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In some states it may be different. EX: Oklahoma
§ 35. Regulation of Lien of Judgment The lien of a judgment is regulated by civil procedure.
Oklahoma statute Title 60. Chapter 17 Section 852 - Owners Association
states “No lien may be placed or mortgage foreclosed unless the homeowner was informed in writing upon joining the owners association of the existence and content of the owners association restrictions and rules, and of the potential for financial liability to the individual owner by joining said owners association.
Title 42. Liens
§ 12. Creation of Lien Does Not Imply Person Bound to Perform Act
§ 6. Creation of Liens states that a lien is created by contract of the parties.
O.S. §, 12 706 Creation of Lien. A judgment shall be a lien on the real estate of the judgment debtor within a county only from and after a STATEMENT OF JUDGMENT has been filed in the office of the county clerk in that county. (A judgment is the final decision of the court at the conclusion of a lawsuit.)
STATEMENT OF JUDGMENT: A 1988 amendment to 12 O.S. § 706 required the additional act of filing an affidavit of judgment in the office of the county clerk in the county in which the land is located. The proposal of the Title Examination Standards Committee in its 1988 Report, 59 O.B.J. 3098, 3104 (1988) to reflect this change in this standard was approved by the Real Property Section, December 8, 1988, and adopted by the House of Delegates, December 9, 1988. (In Oklahoma, after 1988 in order for a lien to be filed on a homeowner there must be an affidavit of judgment which will show the case number and the decision.) See also motions: Every motion shall be accompanied by a concise brief or a list of authorities upon which movant relies. (HOA board must show that genuine issue of material fact exists and that, by law, the undisputed facts support a judgment in the movant’s favor. Once the movant meets this burden, the opposing party is given a chance to refute the movant’s argument. (This is why proper procedure must be followed before a lien can be placed on property.)
Following the assessment letter the HOA must follow certain steps:
*Next send a Demand letter
*Affidavit which is a pleading stating the case against the homeowner
*Service of summons (issued by the clerk that notifies homeowner to appear and answer the complaint. This is usually delivered simultaneously with the service of process (§ Rule 2. Service and Proof of Service) that notifies defendants that a suit is pending against them and they must respond to it. See also § 51. Style of All Process (12. Civil Procedure)
§ 52. Appointment of Person to Serve Process or Order – Power of Server – Fees (12. Civil Procedure)
*Hearing
*Order
*Filing of lien, MUST be accompanied with the STATEMENT OF JUDGMENT. (County offices do not "police" what you are filing. If your board members does not have the STATEMENT OF JUDGMENT (de facto), before the filing of a lien board members themselves can be personally hit with a Slander of Title lawsuit.
Slander of Title: Definition: a false and malicious written or spoken public statement disparaging a person's title to property that causes harm for which special damages may be awarded
In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. For example, when the HOA is bringing a case against the homeowner the HOA has the burden of proof as to that allegation. The main standards of proof include clear and convincing evidence and preponderance of the evidence.
Your by-laws should also state the length of duration of the lien. However, it is important to note that State Law takes precedent over by-laws :
*D. DURATION OF A JUDGMENT LIEN. § sec 23.1. Judgment Liens
The lien of a judgment, pursuant to O.S. §, 12 706 , runs from the date the judgment lien is created until the judgment lien is extinguished
by the failure to extend the lien of the judgment pursuant to § 759. Filing and Indexing of Execution – Appraisement of Property C. To extend a judgment lien beyond the initial or any subsequent statutory period, prior to the expiration of such period, a certified copy of one of the following must be filed and indexed in the same manner as judgments in the office of the county clerk in the county in which the statement of judgment was filed and the lien thereof is sought to be retained:
1. A general execution upon the judgment;
2. A notice of renewal of judgment;
3. A garnishment summons issued against the judgment debtor; or
4. A notice of income assignment sent to a payor of the judgment debtor.
E. RELEASE OF JUDGMENT LIEN. § sec 23.1. Judgment Liens
A release of judgment lien, pursuant to O.S. §, 12 706 , must be filed in the office of the county clerk in the county in which the lien is to be released, unless the judgment lien was extinguished as set out in Paragraph D above.
2. The lien of any judgment which has been satisfied in full, vacated or become dormant or otherwise unenforceable and which has not been released by the judgment creditor shall be released by the court upon written motion. O.S. §, 12 706
§ 23. Extinguishing of Lien by Lapse of Time
A lien is extinguished by the mere lapse of the time within which, under the provisions of civil procedure*, an action can be brought upon the principal obligation. (*Civil procedure)