an obligor's personal property for value and who buys in good faith and without knowledge of the support lien takes the property free of the support lien.
(9) (a) The department may charge interest on the support lien at the rate of 1% per month.
(b) Interest accrues at the close of the business day on the last day of each month and is calculated by multiplying the unpaid balance of the lien, including prior accrued interest existing at the end of the day, by the applicable rate of interest.
(c) A provision of this section may not be construed to require the department to maintain interest balance due accounts. The department may waive interest if waiver would facilitate the collection of the debt.
(d) Interest under this subsection (9) is in addition to and not in substitution for any other interest accrued or accruing under any other provision of law.
(10) (a) Upon receiving payment in full of the amount of the lien plus interest and fees, if any, the department shall take all necessary steps to release the support lien.
(b) Upon receiving partial payment of the support lien or if the department determines that a release or partial release of the lien will facilitate the collection of support arrearages, the department may release or partially release the support lien. The department may release the support lien if it determines that the lien is unenforceable.
(11) A support lien under this section is in addition to any other lien created by law.
(12) A support lien under this section may not be discharged in bankruptcy.
(13) Support liens provided for by this section may be enforced or collected through the warrant for distraint provided for by 40-5-247.
History: En. Sec. 25, Ch. 631, L. 1993; amd. Sec. 2, Ch. 262, L. 1997; amd. Sec. 1, Ch. 432, L. 1997; amd. Sec. 150, Ch. 305, L. 1999; amd. Sec. 11, Ch. 352, L. 2001; amd. Sec. 7, Ch. 465, L. 2001; amd. Sec. 40, Ch. 477, L. 2003; amd. Sec. 4, Ch. 564, L. 2005.