Presentation on theme: "L IEN J UMPING S TATUTES Presented by: Thomas H. Sellnow Sellnow Law Office, P.A. 229 Central Ave Long Prairie, MN 56347 Tel: 320-732-1919"— Presentation transcript:
L IEN J UMPING S TATUTES Presented by: Thomas H. Sellnow Sellnow Law Office, P.A. 229 Central Ave Long Prairie, MN Tel: Slides available at
PERSONALITY IN POSSESSION Lien jumping attribute Yes - If possession Maybe - If possession lost, subject to purchaser or encumbrancer in good faith w/o notice whose rights were acquired prior to filing and who has filed subd. 3 Attorney fees permitted? Yes Subd. 1. Notice § Within 60 days of loss of possession.
P ERSONALITY IN P OSSESSION : P OINT OF INTEREST Elements Subd. 1 Motor vehicles (Subd. 1(a) Does not apply to snow emergency tow. Subd. 1 and 2 do not apply to motor vehicles. Non-possessory lien Surrender or loses possession. File immediately!! Verified statement Conseco – They had a claim (but not a lien) for reasonable costs and expenses incurred in storing for an abandoned manufactured home on the rental premises. The PMSI remained superior. The court recognized that would take priority over a previously perfected security interest in the property. But – manufactured home was not stored at the request of owner or legal possessor. No bailment was created.
NONPOSSESSORY AIRCRAFT MECHANIC’S LIEN Lien jumping attribute Yes? - As long as in possession per No Subd. 3 except those filed in the appropriate filing office. Attorney fees permitted No Notice § Within 90 days after performing work verified statement.
LOGS TIMBER Lien jumping attribute Yes -Except as to State of MN. and owner/occupant from which timber was unlawfully removed. Attorney fees permitted No Notice Commissioner of Natural Resources, if mark Court Administration, if no marks
WAGES Lien jumping attribute Yes - As to mortgages, judgments, or liens which attach after the beginning of labor or services. Attorney fees permitted No Notice Notice to sheriff within 5 days after levy. (As against any attachment or execution levied.)
MACHINERY LIEN DURING MEDIATION Lien jumping attribute Yes - In crops produced by debtor during calendar year in which mediation occurs, creditor must participate in mediation. Attorney fees permitted No Notice § Within 30 days after the conclusion of mediation; void after 18 months.
GOVERNMENT SERVICES Lien jumping attribute Yes - Shall constitute and be a first and prior lien from the date of inspection, examination or service. Attorney fees permitted No Notice No record of such lien shall be deemed necessary, must be presented or proven in bankruptcy, insolvency, receivership or other similar proceeding or be barred thereby.
P OINTS OF I NTEREST Utility charges associated with real property, sewer, water, garbage, assessments. Sheriff fees incurred in sale. Assessments for improvement to the real property.
ENVIRONMENTAL LIEN Lien jumping attribute No - Subject to rights of prior perfected owner, purchaser, holder of mortgage or security interest or judgment creditor. Attorney fees permitted No Notice § File with recorder/registrar.
HOSPITAL CHARGES Lien jumping attribute Yes - Subject to attorney liens. Attorney fees permitted No Notice Court administration, county of hospital within 10 days of discharge.
G ENERAL P ROVISIONS – Lien is assignable Not affected by inaccuracies in the particulars of the lien statement, but the lien shall not exceed the lessor of amount claimed or justly due.
LAUNDERERS Lien jumping attribute Yes - Retain possession until paid. Attorney fees permitted No Notice Owner, by certified mail after 90 days, can sell at public or private sale 10 days later.
VETERINARIAN UNCLAIMED ANIMALS Lien jumping attribute Yes Attorney fees permitted No Notice 10 days after completion of care, written notice to owner or lawful possessor or publication at least 10 days prior to sale.
AGRICULTURAL PRODUCERS LIEN Lien jumping attribute Yes -Priority over all other liens. Attorney fees permitted Yes - To prevailing party. Notice 20 days then § Until 20 days after delivered without filing; Under by filing 20 days.
AGRICULTURAL LIENS L ANDLORD S TAT S UBD. 1 Lien jumping attribute Yes -Over all competing security interest and all agricultural liens with crops, products and proceeds for unpaid rents on crops produced upon landlord’s real property in crop year subject to the lease. Attorney fees permitted No -But see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § On or before 30 days after crops become growing crops.
AGRICULTURAL LIENS H ARVESTER ’ S S TAT S UBD. 2 Lien jumping attribute Yes -Over all competing security interest and all agricultural liens except a landlord’s lien and except a perfected crop production input lien for seed. Attorney fees permitted No -But see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § and Subd days after last date furnished
A GRICULTURAL L IENS C ROP P RODUCTION I NPUT S TAT S UBD. 3 Lien jumping attribute Yes – maybe. If perfected, has priority against all competing agricultural liens except landlord’s and harvester’s. Has priority over competing security interest in crops and proceeds if lien is effective before the secured party has given value to debtor. Attorney fees permitted No – but see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § and months after the last date that inputs are furnished. Plus notice Subd. 3(c) (1-5) to lender.
L ENDER ’ S R ESPONSE TO C ROP P RODUCTION I NPUT L IENS Ten day clock Commitment to all or part of cost. Written refusal. Practice Tip – When in doubt deny in time (10 days). Keep the envelope “IMPORTANT LEGAL NOTICE”
LIVESTOCK LIENS V ETERINARIAN ’ S L IEN § S UBD. 1 Lien jumping attribute Yes -Over all competing security interest and agricultural liens on same animals. Attorney fees permitted No -But see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § to Within 180 days after the last item of veterinarian service is provided.
LIVESTOCK LIENS B REEDER ’ S L IEN § S UBD. 2 Lien jumping attribute Yes - Over all competing security interest and all agricultural liens except a perfected vet lien and feeder’s lien. Attorney fees permitted No -But see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § to Within 6 months after last day that breeding services are furnished.
LIVESTOCK LIENS F EEDER ’ S L IEN § S UBD. 4 Lien jumping attribute Yes -Over all competing security interest and all agricultural liens except a perfected veterinarians lien. Attorney fees permitted No -But see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § to Within 60 days after the last day that feeding services are furnished.
LIVESTOCK LIENS L IVESTOCK P RODUCTION I NPUT L IEN § S UBD. 3 Lien jumping attributes Yes - Maybe If perfected, has priority against all agricultural liens except vet liens, feeders liens and breeders liens. Has priority over a competing security interest in livestock and proceeds if lien is effective before the secured party gave value to debtor. Attorney fees permitted No -But see (a)(1)…reasonable attorney’s fees and legal expenses incurred by the secured party. Notice § to months after last inputs are furnished plus notice to lender. Plus notice Subd. 3(c)(1-6) to lender.
LIEN ON PERSONAL PROPERTY IN SELF STORAGE Lien jumping attribute Yes -Except those perfected before the lien attaches. Normally attaches is equal to date of default. Attorney fees permitted Perhaps look at agreement “…other charges in relation to the personal property specified in the rental agreement…” Notice § and Rental agreement must include a disclosure of lien rights upon failure of occupant to pay rent including the right to deny access to certain personal property contained in unit.
MEDICAL ASSISTANCE LIEN Lien jumping attribute No -Subject to the rights of any person whose interest in real property in perfected before a lien notice has been filed under including: An owner other than recipient or recipient’s spouse; Purchase or holder of mortgage or security interest; Judgment lien creditor. Attorney fees permitted No Notice § County recorder or registrar of titles, as appropriate in county where real property is located.
POINTS OF INTEREST A lien in favor of the agency upon all real property that is owned by the M.A. recipient on or after institutionalized. Attaches and becomes enforceable against specific real property Payments made by an agency for M.A. Notice and opportunity to be heard (due process) A lien notice has been filed § If registered property – memorialized on COT Restrictions against enforcement have ceased have ceased to apply
L IEN F ILING R ESTRICTIONS § S UBD. 2 M.A. recipient or legal representative has been sent by certified or registered mail, w/ notice of rights and agency determines by medically verified by attending physician that M.A. recipient cannot reasonably be expected to be discharged and return home. May not file notice while it is the home of recipient’s spouse or Child under 21 or blind or permanently and totally disabled Child resided in homestead for 2 yrs before M.A. recipient received medical institution services AND child provided care that permitted the recipient to live w/o medical institution services A sibling of M.A. recipient if the sibling has an equity interest in property and resided in the property for one year immediately before recipient began receiving medical institution services Lien applies only to the specific real property described in the lien notice
C ONTINUATION OF L IEN N OTICE AND L IEN § S UBD. 3 Effective from time of filed until discharged M.A. lien that has attached to specific real property continues until satisfied, becomes unenforceable under § Subd. 6 (10 years) or is released or discharge under Subd. 5.
L IEN P RIORITY § S UBD. 4 A M.A. lien that attaches to specific real property is subject to the prior perfected interests including: Owner (other than recipient or recipient’s spouse) Purchaser Holder of a MTG or security interest or Judgment creditor Inferior to a lien for taxes or special assessments or other lien that would be superior to the perfected lien of a judgment creditor
T IME & C LAIM L IMITS § S UBD. 6 Ten years, but agency may renew Not enforceable against real property if the court determines that are insufficient asserts of the estate in while or in part because: Homestead exemption § 256B.15 Subd. 4 Rights of surviving spouse or minor children § (a) & (b) Claims w/ priority § (a) (1-4)
L IFE E STATES AND J OINT T ENANCIES If subject to a M.A. lien, shall not end but merge into the remainder interest or other interest M.A. lien attaches to the extent of M.A. recipients interest at the time of death. Life estate – lien is percentage factor based upon recipient's age on the date of death as listed in Life Estate mortality table in health care program manual If Joint Tenancy – portion of that interest equal to fractional interest the M.A. would have owned as T/C on date of M.A. recipient’s death (i.e. 4 owners of J.T. – M.A. recipient's interest is ¼) Statutes modifies common law w/ respect to L.E. & J.T.’s.
L IMITATION OF L IFE E STATE AND J OINT T ENANCY L IENS Does not apply to J.T. homestead owned with spouse and owned of record on date of recipient’s death An affidavit may be used to prove homestead – prima facie evidence Lien is effective only against L.E.’s & J.T.’s established after August 1, 2003.
NONCONSENUAL COMMON LAW LIENS Lien jumping attribute No -Invalid lien Attorney fees permitted Yes - To owner of real property plus $5, or actual damage, whichever is greater. Notice § Subd. 3 No earlier than 6 nor later than 21 days following service of petition and order.
FINAL SLIDE Questions? Contact Information Thomas H. Sellnow Phone: