West Virginia Code 38-16-401 – Notice by clerk of fraudulent lien
(a) If a clerk of the county commission has a reasonable basis to believe in good faith that a document or instrument purporting to evidence an invalid nonconsensual common law lien has been filed or recorded or offered for filing or recording, the clerk shall provide a written notice as follows:
Terms Used In West Virginia Code 38-16-401
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: A trustee, executor, or administrator.
- Judgment: includes decrees and orders for the payment of money, or the conveyance or delivery of land or personal property, or some interest therein, or any undertaking, bond or recognizance which has the legal effect of a judgment. See West Virginia Code 2-2-10
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Personal property: All property that is not real property.
- personal property: includes goods, chattels, real and personal, money, credits, investments, and the evidences thereof. See West Virginia Code 2-2-10
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
(1) If the document is a purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of a purported court, the clerk shall provide written notice of the filing, recording, or submission for filing or recording to the stated or last known address of the person against whom the purported judgment, act, order, directive, or process is rendered; or
(2) If the document or instrument purports to create a lien or assert a claim on real or personal property or an interest in real or personal property, provide written notice of the filing, recording, or submission for filing or recording to the stated or last known address of the person named in the document or instrument as the obligor or debtor and to any person named as owning any interest in the real or personal property described in the document or instrument.
(b)(1) If the document is not yet filed or recorded, the clerk shall provide written notice under subsection (a) not later than the second business day after the date that the document is submitted for filing or recording; or
(2) If the document or instrument has been previously filed or recorded, the clerk shall provide written notice under subsection (a) not later than the second business day after the date that the clerk becomes aware that the document or instrument may be fraudulent.
(c) For purposes of this section, a document or instrument is presumed to be fraudulent if:
(1) The document is styled as a judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of a purported court; or
(2) The document or instrument purports to create a lien or security interest or otherwise create a charge against real or personal property and:
(A) It is not a document or instrument provided for by the Constitution or laws of this state or of the United States;
(B) It is not created by implied or express consent or agreement of the alleged obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person; or
(C) It is not an equitable, constructive, or other lien imposed by a court of competent jurisdiction.