40-5-242. Notice of support lien — civil liability upon failure to honor support lien or to comply with warrant for distraint. (1) The department may, at any time after asserting a support lien, serve a notice of the lien on any person, firm, corporation, association, or political subdivision or department of the state in possession of any real or personal property that is due, owing, or belonging to an obligor. For this purpose, personal property includes the obligor’s share of a decedent‘s estate, workers’ compensation benefits, and any proceeds or potential proceeds from suits at law. Except as provided in subsections (1)(a) and (1)(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.

Terms Used In Montana Code 40-5-242

  • Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
  • Child: means :

    (i)a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;

    (ii)a person under 19 years of age and still in high school;

    (iii)a person who is mentally or physically incapacitated if the incapacity began prior to the person's 18th birthday; or

    (iv)in a IV-D case, a person for whom:

    (A)support rights are assigned under 53-2-613;

    (B)a public assistance payment has been made;

    (C)the department is providing support enforcement services under 40-5-203; or

    (D)the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act. See Montana Code 40-5-201

  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Decedent: A deceased person.
  • Department: means the department of public health and human services. See Montana Code 40-5-201
  • Lien: A claim against real or personal property in satisfaction of a debt.
  • Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
  • Obligor: means a person, including an alleged father, who owes a duty of support. See Montana Code 40-5-201
  • Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
  • Personal property: All property that is not real property.
  • Personal property: means money, goods, chattels, things in action, and evidences of debt. See Montana Code 1-1-205
  • Property: means real and personal property. See Montana Code 1-1-205
  • State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201

(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.

(2)Except as provided in subsection (3), a person or entity is liable to the department in an amount equal to 100% of the value of a support lien or warrant for distraint or the value of real or personal property subject to a support lien or distrained by a warrant for distraint, whichever is less, together with costs, interest, and reasonable attorney fees, if the person or entity:

(a)pays over, releases, sells, transfers, or conveys real or personal property subject to a support lien, to or for the benefit of the obligor, after the person or entity receives actual notice of filing of the support lien; or

(b)fails or refuses to surrender upon demand property of an obligor when presented with a warrant for distraint by a sheriff or levying officer under the provisions of 40-5-247.

(3)A person or entity is not liable to the department under this section when:

(a)a written release or waiver of the support lien or warrant for distraint issued by the department has been delivered to the person or entity;

(b)a determination has been made in an adjudicative proceeding, either administrative or judicial, that a support lien does not exist or that the lien has been satisfied; or

(c)the property subject to a support lien has been transferred to, paid over to, or repossessed by a person or entity holding:

(i)a prior perfected lien;

(ii)a mortgage, the proceeds of which were used by the obligor to purchase real property; or

(iii)a perfected purchase money security interest, as described by 30-9A-301.

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