Commercial Liens - Ch 6
Chapter 6 - Obstacles and Strategies for Overcoming Them
Refusal to File Liens
There have been instances reported (in California and Ohio, primarily) where county recorders or clerks of court refuse to file Commercial Liens on government officials. Usually, they have been instructed by their (frightened) superiors to do so. One strategy for dealing with this problem (based on the Uniform Commercial Code) is described by David DeReimer as follows:
1. Bring at least two witnesses along to every face-to-face meeting with the clerk, Recorder of Deeds, Sheriff, etc.
2. After the meeting, have your witnesses prepare sworn affidavits of whatever they saw and heard the clerk, official, sheriff, say, do, etc.
3. Get a written explanation or reason from clerk who refuses to record your document.
4. As per your state Uniform Commercial Code section 3-505/501, send a "Notice And Demand For Exhibition Or Presentment Without Dishonor" by certified mail to the office that refused to accept your lien, demanding that they exhibit:
a) The Statute or Law passed by the Legislature which authorizes them to condemn the "Public" records for their personal and private use;
b) Their personal Bar/Lawyer I.D. Number issued by the State Bar or State Supreme Court which authorizes them to make "Legal Determinations"; and,
c) The Statute or Law passed by the Legislature which authorizes them to edit and/or censor documents prior to recording.
Give them reasonable time (30 days) to comply with your DEMAND to prove written authority, and then put them ON NOTICE that the "Law of Principal and Agent" specifies that "The Agent is personally liable for acts not authorized by the Principal." As such, unless there are laws granting the clerk the power to refuse to record certain documents, the clerk/agent has no corporate veil of immunity for his refusals and may be personally vulnerable to a lawsuit.
5. If, after the reasonable time has elapsed, and they have failed to produce the written "authority" you Demanded, send a Notice Of Default by certified mail, noticing them that they have defaulted by not answering. In it, provide them with a "right to cure" their Default by recording your original lien (or other documents) without further interference, or suffer the consequences. Allow 10 to 30 days for their response.
6. If they don’t respond in the 10 to 30 days, send them via certified mail, a "Notice of Amount Due" for the damage caused by their injury to you (or your Property Rights) by their defalcation, dereliction of duty, default, and unauthorized "Refusal to Record" in a sizable amount ($1,000??). Again, give them reasonable time (30 days) to pay you.
7. After the 30 days reasonable time has passed (plus 4 or 5 days for the mail), send them certified mail a "Final Notice of Amount Due" for the damage caused by their injury to you. Again, give them reasonable time (30 days) to pay you the amount of damages you’ve demanded.
8. If they don’t pay your "Final Notice" Demand in 30 days (plus 4 or 5 days for the mail), go to the Country Elected Peace Officer (Sheriff), present copies of the two certified mail Demands for payment, sign a "Distress Warrant" or "Distraint Warrant" stating that you have NOT been paid, and have the Sheriff go get your money or sell the clerk’s assets.
9. If the Sheriff refuses to execute your "Distraint Warrant," inform him that you personally will perform his sworn duty FOR HIM, and on his behalf. Inform him, also, that the newspapers will be informed that he has refused to perform his own sworn duty but continues to cash his pay check, and that this constitutes FRAUD by him since he only performs "Selective Enforcement" of the law — which is unlawful. Inform him that the resultant publicity may have a negative impact on his chances for running for reelection, and that you may have to sue him in his personal capacity for money damages due to his Dereliction of Duty, Defalcation, Embezzlement of Public Funds, and damage due to his injury to you and/or your property rights.
10. Send the Sheriff certified mail a "Notice and Demand For Production or Exhibition Without Dishonor" of the Law or statute that authorizes him to:
a) perform "selective enforcement" of the Law;
b) accept the People’s pay and not execute on lawful Warrants;
c) personally edit and censor documents, or refuse to perform his duty under his sworn oath.
11. If either the Sheriff or the Recorder of Deeds says that they take their "orders" from some government lawyer, get that in writing. After, and only after, you have the above "Admission and Confession" in writing, leave their office. Then perform the previous certified mail step and add item:
d) provide the Statute or Law passed by the Legislature that authorizes them to relinquish their office over to another (whoever — regardless of whether they’re government attorneys or not) while continuing to accept and negotiate (cash) their pay check after having turned over their office to said "other."
Once the clerks, sheriffs, etc. realize their potential liability, it is likely that they will do their duty long before you get to step 11.
Here’s an alternative analysis, which may have a better practical success rate in accomplishing your goal of getting various documents recorded as a matter of public record, in good faith:
In some counties among the thousands of counties in the U.S., you may find recalcitrant clerks who will refuse to file your properly-executed documents. While such clerks are violating their sworn public duty to record and make a matter of public record your properly-executed documents, as a practical matter suing a recalcitrant country clerk usually will be less effective than various alternatives. Your best bet is probably: (1) Be low profile in recording any properly-executed, good-faith documents. Don’t particularly discuss the contents of the documents you’re filing with the clerk. You’re not trying to hide anything — after all, you’re making a matter of public record various statements you are affirming the truth of, in good faith. But attracting undue attention may impede the progress of anything you may wish to make a matter of public record. (2) If you do run into a recalcitrant clerk who doesn’t like what you’re doing, simply try another county, or try the same county on a different occasion. This fits very well with our strategy of "creating your own creative alternatives" when confronted with certain bureaucratic obstacles. If you try another county, remember that for some types of documents there may be a requirement that property that’s a "subject" of the documents may have to be located in the county of recording. (3) You could as a different alternative try using appropriate media publications to make your documents a matter of public record (by "publishing the document"). You’ll need to research the particulars of how to do this in your area, if you use this option. But finding a county clerk that does their job routinely and properly is probably lower-profile.
Abuse of Judicial Power
There have been cases reported of judges who have threatened to jail lienors for "contempt of court" if they do not "voluntarily" lift their liens. In two cases, the judges actually carried out their threat. Such legal coercion on their part is almost certainly unlawful. Nonetheless, some judges will use that tactic, if they think the lienor is vulnerable. To deal with this problem, it is helpful to remember the following:
1. The only reason the judge is making that threat is because he has no lawful means of extinguishing the lien. It is a move of fear and desperation.
2. Assess your own vulnerability. Will a few days in jail seriously affect your life? If not, you have some psychological leverage. Otherwise, the judge has a lever over you.
3. If your lien does end up in court, you may want to have a lawyer or a talented pro se with you, so that somebody can file an effective writ of habeas corpus, if necessary. Also, you may wish to learn how to effectively defend yourself against contempt charges.
4. If the judge actually does imprison you on a bogus contempt charge, he becomes personally liable for civil damages under Title 42 USC §1983 (or state equivalent), criminal sanctions, and a commercial lien. The judge is taking a risk by violating your rights. He is probably hoping that you don’t know how to pursue an effective legal remedy. In many ways, this is a game of "chicken."