COMMON LAW LIEN WRIT OF ATTACHMENT By Alfred Adask [Reprinted with permission from the AntiShyster, POB 540786, Dallas, Texas 75354-0786, or call (214) 559-7957 - an annual subscription (6 issues) $25.] Suppose you bought a $100,000 house seven years ago when the economy was strong, your job secure, and life looked great. You paid $20,000 down and borrowed the other $80,000 from the bank. Over the last seven years, you paid off another $20,000 on the principle of the bank loan leaving a $60,000 balance due on the principle of your mortgage), spent $5,000 installing a new roof, and the house appreciated in value from $100,000 to $150,000. You still owe the bank $60,000 on the principle of your loan, but your personal equity in your house is now $90,000 ($20,000 downpayment + $20,000 paid on principle + $5,000 improvements + $45,000 appreciation). Suppose you were laid off last winter, haven't been able to find work in your profession, and are now unemployed or so "underemployed" you can no longer afford the payments on your house (or farm, or car). After you miss a few payments, the bank holding the mortgage on your home may institute foreclosure proceedings, force a quick sale of your home on the courthouse steps for a substantially reduced price, and apply all (or most) of the proceeds of the sale to paying off the remaining $60,000 principle due on your mortgage. Typically, the foreclosed house is sold on the courthouse steps (often for just enough to pay off the mortgage) and the bank would receive all, or the majority, of the proceeds of the sale. Unfortunately, the homeowner's downpayment, mortgage payments, maintenance costs, and appreciation is wiped out in the quick, cut- rate foreclosure sale. His $90,000 personal equity is vaporized. The new buyer of the property would get a great bargain, but it would be at the expense of the former home owner. Variations of this unpleasant scenario have occurred regularly (and generally without protest) during the past several years of the nation's economic decline. When you stop to think about it, it's curious that home owners take it for granted that if they fall behind in their payments, they are "honor bound" to forfeit everything they've already invested. Remember, we're not talking about some homeowner who's too lazy to work - we're talking about a man who's unemployed and unable to pay his bills because forces beyond his control (probably the government) mismanaged the economy and precipitated a recession. Where is the justice in letting a homeowner invest a downpayment, years of mortgage payments, and maintenance costs in a property, and then, when he hits a temporary low in his life (as most of us do, sooner or later), take the property away from him and essentially rob him of most of the money and years he invested in the property? Should that homeowner lose everything because the nation is in economic decline? Realistically, who caused the decline? Why doesn't the party responsible for the recession have to pay, rather than the victim? And why, if there's a general economic downturn, should the homeowner bear complete responsibility for the decline? Shouldn't the bank, or perhaps the government also share in the losses? COMMON LAW LIENS Several pro se litigants have developed an unusual legal strategy that seems to stop foreclosures, or at least minimize their damage to property owners. According to Mark Zimmerman of Pro Se Litigants of Florida: "Check the case law [cited in the following lien form], and you'll see that a property owner can effectively lien himself to the property. I believe that the common law lien is superior to any other lien, and therefore, if this logic is correct, the homeowner must be paid first after a foreclosure, prior to any payment of an "Equity lien" to the mortgage holder (the bank or mortgage company). This would require that after a foreclosure, the home owner be paid first and in full before the mortgage company is paid." As I understand it, this "common law lien" strategy calls for the owner of a property, which is about to be foreclosed, to file his own "federal common law lien writ of attachment" naming himself as the lienor against his own property. That's the key to the strategy: You file a lien on your own property based on whatever investments or equity you have accumulated in your property. Because this is a "federal common law lien", it theoretically takes precedence over "equity" liens (like the mortgage) filed by local lienors (banks and mortgage companies). Therefore, under this common law lien strategy, when a property is foreclosed, the order of payment is reversed: the property owner is the first lienor to be paid from the proceeds of the sale, and would at least recover his investment in the property; and the bank is paid last. In other words, if a home owner filed his own "federal common law lien writ of attachment" naming himself as a lienor, he would not lose everything in a foreclosure, but could theoretically recover all of the money he had invested in the house. For example, our original homeowner's equity of $90,000 on the $150.000 house would be the first money paid from the sale of the house, and it would go to the homeowner. The bank would take it's share out of whatever was left. Mr. Zimmerman says this "common law lien" strategy has been used twice in Florida and has stopped foreclosures cold --both times -- "right on the courthouse steps". He also claims the strategy drives the mortgage holder or other lien holders absolutely nuts because they are effectively prevented from making a quick, cheap sale of the property to recover their loans (and sometimes make a quick, exorbitant, unscrupulous profit at the homeowner's expense). Since the bank is last to be paid, and only receives whatever is left over after the homeowner is paid his equity, the bank doesn't dare sell the property for less than its market value, since any reduction in price will come out of the bank's share of the sale, i.e., if the bank has $60.000 still due on the mortgage, and sells the $150,000 house for the reduced price of $125,000, the homeowner will get the first $90,000 and the bank will get only $35,000 -- causing the bank to suffer a $25,000 loss. This makes the bank extremely "reluctant" to foreclose. Further, Phillip Marsh (of the Pilot Connection) claims there are only three ways to remove a "common law lien": 1) wait 100 years; 2) have it removed by a "common law jury"; or 3) pay it off in full. If he's correct, no judge could arbitrarily remove a common law lien, and the only practical method for removal would be to pay the lienholder. If Mr. Marsh is correct, it means banks and mortgage holders would be effectively compelled to pay the common law lienholder first, and in full, before they could take any of the foreclosure money for themselves. PUBLIC POLICY NO. 1? At first glance, this strategy sounds delightfully effective, but a little too slick, almost wickedly so. After all, the bank is entitled to recover its loan when you fail to make your payments, right? Of course. To deny the bank it's right to collect its money would be an injustice, right? Of course. But the common law lien strategy doesn't create an injustice, it stops an injustice. Under this strategy, the bank can still foreclose if they must, but because it will be the last party paid, the bank can't afford to sell the house at a price far below its fair market value. Because the homeowner has to be paid first, the bank (which initiates the foreclosure) must ensure that the house is sold for enough money so both the homeowner and the bank receive a fair return from the foreclosure sale. Therefore, this common law lien strategy would prevent injustice by inhibiting the bank from foreclosing and selling the house for a fraction of its value and thereby destroying (stealing) the homeowner's personal investment and equity. In fact, this common law lien strategy would tend to make "partners" of the bank and homeowner who were compelled to work together to protect each other, rather than adversaries able to profit unfairly at the other's expense. Where's the injustice in that? So far as I can see, this "federal common law lien" strategy does not cheat the bank or anyone else who has a loan against the house. Everyone will be paid (or suffer similar losses) but instead of the homeowner being paid little or nothing, the homeowner would generally be paid first, and in full. [There is an exception: mechanic's liens probably take precedence over the federal common law liens. For instance, if the roofer who put the $5,000 roof on the house had not been paid for his work when the house is foreclosed upon, the roofer's mechanic's lien would be paid first, the homeowner's "common law lien" would be paid second, and the bank's equity lien (mortgage) would be paid third. Sounds fair to me.] In truth, the "common law lien" strategy is less a "slick trick" than a real improvement in the quality of justice surrounding foreclosures, bankruptcies, et al. After all, why should the homeowner, alone, accept a (nearly) complete loss in the event of a foreclosure? Why shouldn't the homeowner be entitled to recover the money he's invested in the home? Moreover, this "common law lien" strategy is not merely good for the occasional homeowner faced with foreclosure, it's good public policy. Is it so far-fetched to suppose that if banks couldn't profit from our individual economic misfortunes, there might be a lot less misfortune? What would happen to our national economy if banks and mortgage companies were effectively prevented from profiting from foreclosure sales during a recession? It might mean the banks would have a stronger vested interest in preventing recessions, rather than tolerating and then exploiting them (as they do now). And if the bankers took a more serious interest in preventing economic declines, wouldn't they also play a more aggressive role in exposing whatever government idiocies ultimately cause those declines? Wouldn't that be good for everyone? If this "common law lien" strategy really works, it just might produce some suprising, positive benefits for the entire nation. CAVEATS But, does this "common law lien" strategy really work? Does it work always? Ever? And will it work in Texas or Oregon as well as Florida? I don't know, and neither do the folks in Florida who developed it. Although this strategy has reportedly stopped two foreclosures "on the courthouse steps", it is uncertain whether the strategy will stand up under rigorous legal examination. It's entirely possible that the reported success of this strategy is based on the "caveats" and threats of prosecution written into this common law lien. It's possible that no sensible official, faced with this lien for the first time, would execute a foreclosure until the validity of this new strategy (and the official's personal liability) could be determined. In short. just because the "common law lien" form looks slick and has scared a few officials, doesn't mean it's a legitimate (or foolproof) strategy. So I present the "federal common law lien writ of attachment" as another "legal experiment" conducted by some inventive pro se's. Read it over, and if the strategy intrigues you, research and confirm the cases cited in the form, read up on the law in your area concerning liens in general (and common law liens in particular), as well as property descriptions and so on, and then make up your own mind. The form might seem a little confusing at first glance, but just remember that the various case numbers, dates, and names of lienors, counties, etc., must all be changed to reflect your specific case. Further, any of the [bracketed comments] are general descriptions of the kind of information that must be furnished at that point in the form. Bear in mind that the following "common law lien" form is said to work in Florida and may reflect a format required in Florida, but still be contrary to the rules of your locality. Before you attempt to use this fonn or the "common law lien" strategy, make sure both form and strategy conform to the legal requirements of your state and local courts. As always, the final responsibility for using any legal strategy or advice is your own, so be careful. But be inquisitive, too. There is not so much to fear in the legal system that we should be afraid to try new strategies, especially if our backs are up against the courthouse wall. If you try this "common law lien" strategy and it works, let us know. Likewise, if you discover that this strategy is defective, or can be improved, tell us that, too. = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = FEDERAL COMMON LAW LIEN AND NOTICE OF FEDERAL COMMON LAW LIEN WRIT OF ATTACHMENT ON REAL AND PERSONAL PROPERTY (Date).1992 NOTICE TO: Clerk of the Circuit Court for the Sixth Judicial Circuit of the State of Florida in and for Pinellas County; and Sheriff of Pinellas County, Florida; and (name), Vice President on behalf of (name of bank), Plaintiff; and (name), attorney for the Plaintiff; and All Title Companies; and All Potential Purchasers; and all entities who may claim interest now or at some time in the future; and All persons known and unknown who may be similarly situated and All other concerned parties. You are hereby notified that a FEDERAL COMMON LAW LIEN WRIT OF ATTACHMENT - ON REAL AND PERSONAL PROPERTY is now in effect on a certain parcel of Real Estate now of record in the Name of JOHN Q. PUBLIC the LIENOR, on property located in Pinellas County, Florida, and known as (property address, city, state,); and more specifically LEGALLY described as: [Here, the form contains the legal description of the property, including: the Lot number(s) according to map or Plat as recorded in Plat Book XXX, page XXX, of Public Records of (name of county) County, State.] Copy of this Federal Common Law Lien Writ of Attachment On Real And Personal Property has also been filed in the following case file with the Clerk Of The Circuit Court Of Pinellas County, Florida: Case No: 92-XXXXX Pursuant to that certain agreement that JOHN Q. PUBLIC, the OWNER of the property, and JOHN Q. PUBLIC, the LIENOR, claims the attachment of the FEDERAL COMMON LAW LIEN WRIT OF ATTACHMENT ON REAL AND PERSONAL PROPERTY is in the AMOUNT of: Thirty-Five Thousand Dollars ($35.000.00) MEMORANDUM OF LAW lN SUPPORT OF Writ Of Attachments are but another form of Federal Common Law Lien and supercede mortgages and equity liens, Drummond Carriage v. Mills, (1878) N.W. 99; Hewitt V. Williams, 47 La. Ann. 742, 17 So. 269; Carr V. Dail, 19 S.E. 235; McMaham V. Ludin 58 N.H. 827, and may be satisfied only when paid and/or property is taken in lieu of the monetary value and fully satisfied by said taking of property. The ruling of the U.S. Supreme Court in Rich v. Braxton, l58 U.S. 375, specifically forbids judges (Titles of Nobility) from invoking equity jurisdiction to remove common law liens or similar "clouds of title." Furthermore, even if a preponderance of evidence displays the lien to be void or voidable, the equity court (and Title of Nobles) still mmay not proceed until the moving party asks for and comes "to equity" with "clean hands" based on the "Clean Hands Doctrine" And "Power Of Estoppel", Trice v. Comstock, 57 C.C.A. 646; West V. Washington Sheriff, 153 App. Div. 460, 138 N.Y. Supp. 230. ANY OFFICIAL WHO ATTEMPTS TO MODIFY OR REMOVE THIS COMMON LAW LIEN IN THE FORM OF WRIT OF ATTACHMENT IS FULLY LIABLE FOR DAMAGES AT LAW PURSUANT TO THE MANDATORY RULINGS OF THE U.S. SUPREME COURT IN BUTZ v. ECOHOMU, 438 U.S. 494, 98 S/Ct. 2894; BELL v. HOOD, 327 U.S. 678; and BIVENS v. UNKNOWN AGENTS, 499 U.S. 388. This Federal At Law Lien in the form of a Writ Of Attachment(s) shall be valid, notwithstanding any other provision of statute or rule regarding the form or content of a "notice of lien", nor shall it be dischargeable for 100 years, nor extinguishable due to lienor's death whether accidental or purposely, nor dischargeable by lienor's heirs, assigns, or executors. CAVEAT Whoever attempts to modify, circumvent, and/or negate this Federal Common Law Lien, in the form of Writ Of Attachment, shall be deemed outlaws and/or felons and shall be prosecuted pursuant to Title 42, United States Code, Sect. 1983, 1985, and 1986, and punishable under the penalties of the common law at law and applicable sections of Title 18, United States Code. Demand is made upon all public officials under penalty of Title #42 U.S.C. Section 1986 not to modify or remove this lien any manner. JUDICIAL NOTICE WE HEREBY NOTICE this all parties and this Court that pursuant to U.S. Supreme Court case HAFER v. MELO. No. 90-681, November, 1991, any judicial actions which violate the constitutional rights of individuals may be sued as a cause of action in civil litigation against those performing said acts, without any form of immunity. CIVIL RIGHTS - Immunity: State officials sued in their individual capacities are "persons" subject to suits for damages under 42 USC 1983; Eleventh Amendment does not bar such suits in federal court. (Hafer v. Melo. No. 90-681). page 4001. Respectfully Submitted in the Name of Justice on this _________ day of _________________(Month), 19_____ . (John Q. Public's Signature) (Lienor's typed name, address, and phone number) AFFIDAVIT STATE OF FLORIDA COUNTY OF PINELLAS BEFORE ME, the undersigned authority, on this _____ day of ________, 19___, did personally apear JOHN Q. PUBLIC, the OWNER of the property, and JOHN Q. PUBLIC, the LIENOR, who being first personally and duly sworn, does depose and say that the information contained in this foregoing Federal Common Law Lien Writ of Attachment of Real and Personal Property is true and accurate. Further this affiant sayeth not. (Signature) (Signature) JOHN Q. PUBLIC JOHN Q. PUBLIC "PROPERTY OWNER" "LIENOR" ACKNOWLEDGEMENT STATE OF FLORIDA COUNTY OF PINELLAS The foregoing Federal common Law Lien Writ of Attachment on Real and Personal Property was acknowledged before me this _____ day of __________, 19___, by JOHN Q. PUBLIC, the OWNER of the property, and JOHN Q. PUBLIC, the LIENOR, who is personally known to me or who has produced his Driver's License as idedification and who did take an oath and acknowledged that he did execute same. (Notary Signature) Print Name: Notary Public State of Florida At Large My Commission Expires: FLORIDA SHORT FORM INDIVIDUAL ACKNOWLEDGMENT (F.S.695.25) Type or Title of Document: FEDERAL CLAIM OF COMMON LAW LIEN and NOTICE OF FEDERAL COMMON LAW LIEN WRIT OF ATTACHMENT ON REAL AND PERSONAL PROPERTY Number of pages: Date of document: JOHN Q. PUBLIC, the OWNER of the propeny; and JOHN Q. PUBLIC, the LIENOR.