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Bar Journal - Fall 2005

BOGUS LIENS IN NEW HAMPSHIRE: Proposed Remedies and Deterrents

By:


Introduction

           

So you just lost your divorce case.  You lost custody of your children and you feel you were taken advantage of in the process.  What do you do now?  Well, if you are Ghislain Breton you file fictitious UCC liens against your attorney, your ex-wife’s attorney, the attorney representing your children, and the person assigned to oversee your child support.1 

           

Breton claimed he had a common law copyright on his name and could charge people $500,000 every time they used his name.2  This process, for which there is no legal foundation, is called “redemption” and is from a book called Cracking the Code.3  Breton’s liens are bogus for at least two reasons.  First, he cannot claim a common law copyright on his name.  Copyright laws protect “original works of authorship fixed in any tangible medium of expression.”4  According to Nimmer on Copyrights, a persona, a person’s name and likeness, are not “original works of authorship” and cannot be copyrighted, even if “embodied in a copyrightable work.”5  Second, the UCC registry is for consensual liens, court ordered attachments, and certain other statutory liens. 

           

Breton was eventually charged with improper influence, witness tampering and obstruction of government for filing the liens against Judith Roman (who represented Breton’s children during the divorce) and Rafila Stoi (who was in charge of overseeing his child support).6  At trial Breton was found guilty.7  He was sentenced to 18 months in jail with three other sentences being suspended.8 

           

But for Breton this was not good enough.  An associate of his sent the judge and prosecutors letters threatening them with liens.9  When given a chance to lessen the blow Breton was to receive for the latest batch of threatening letters, he told the court he was committed to his cause.10  This led to an additional six-month jail sentence for Breton.11 

           

The Uniform Commercial Code is meant to facilitate commercial transactions.12  This system allows a lender to easily secure its interest in piece of property through a UCC-1 filing without having to get a judge’s order to perfect its interest.  A UCC-1 is the financing statement form used by UCC filing offices nationwide.  The UCC-1 contains both the debtor’s and creditor’s names and lists the collateral covered by any security agreement to which the parties have agreed.13  Problems occur when incorrect UCC-1 statements are filed. 

           

Although Breton was eventually stopped and punished, the method for prosecuting him was indirect.  Breton was convicted of filing liens against only the public officials, not the private individuals involved in the case.14  The targets of bogus liens must still have them removed at their own expense. Clearly, New Hampshire’s current laws in this area are inadequate. 

           

This article explores options that other states have implemented, and advocates the adoption in New Hampshire of  a system allowing victims of bogus liens to remove them quickly and cheaply and punishes those that try to abuse a system meant to facilitate commerce. 

 

New Hampshire’s Current Law

           

The cost to a victim of a bogus lien can be high.  Removing a bogus lien from the registry requires a court order, which typically entails legal expenses. Under current New Hampshire law, the registry clerk must accept an apparently bogus UCC-1, even if they know it is bogus.15  There are only a few specified reasons why a UCC-1 may be refused (See N.H. R.S.A. § 382-A:9-516(b).)  The permitted reasons for refusal relate to improper form and inadequate filing fees.16 

           

There are three options for the victims of bogus liens in New Hampshire.  Victims can file a correction statement; file a civil suit for damages; or file a civil suit to cancel the statement.  A correction statement can be filed under N.H. R.S.A. § 382-A:9-518.  But this correction statement does nothing to “affect the effectiveness” of the originally filed UCC-1 statement.17 

           

There is some relief for the victims of bogus liens found in N.H. R.S.A. § 382-A:9-529.  This statue defines a fraudulent filing as a financing statement “intentionally or knowingly” filed and not authorized under either RSA §§ 382-A:9-509 or 9-708; or the “financing statement contains a material false statement;” or the “financing statement is groundless.”18  If the filing is found to be fraudulent the victim can receive damages of $5,000 (or actual damages whichever is greater), court costs and “reasonable attorney’s fees.”19 

           

While receiving $5,000, court costs and attorney’s fee may seem like a suitable remedy to the problem, it is not.  This remedy involves filing suit in court to ask for the release or cancellation of the fraudulent financing statement.20  This is a potentially expensive and burdensome remedy for the victims of bogus liens.  If the person filing the lien is effectively judgment proof, due to a lack of assets, a $5,000 award against them means little.       

           

Even the authors of the Uniform Commercial Code realized the shortcomings in the code’s ability to prevent bogus lien filings.  Official Comment 3 to U.C.C. 9-518 states that the article “cannot provide a satisfactory or complete solution to problems caused by misuse of public records.”  The official Comment suggests that a summary judicial procedure and criminal penalties for abusers of the filing system are “likely more effective” and less of a strain on the filing system than requiring the recording office to act on bogus liens.21  A victim of a bogus lien can file suit to remove the lien under N.H. R.S.A. § 382-A:9-529(c).  But as mentioned above, filing suit is a potentially expensive and burdensome process. 

 

Other states

           

The problem of bogus liens is by no means new.  Unfortunately there are examples of people and groups filing bogus liens for various reasons all across the country. 

           

During the late 1990’s in Texas, the “Republic of Texas,” a group who feels Texas was illegally annexed to the United States in 1845, filed numerous liens with Texas clerks.22  Around the same time as The Republic of Texas was creating problems, a convicted drug dealer in Pennsylvania filed bogus liens against the judge who presided over his trial, the prosecutor, and his defense attorney.23  Recently in New York two separate men, one a convicted federal inmate and the other accused of cocaine possession, filed liens claiming a copyright on their names against judges and prosecutors.24  In Utah a group calling themselves the Wampanoag Indian tribe (having nothing to do with the Wampanoag Tribe from Connecticut) has filed multimillion-dollar liens against government officials.25 

           

States have devised different solutions to combat bogus lien filings.  These solutions range from simple fines to jail time or a combination of both. 

 

            Texas

           

Texas has adopted Texas Bus. & Com. Code Ann. § 9.5185 (2002).  This statute is similar to N.H. R.S.A.-A:9-529 with two exceptions.  First the similarities: Texas Bus. & Com. Code Ann. § 9.5185(a), like its New Hampshire counterpart N.H. R.S.A.-A:9-529(a), provides a similar definition of a fraudulent financing statement.  Also, both statutes provide for a correction statement, a suit to cancel the lien, and an action for damages.26 

           

There is one minor difference between the New Hampshire and Texas remedy provisions.27  The Texas statute provides for “reasonable attorney’s fees and costs of court assessed against the person who filed the fraudulent financing statement” in both the cancellation suit and the fraud suit.28  New Hampshire’s comparable cancellation suit provision does not mention the recovery of attorney’s fees.29  The Texas statute allows direct reimbursement to the victim for the cost of removing the lien. 

           

The most striking difference between the New Hampshire and Texas statutes is found in Texas Bus. & Com. Code Ann. § 9.5185(c).  Paragraph (c) provides for criminal penalties, under the Texas Penal Code for those who file fraudulent financing statements.  The Texas Penal Code makes filing a fraudulent financing statement a felony if the filed documents were forged and a Class A misdemeanor if the filed documents “contain material false statements” or are groundless.30  If the papers are filed with the purpose to defraud or harm others, the Class A misdemeanor becomes a “state jail felony.” 

           

In Texas a Class A misdemeanor can be punished by a $4,000 fine and/or a jail term of less than one year.31  A “state jail felony” involves a jail term of 180 days to two years and a possible fine of up to $10,000.32 

 

            Pennsylvania

           

Pennsylvania has taken a different approach to counter fraudulently filed liens.  Pennsylvania’s approach is outlined in an article written in 2001 concerning ending the requirement of a debtor’s signature on the UCC-1 form.33  The article also compares the Pennsylvania and Texas statutes.34 

           

Pennsylvania’s solution is found in its version of U.C.C. 9-518, 13 PA. Cons. Stat. § 9518 (2003).   13 PA. Cons. Stat. § 9518(a)–(b) are similar to N.H. R.S.A. § 382-A:9-518(a)-(b).35  It provides the minimum information needed to file a correction statement contesting a filed lien.  This is where the similarities end. 

           

N.H. R.S.A. § 382-A:9-518(c) states: “The filing of a correction statement does not affect the effectiveness of an initial financing statement or other filed record.”  Pennsylvania’s version of paragraph c contains the same language but it goes further, allowing for a correction statement that actually does “affect the effectiveness” of the financing statement to be filed after an administrative hearing (detailed in paragraph d) is conducted.36  The statute allows for two different levels of hearing and correction statements.   

           

The first level is an administrative hearing conducted by the Pennsylvania Department of State.37  The statement is determined to be fraudulently filed if the department deems the filer to have “no rational basis” to file the financing statement under 13 PA Cons. Statute § 9509 (2003), their version of N.H. R.S.A. § 382-A:9-509, and the document was filed “with intent to annoy, harass or harm the debtor.”38  If the department of state determines a financing statement to be fraudulent and no appeal from the creditor is filed, a correction statement is filed stating that the financing statement was found to be fraudulent and may be ineffective with the reasons for the determination.39  This correction statement “creates a rebuttable presumption that the initial financing statement found to be fraudulently filed is ineffective.”40 

           

The second level occurs if the creditor appeals the department of state’s determination.   The hearing is moved to Pennsylvania’s Commonwealth Court.41  If the court affirms the department’s determination, a correction statement is filed stating that the financing statement was found to be fraudulent and is ineffective and the reasons for the decision.42  When the department of state files this judicial correction statement it will refer the matter to the Attorney General’s office for criminal prosecution.43  The criminal charge the statute allows for is defined in 18 PA. Cons. Stat. § 4911 (1983), Tampering with public records or information. 

           

Tampering with public records or information is punishable by a second-degree misdemeanor or third-degree felony, if the filing is meant to defraud or injure.44  In Pennsylvania, a second-degree misdemeanor is punishable by up to two years’ imprisonment.45  A third-degree felony can bring sentences of “not more than seven years”.46  

 

            Utah

           

In Utah,  S.B. 47 was signed into law March 11, 2005.47  This law, entitled Wrongful Lien Offenses, provides injunctive relief to victims and criminal penalties for fraudulent filers.48  The law defines the “crime of wrongful lien” as the filing of a lien by “having no objectively reasonable basis to believe he has a present and lawful property interest in the property or a claim on the assets” or “if the person files the lien in violation of a civil wrongful lien injunction.”49

           

This new law provides for an ex-parte hearing by a court to nullify the lien.50  If the “ex-parte civil wrongful lien injunction” is granted, the filer of the lien is prohibited from filing liens without court permission.51  Once the ex-parte injunction is issued, the fraudulent filer will have 10 days to contest the ruling.52 If the ruling is not contested, the ex-parte injunction becomes a “civil wrongful lien injunction” and will be effective for three years.53  The new law will also allow an aggrieved party to recover attorney’s fees.54

           

Utah’s new law assesses serious criminal penalties for filing wrongful liens.  The filer of a wrongful lien can be charged with a third- degree felony. If the filer has previously been convicted of the same offense, it becomes a second-degree felony.55  In Utah third-degree felonies can bring penalties as high as five years and second-degree felonies can bring penalties as high as 15 years.56 

 

Searching for a Solution

           

While bogus liens in New Hampshire may not have reached the problem level that Texas experienced in the 1990’s, we should not wait until it does.  If an effective solution is in place before bogus liens become a widespread problem, they can be dealt with swiftly when, and if they ever do. 

           

Any solution to the problem of bogus lien filings should meet two key goals.  First, victims should be allowed to contest and correct liens easily and inexpensively  Second, the person filing the bogus liens should be deterred from filing bogus liens again.  The statutes from Texas, Pennsylvania, and Utah serve as different examples New Hampshire could use as a guide in adopting a system of its own. 

           

Of the two goals, criminalizing the actions of bogus lien fliers involves the least amount of work.  Since Texas Bus. & Com. Code Ann. § 9.5185 is very similar to the existing New Hampshire statue RSA § 382-A:9-529, Texas’ solution is possibly the simplest solution for New Hampshire.  It would involve amending RSA § 382-A:9-529 to include a reference to another statue providing for criminal sanctions for filing bogus liens.  And it would necessitate the passage of a statute that would criminalize the filing of bogus liens.57  Passing a law that specifically criminalizes fraudulent lien filing would provide for a clear and direct means of prosecuting abusers of the public records system. 

           

The states vary in their treatment of bogus lien filers.  Utah has the harshest penalties by making the offense a felony.  Pennsylvania and Texas both make the offense a misdemeanor with the punishment increasing to a felony if the case merits.  The penalties in the Utah law may be too harsh for first-time offenders.  A misdemeanor, with felony punishment for egregious acts and repeat offenders, may be more desirable since it gives prosecutors and judges more flexibility in disciplining filers.  Not every person who files a bogus lien may understand the ramifications of their actions.  The filer could also be deceived by others who may have agendas that the filer himself may not share or understand.58  But when people are determined to cause grief to others by using the public records system, harsher penalties may eventually be necessary.  A new criminal statute would provide for a direct criminal prosecution, but it does not solve the most important problem – getting the lien off the public record. 

           

Both the Utah and Pennsylvania systems allow for a process for removing bogus liens (or at the least, adding a government-filed correction statements to the record).  Each system has its benefits.  A system that is administrative in nature, such as Pennsylvania’s, may allow more non-lawyer victims to represent themselves in actions.  While the Utah system does not have an administrative law component, it does start with an ex-parte hearing to declare the liens invalid.  A non-lawyer who is the victim of a lien may not feel comfortable appearing before a judge to have the liens removed.  This could necessitate the hiring of a lawyer and could be expensive.  But since the Utah system begins with an injunction, it helps prevent malicious filers from repeatedly harassing individuals through the record system.  Either system is better than New Hampshire’s current system of making a victim file suit in court to get the lien removed. 

 

Conclusion

           

New Hampshire should look for a solution that contains the following a process for removal of bogus liens (judicial or administrative and criminal penalties starting with misdemeanor sanctions increasing to felonies for repeat offenders and those who cause a great deal of damage due to the bogus filing.)  Bogus liens are not a widespread problem yet.  This is precisely why the time to act is now.  If and when bogus liens ever become a problem, New Hampshire will have a working system in place to deal with them.

 

Endnotes

1.         Annmarie Timmins, Bitter Divorce Case Ensnares State Judges, Lawyers, Concord Monitor, Nov. 7, 2004, at A1. 

2.         Id.

3.         Id; See also www.securedparty.org. (this Web site offers the book for sale and contains an overview of the beliefs of the followers of the book). 

4.         17 USC 102 (a). 

5.         1-1 Nimmer on Copyright § 1.01 [B][1][c] (2005).

6.         Annmarie Timmins, Bitter Divorce Case Ensnares State Judges, Lawyers, Concord Monitor, Nov. 7, 2004, at A1.

7.         Id.

8.         Id.

9.         Id.

10.       Annmarie Timmins, More Jail Time Likely for Man Who Filed Liens, Concord Monitor, Nov. 20, 2004, at ??. 

11.        Annmarie Timmins, Man Jailed for Alleged AG Threat, Concord Monitor, Nov. 25, 2004, at ??. 

12.        U.C.C. § 1-103(a) (stating that “its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.”).

13.        N.H. R.S.A. § 382-A:9-521(a); the form can be found at http://www.sos.nh.gov/ucc/forms2.htm.  

14.        State v. Breton, 04-S-314 (Merrimack County Super. Ct. Oct. 4, 2004); State v. Breton, 04-S-320 (Merrimack County Super. Ct. Nov. 22, 2004). 

15.        N.H. R.S.A. § 382-A:9-520(a) provides that “A filing office shall refuse to accept a record for filing for a reason set forth in Section 9-516(b) and may refuse to accept a record for filing only for a reason set forth in Section 9-516(b).”

16.        N.H. R.S.A. § 382-A:9-516(b).

17.        N.H. R.S.A. § 382-A:9-518 (c) Record not affected by correction statement. The filing of a correction statement does not affect the effectiveness of an initial financing statement or other filed record.

18.        N.H. R.S.A. § 382-A:9-529

19.        Id. at (a) RSA 382-A9-529 (a)-(b). 

20.        Id.

21.        U.C.C. § 9-518, official comment 3.  

22.        Peggy Fikac, Judge Stops Republic of Texas From Filing Bogus Property Liens, Houston Chronicle, July 10, 1996, at 17.

23.        Cindy Stauffer, Judge Target of Inmate’s Bogus Lien, Lancaster New Era, May 3, 1997, at A1. 

24.        United States v. Orrego, 54 U.C.C. Rep. Serv. 2d (Callaghan) 145 (D.N.Y., 2004). 

25.        Geoffrey Fattah, Senator Targets Abuse of Liens, Deseret Morning News, Jan. 26, 2005, at B6. 

26.        Compare Texas Bus. & Com. Code Ann. § 9.5185(b) with N.H. R.S.A. 382-A:9-529(b). 

27.        Compare Texas Bus. & Com. Code Ann. § 9.5185(d) with N.H. R.S.A. 382-A9-529(c).

28.        Texas Bus. & Com. Code Ann. § 9.5185(d). 

29.        Compare Texas Bus. & Com. Code Ann. § 9.5185(d) with 382-A:9-529(c). 

30.        Tex. Penal Code §37.101 (b). 

31.        Barry P. Helft & John M. Schmolesky, Texas Criminal Practice Guide 5-120 (Frank Maloney & Marvin O. Teague eds.) available on http://www.lexis.com.

32.        Id.

33.        Juliet M. Moringiello, Revised Article 9, Liens from the Fringe, and Why Sometimes Signatures Don’t Matter, 10 Widener J. Pub. L. 135 (2001). 

34.        Id. at 157-159.   

35.        Compare 13 PA. Cons. Stat. §9518(a)-(b) (2003) with N.H. R.S.A. 382-A:9-518(a)-(b).  

36.        13 PA. Cons. Stat. § 9518 (c).

37.        13 PA. Cons. Stat. § 9518 (d)(1).

38.        13 PA. Cons. Stat. § 9518 (d)(1)(i); Recently the New Hampshire Supreme Court struck down a statute criminalizing the making of a telephone call with the purpose to annoy or alarm another, as facially overbroad.  State v. Brobst, 857 A.2d 1253 (N.H. 2004).  The Court was concerned that NH RSA 644:4, I(a) would not only criminalized threatening phone calls but also legitimate calls that may annoy or alarm individuals, like calls from bill collectors.  Id. at 1257.  My proposal differs from NH RSA 644:4, I(a) because it only covers illegitimately filed bogus liens, that by their vary nature cannot have a purpose other that to harass or annoy the victim.

39.        13 PA. Cons. Stat. § 9518 (d)(1)(ii); Moringiello at 158.   

40.        13 PA. Cons. Stat. § 9518 (d)(1)(iii); Moringiello at 158.   

41.        13 PA. Cons. Stat. § 9518 (d)(1)(v); Moringiello at 159. 

42.        13 PA. Cons. Stat. § 9518 (d)(1)(v); Moringiello at 159.   

43.        13 PA. Cons. Stat. § 9518 (d)(1)(vi). 

44.        18 Pa.C.S. §4911(b). 

45.        18 PA. Cons. Stat. § 106(b)(7) (1998).

46.        18 PA. Cons. Stat. § 106(b)(4) (1998).

47.        S.B. 47 2005 Leg. (UT 2005). 

48.        Id. 

49.        S.B. 47 2005 Leg. (UT 2005) (enacting Utah Code Ann. § 76-6-503.5(2)).

50.        Proposed law 38-9a-202(1).

51.        Proposed law 38-9a-202(2).

52.        Proposed law 38-9a-203.

53.        Proposed law 38-9a-202(3).

54.        Proposed law 38-9a-205(3).

55.        Proposed law 76-6-503.5(3). 

56.        Utah Code Ann. § 76-3-203 (2003).  

57.        New Hampshire has a law, N.H. R.S.A. §641:7, that criminalizes tampering with public records.  It is a misdemeanor if a person “[k]nowingly makes a false entry in…any thing belonging to, received, or kept by the government for information or record….”  It is also a misdemeanor to present anything known to be false to be made part of government records.  This law could serve as an example for a new law criminalizing bogus liens. 

58.        As may be the case with Ghislain Breton, see supra note 1.

Robert KolbRobert Kolb is a third-year student at Pierce Law Center, Concord, New Hampshire.

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