Commercial Liens - Ch 5
Chapter 5 - Mistakes and Pitfalls to Avoid
Defective Legal Form and Procedure
When filing any lien, it is important to follow the legal forms and procedures of your state or locality. Study the statutes for the locality in which you are filing, and follow those forms and procedures religiously. Failure to do so can have serious consequences.
First, you may be civilly liable for "slander of title." In some jurisdictions (notably Louisiana) this is called "jactitation," and a suit to remove the "cloud of title" and recover damages is known as an "action of jactitation."
Even worse, in many jurisdictions, someone who files liens in bad faith, or who uses defective forms or procedures, can be convicted of "felony slander of title." An example of the possible repercussions is shown in the following newspaper article:
Headline on March 3, 1993, front page of the San Luis Obispo Telegram Tribune: "Bogus Lien Filer Convicted."
"When Sheriff Williams tried . . . to refinance his . . . home . . . a routine check of county records . . . showed someone had placed a $100,000 lien on the home . . . The lien was filed by ‘Steven K. Jones, whom Sheriff Williams had never seen,’ until they met in court on the issue of the lien.
"Jones defended himself without a lawyer against charges he filed the bogus liens against property owned by Sheriff Williams and six others . . . who were involved in the sale of his truck . . . conducted by the Sheriff’s Department to collect a portion of the $22,000 in back taxes the Franchise Tax Board says Jones owes.
"Liens were also placed on property owned by the towing service operator who seized the truck and on the man who bought the truck at the tax auction. Jones later placed that man under citizen’s arrest for theft of this truck.
"Jones is one of what law enforcement authorities believe is a loosely affiliated group of county residents who call themselves common law citizens — people who take extraordinary steps to disavow government control in their lives. Jones has a notarized document renouncing his citizenship . . . has taken steps to void his birth certificate . . . relinquished his drivers license and social security number . . . and closed his bank account because the bank card, he believes, gives the bank power of attorney.
"Jones’s two sons, 13 and 12, sat with his wife throughout the week-long trial. They are taught at home and don’t attend school . . . ‘I have two small children who I want to see grow up . . . and not be slaves to the government,’ he told the jury.
"But the prosecuting attorney said Jones went too far when he filed official looking documents [the liens] for a $17 filing fee. According to the prosecutor, the documents were ‘just garbage.’
"What Jones did is hardly a prank. Liens are a ‘ticking time bomb,’ said one expert on real estate law. ‘The victim doesn’t even know it exists. Once a lien is recorded, it remains on the books forever. Having a lien nullified — even one that’s fraudulent — requires a court order. That process likely involves hiring an attorney and could take anywhere from months to years.’
"A jury convicted Jones on two felony charges after deliberating less than a hour. The maximum punishment is three years in prison on each count and a $75,000 fine.
"Outside the courtroom, Jones admitted that recording the liens was a mistake. He couldn’t tell the jury, Jones confided, but he regrets what he did and blames advice from a Sacramento-based anti-tax organization . . . which he paid $3,200 to join. He used documents supplied by the anti-tax organizations to file the liens." [Emphasis added]
Evidently, Jones did not substantiate his liens with a "true bill in commerce," nor did he serve the sheriff, et al, with the proper Notice and Demand (commercial grace). The prosecuting attorney used both of these facts as evidence of bad faith, and easily obtained a conviction. Let that experience be a lesson to others! Don’t use this material unless you are very sure you know what you’re doing. Any actual results are your own responsibility. The procedures discussed in this manual are not to be used "for fun." Consider them to be "of academic interest only" if you’re less than fully sure, in good faith, of what you’re doing. You, and you alone, are fully responsible for any results that might arise from any actual use of these materials. We specifically disclaim any such responsibility.
"Hanson-type" or "Nebulous" Liens
In the 1970’s, a man named Gerald Hanson started filing liens on various government officials whom he regarded as corrupt. According to Hartford Van Dyke, a current exponent of the Commercial Lien Strategy, Hanson’s liens were "nebulous." Apparently, Hanson did not connect the officials’ misconduct with any specific monetary damages suffered by him. (In other words, they were not true bills in commerce. Therefore, judges ruled that these liens were Lis Pendens Liens, rendering them subject to equity proceedings. That, of course, defeats the entire purpose of the commercial lien strategy.
A lien seems more likely to stand if a specific official violated her/his oath of office, resulting in specific and identifiable damages to you. "Hanson-type" liens and "class action liens" (such as Phil Marsh’s) stand on a shakier foundation.
Aiming Too High
Many proponents of the Commercial Lien Strategy have filed liens (like Phil Marsh’s) upon the President of the United States, the Secretary of the Treasury, state governors and the like. Whether or not such liens are legally accurate, they create a credibility problem. First of all, did the President (for example) damage you by his specific actions? If not, your lien has a weak foundation. Second, if you file such a lien, you may temporarily get the attention of the public official (and some headlines) but you ultimately risk looking like a "crank."
Rather than aiming to win "big," you may be more effective filing $10,000 or $100,000 liens on minor officials (like IRS agents) who have less public sympathy, and are easier targets. Judges and sheriffs are more difficult, but not impossible. In the case of a judge or a sheriff, it may be advisable to give more Notices of Demand than you technically have to. This shows "good faith," and gives the other party a chance to correct the fault.
Beware of "Exotic" Arguments
Another "double-edged sword" is the insertion of books like Silent Weapons for Quiet Wars as evidence for a lien or a suit. The question here is not one of merit, but effectiveness. Can you win with such evidence? The answer is, "it depends."
Dr. Gene Schroeder, of the American Agricultural Movement, appealed a case last year, in which he submitted evidence that the Federal court’s Admiralty jurisdiction was obtained by a written declaration of war upon the American people, enacted by Congress March 9, 1933 (48 Stat. 1). He states that two Federal judges involved with the case resigned ("retired") shortly after the appeal was over. So, yes, it can work.
However, the risk of this approach is obvious. Unless your evidence is very strong, and you (or your lawyer) have superb presentation and speaking skills, you risk looking like a "mental case" if your action ever comes in front of a jury.
The key here may not be legal, but psychological. You need to have an accurate measure of your opposition. If your "exotic" evidence is strong, and you can scare off the prosecutor with an "embarrassing issue," then it may be effective. However, if your opponent is psychologically more secure, that may not work. To put it another way, what you can frighten a prosecutor or a judge with is one matter, but what you can convince "twelve people in a jury box" to believe may be quite another!
Before you use such evidence (either in a lien or in court) you should take an honest inventory of yourself. Do you have the psychological acumen, the strategic thinking skills and the rational courage (which does not cross the line into recklessness) to effectively use this evidence? If so, well and good. If not, you may wish to use more conservative strategies.
"Know yourself, and know your enemy, and in a thousand battles you will never be in peril" — Sun-tzu, The Art of War