Revision: March 27, 2014, midnight
HB 1122-FN – AS AMENDED BY THE HOUSE
12Feb2014… 0438h
25Mar2014… 1052h
2014 SESSION
10/03
HOUSE BILL 1122-FN
AN ACT relative to the filing with a registry of deeds of a fraudulent document purporting to create a lien or claim against real property.
SPONSORS: Rep. P. Schmidt, Straf 19; Rep. Walz, Merr 23; Sen. Carson, Dist 14
COMMITTEE: Legislative Administration
This bill establishes requirements for registers of deeds or other public official presented with a fraudulent filing of a document purporting to create a lien on or assert a claim or interest on real property. The bill establishes criminal penalties for persons who file fraudulent documents or instruments with the registry of deeds.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12Feb2014… 0438h
25Mar2014… 1052h
14-2160
10/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to the filing with a registry of deeds of a fraudulent document purporting to create a lien or claim against real property.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Fraudulent Filings. Amend RSA 478 by inserting after section 41 the following new subdivision:
Fraudulent Filings
478:42 Fraudulent Filings.
I. A person may not intentionally or knowingly present for filing or cause to be presented for filing in a registry or other public office, any type of document that is an alleged judgment or other document purporting to memorialize or evidence an act, order, directive, or process of creating a lien without having been authorized under state law, the Constitution, or the laws of the United States.
II. For purposes of this section, a document or instrument that purports to create a lien on, assert a claim against, or assert an interest in, real or personal property, is presumed to be fraudulent if it:
(a) Is not certified or ordered by a court or a judicial entity expressly created or established under the Constitution or the laws of this state or of the United States; or
(b) Is not a document or instrument provided for by the Constitution or the laws of this state or the United States.
III. Nothing contained herein shall affect the validity of a mechanic’s or statutory lien created pursuant to state or federal law.
IV. If a register of deeds or other public official believes in good faith that a document filed with the registry of deeds or other public office purports to create a lien that is fraudulent, the register or other public official shall index the document only under the signer of the document in the grantor index and shall identify the document as a notice in the document type. No other names appearing on the document shall be indexed.
(a) The register or other public official shall send a copy of such document to the county attorney for the county where the document was filed or to the New Hampshire attorney general’s office for review and possible prosecution.
(b) The county attorney or attorney general receiving a copy of a document under subparagraph (a) shall send a notice of the action taken under this paragraph to the person presenting or causing such filing by regular mail at his or her last known address no later than the next business day after such action.
(c) Any such document or instrument on file with the registry of deeds or other public office presumed to be fraudulent or deemed fraudulent as described in this section shall be considered invalid, void, and having no force or effect on any named person or persons named within the document or instrument.
(d) Any register of deeds or other public official acting in good faith pursuant to this chapter shall be immune from civil and criminal liability.
V. Any person who shall knowingly or intentionally file a document or instrument to fraudulently create a lien on real or personal property shall be guilty of a class B felony and shall be subject to the costs and reasonable attorneys’ fees incurred by the aggrieved party in the proceedings.
2 Effective Date. This act shall take effect upon its passage.
LBAO
14-2160
11/21/13
HB 1122-FN - FISCAL NOTE
AN ACT establishing the crime of filing false lien statements against public officials and employees.
FISCAL IMPACT:
The Judicial Branch, Department of Justice, Department of Corrections, Judicial Council, and New Hampshire Association of Counties state this bill, as introduced, may increase state and county expenditures by an indeterminable amount in FY 2015 and each year thereafter. There will be no impact on local expenditures, or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill amends RSA 641, making it a felony offense to file a false lien statement against a public official or public employee. The Branch states it has no information on which to estimate how many felonies will be brought under the bill. The Branch does, however, have information on the average cost of processing such cases in the trial court. Any felony offense under the bill would be classified as a routine criminal case in the superior court; the Branch projects that the cost of prosecuting an average routine criminal case in the superior court will be $425.27 in FY 2015, and $433.34 in FY 2016. These numbers do not consider the cost of any appeals that may be undertaken following trial. All costs are estimated based on case weight information from the Branch’s last needs assessment completed in 2005.
The Department of Justice states that it will likely investigate and prosecute a small number of cases brought as a result of this bill, but that the number and cost cannot be estimated and thus the fiscal impact is indeterminable.
The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to the legislation. The Department states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2013 was $32,872. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2013 was $570.
The Judicial Council states the bill may result in an indeterminable increase in general fund expenditures. The Council states that anyone charged with a felony who cannot afford the assistance of council will be eligible for a lawyer at state expense. Under the statutory order of assignment contained in RSA 604-A:2, representation is provided in the first instance by the public defender program, which provides representation in over 85 percent of indigent-defense cases. If a conflict of interest prevents the public defender program from providing representation in one or more cases, representation would be provided by a contract attorney. These attorneys work on a per-unit basis; Class B felonies are paid out at a rate of $756.25 per case, and defendants are ordered to repay these costs through the Office of Cost Containment. If a contract attorney is unavailable, the case would go to the assigned counsel system, in which compensation is paid at $60 per hour up to a cap of $4,100.
The New Hampshire Association of Counties states the fiscal impact of the bill is indeterminable. The Association states the average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.