How Can I Get a Wrongful Lien Removed if the Judgment Debtor Doesn't Own the Property?
Full Question:
Answer:
The answer depends on the type of lien filed and whether the debtor has an ownership interest in the church property. You appear to describe a judgment lien, rather than a mechanics lien, In such a case, the debtor may pay the debt to release the lien or otherwise it may be necessary to petition the court to release the lien according to the statutes below.
If it is a mechanics lien for money owed due to improvements to real property, the easiest way to have it removed it to have the contractor filed a release of lie. A reminder that fines apply for an improperly filed lien may be helpful.
If the debtor has no ownership interest in the church property, please see the following CA statute:
697.410. (a) If a recorded abstract of a money judgment or
certified copy of a money judgment appears to create a judgment lien
on real property of a person who is not the judgment debtor because
the name of the property owner is the same as or similar to that of
the judgment debtor, the erroneously identified property owner may
deliver to the judgment creditor a written demand for a recordable
document releasing the lien. The demand shall be accompanied by proof
to the satisfaction of the judgment creditor that the property owner
is not the judgment debtor and that the property is not subject to
enforcement of the judgment against the judgment debtor.
(b) Within 15 days after receipt of the property owner's demand
and proof satisfactory to the judgment creditor that the property
owner is not the judgment debtor and that the property is not subject
to enforcement of the judgment, the judgment creditor shall deliver
to the property owner a recordable document releasing the lien on the
property of such owner. If the judgment creditor improperly fails to
deliver a recordable document releasing the lien within the time
allowed, the judgment creditor is liable to the property owner for
all damages sustained by reason of such failure and shall also
forfeit one hundred dollars ($100) to the property owner.
(c) If the judgment creditor does not deliver a recordable
document pursuant to subdivision (b), the property owner may apply to
the court on noticed motion for an order releasing the judgment lien
on the property of such owner. Notice of motion shall be served on
the judgment creditor. Service shall be made personally or by mail.
Upon presentation of evidence to the satisfaction of the court that
the property owner is not the judgment debtor and that the property
is not subject to enforcement of the judgment, the court shall order
the judgment creditor to prepare and deliver a recordable document
releasing the lien or shall itself order the release of the judgment
lien on the property of such owner. The court order may be recorded
in the office of the county recorder with the same effect as the
recordable document demanded by the property owner.
(d) The court shall award reasonable attorney's fees to the
prevailing party in any proceeding maintained pursuant to this
section.
(e) The damages provided by this section are not in derogation of
any other damages or penalties to which an aggrieved person may be
entitled by law.
Please see also the following CA statutes:
3143. If the owner of property, or the owner of any interest
therein, sought to be charged with a claim of lien, or any original
contractor or subcontractor disputes the correctness or validity of
any claim of lien, he may record in the office of the county recorder
in which such claim of lien was recorded, either before or after the
commencement of an action to enforce such claim of lien, a bond
executed by a corporation authorized to issue surety bonds in the
State of California, in a penal sum equal to 1 1/2 times the amount
of the claim or 1 1/2 times the amount allocated in the claim of lien
to the parcel or parcels of real property sought to be released,
which bond shall be conditioned for the payment of any sum which the
claimant may recover on the claim together with his cost of suit in
the action, if he recovers therein. Upon the recording of such bond
the real property described in such bond is released from the lien
and from any action brought to foreclose such lien. The principal
upon such bond may be either the owner of the property or the owner
of any interest therein, or any original contractor, subcontractor,
or sub-subcontractor affected by such claim of lien.
116.850. (a) If full payment of the judgment is made to the
judgment creditor or to the judgment creditor's assignee of record,
then immediately upon receipt of payment, the judgment creditor or
assignee shall file with the clerk of the court an acknowledgment of
satisfaction of the judgment.
(b) Any judgment creditor or assignee of record who, after
receiving full payment of the judgment and written demand by the
judgment debtor, fails without good cause to execute and file an
acknowledgment of satisfaction of the judgment with the clerk of the
court in which the judgment is entered within 14 days after receiving
the request, is liable to the judgment debtor or the judgment debtor'
s grantees or heirs for all damages sustained by reason of the
failure and, in addition, the sum of fifty dollars ($50).
(c) The clerk of the court shall enter a satisfaction of judgment
at the request of the judgment debtor if the judgment debtor either
(1) establishes a rebuttable presumption of full payment under
subdivision (d), or (2) establishes a rebuttable presumption of
partial payment under subdivision (d) and complies with subdivision
(c) of Section 116.860.
(d) A rebuttable presumption of full or partial payment of the
judgment, whichever is applicable, is created if the judgment debtor
files both of the following with the clerk of the court in which the
judgment was entered:
(1) Either a canceled check or money order for the full or partial
amount of the judgment written by the judgment debtor after judgment
and made payable to and endorsed by the judgment creditor, or a cash
receipt for the full or partial amount of the judgment written by
the judgment debtor after judgment and signed by the judgment
creditor.
(2) A declaration stating that (A) the judgment debtor has made
full or partial payment of the judgment including accrued interest
and costs; (B) the judgment creditor has been requested to file an
acknowledgment of satisfaction of the judgment and refuses to do so,
or refuses to accept subsequent payments, or the present address of
the judgment creditor is unknown; and (C) the documents identified in
and accompanying the declaration constitute evidence of the judgment
creditor's receipt of full or partial payment.
699.060. (a) The levying officer shall release property levied
upon when the levying officer receives a written direction to release
the property from the judgment creditor's attorney of record or, if
the judgment creditor does not have an attorney of record, from the
judgment creditor or when the levying officer receives a certified
copy of a court order for release or when otherwise required to
release the property. The release extinguishes any execution lien or
attachment lien in favor of the judgment creditor on the property
released.
(b) If the property to be released has been taken into custody
under the levy, it shall be released to the person from whom it was
taken unless otherwise ordered by the court. If the person does not
claim the property to be released, the levying officer shall retain
custody of the property and shall serve on such person a notice of
where possession of the property may be obtained. Service shall be
made personally or by mail. If the person does not claim the property
within 30 days after the notice is served, the levying officer shall
sell the property (other than cash which does not have a value
exceeding its face value) in the manner provided by Article 6
(commencing with Section 701.510). The levying officer shall deposit
the proceeds of sale and cash, after first deducting the levying
officer's costs, with the county treasurer of the county where the
property is located, payable to the order of the person. If the
amount deposited is not claimed by the person, or the legal
representative of the person, within five years after the deposit is
made, by making application to the treasurer or other official
designated by the county, it shall be paid into the general fund of
the county.
(c) If the property to be released has not been taken into custody
under the levy, the levying officer shall release the property by
issuing a written notice of release and serving it on the person who
was served with a copy of the writ and a notice of levy to create the
lien. Service shall be made personally or by mail.
(d) If the property to be released was levied upon by recording or
filing a copy of the writ and a notice of levy, the levying officer
shall record or file a written notice of release in the same office.
(e) The levying officer is not liable for releasing property in
accordance with this section nor is any other person liable for
acting in conformity with the release.
720.610. A third person may give an undertaking to release property
pursuant to this chapter in the following cases:
(a) Where the third person claims ownership or the right to
possession of real property that has been levied upon under a writ of
attachment or a writ of execution.
(b) Where the third person claims ownership or the right to
possession of personal property that has been levied upon under a
writ of attachment, a writ of execution, or a writ of sale.
(c) Where the third person claims a security interest in or a lien
on personal property that has been levied upon under a writ of
attachment, a writ of execution, or a writ of sale.
720.620. The third person shall file the undertaking to release
property with the levying officer, together with two copies of the
undertaking:
(a) At the time the third person files a third-party claim
pursuant to Chapter 2 (commencing with Section 720.110) or Chapter 3
(commencing with Section 720.210).
(b) If the third person has previously filed a third-party claim
to the property, at any time before the levying officer does any of
the following:
(1) Sells the property.
(2) Delivers possession of the property to the creditor.
(3) Pays proceeds of collection to the creditor.
720.630. (a) The undertaking to release property shall contain a
description of the property to be released and shall describe the
interest of the third person.
(b) The undertaking shall be made in favor of the creditor and
shall provide that, if the debtor is finally adjudged to have an
interest in the property levied upon, the third person shall pay to
the creditor the lesser of the following:
(1) The amount required to satisfy the judgment against the debtor
of the creditor who had the lien on the property.
(2) A sum equal to the market value of the debtor's interest in
the property levied upon.
(c) Except as provided in subdivision (d) and unless the third
person elects to file an undertaking in a larger amount, the amount
of the undertaking shall be the lesser of the following amounts:
(1) Twice the market value of the property sought to be released.
(2) Twice the amount of the creditor's lien on the property sought
to be released.
(d) If the creditor has given an undertaking in response to the
third person's claim regarding the property pursuant to Section
720.160 or 720.260, the third person's undertaking shall be in the
amount of the creditor's undertaking.
720.640. (a) If the undertaking to release property is filed with
the levying officer at the time the third-party claim is filed, the
levying officer shall serve a copy of the undertaking on the creditor
and on the debtor with the notice of the filing of the third-party
claim served pursuant to Section 720.140 or 720.240.
(b) If the undertaking to release property is filed with the
levying officer after the third-party claim is filed, not later than
five days after the undertaking is filed, the levying officer shall
serve a copy of the undertaking on the creditor and on the debtor
with a notice that the property will be released unless, within the
time allowed as specified in the notice, the creditor objects to the
undertaking. Service shall be made personally or by mail.
720.650. The third person's undertaking becomes effective when the
property described therein is released pursuant to this chapter.
720.660. The levying officer shall release the property described
in the third person's undertaking in the manner provided by Section
720.170 promptly after the expiration of the time allowed for
objecting to the undertaking, unless the creditor has objected to the
undertaking, and filed with the levying officer a copy of the notice
of motion as required by Section 720.760, prior to the expiration of
that time.
See also:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=720.110-720.170
