North Carolina § 14-118 - 6. Filing false lien or encumbrance.

§ 14-118. 6. Filing false lien or encumbrance.

It shall be unlawful for any person to present for filing or recording in a public record or a private record generally available to the public a false lien or encumbrance against the real or personal property of an owner or beneficial interest holder, knowing or having reason to know that the lien or encumbrance is false or contains a materially false, fictitious, or fraudulent statement or representation. Any person who violates this subsection shall be guilty of a Class I felony. When presented to the register of deeds for recording, if a register of deeds has a reasonable suspicion that an instrument purporting to be a lien or encumbrance is materially false, fictitious, or fraudulent, the register of deeds may refuse to record the purported lien or encumbrance. Neither the register of deeds nor any other entity shall be liable for recording or the refusal to record a purported lien or encumbrance as described in this section. If the recording of the purported lien or encumbrance is denied, the register of deeds shall allow the recording of a Notice of Denied Lien or Encumbrance Filing on a form adopted by the Secretary of State, for which no filing fee shall be collected. The Notice of Denied Lien or Encumbrance Filing shall not itself constitute a lien or encumbrance. When recording is denied, any interested person may initiate a special proceeding in the county where the recording was denied within ten (10) business days of the filing of the Notice of Denied Lien or Encumbrance Filing asking the superior court of the respective county to find that the proposed recording has a statutory or contractual basis and to order that the document be recorded. If, after hearing, upon a minimum of five (5) days' notice as provided in Rule 5 of the Rules of Civil Procedure and opportunity to be heard to all interested persons and all persons claiming an ownership interest in the property, the court finds that there is a statutory or contractual basis for the proposed recording, the court shall order the document recorded, and the party submitting the instrument shall pay the filing fee in accordance with G.S. 161-10. A lien or encumbrance recorded upon order of the court under this subsection shall have a priority interest as of the time of the filing of the Notice of Denied Lien or Encumbrance Filing. If the court finds that there is no statutory or contractual basis for the proposed recording, the court shall enter an order finding that the proposed recording is null and void and that it shall not be filed, indexed, or recorded and a certified copy of that order shall be recorded by the register of deeds that originally denied the recording, for which the party who submitted the instrument shall pay the filing fee in accordance with G.S. 161-10. The review by the judge under this subsection shall not be deemed a finding as to any underlying claim of the parties involved. If a special proceeding is not initiated under this subsection within ten (10) business days of the filing of the Notice of Denied Lien or Encumbrance Filing, the purported lien or encumbrance is deemed null and void as a matter of law. When a purported lien or encumbrance is presented to a clerk of superior court for filing and the clerk of court has a reasonable suspicion that the purported lien or encumbrance is materially false, fictitious, or fraudulent, the clerk of court may refuse to file the purported lien or encumbrance. Neither the clerk of court nor the clerk's staff shall be liable for filing or the refusal to file a purported lien or encumbrance under this subsection. The clerk of superior court shall not file, index, or docket the document against the property until that document is approved by any judge of the judicial district having subject matter jurisdiction for filing by the clerk of superior court. If the judge determines that the filing is not false, the clerk shall index the claim of lien. A lien or encumbrance filed upon order of the court under this subsection shall have a priority interest as of the date and time of indexing by the clerk of superior court. If the court finds that there is no statutory or contractual basis for the proposed filing, the court shall enter an order that the proposed filing is null and void as a matter of law, and that it shall not be filed or indexed. The clerk of superior court shall serve the order and return the original denied filing to the person or entity that presented it. The person or entity shall have 30 days from the entry of the order to appeal the order. If the order is not appealed within the applicable time period, the clerk may destroy the filing. Upon being presented with an order duly issued by a court of competent jurisdiction of this State declaring that a lien or encumbrance already recorded or filed is false, and therefore null and void as a matter of law, the register of deeds or clerk of court that received the recording or filing, in addition to recording or filing the court's order finding the lien or encumbrance to be false, shall conspicuously mark on the first page of the original record previously filed the following statement: "THE CLAIM ASSERTED IN THIS DOCUMENT IS FALSE AND IS NOT PROVIDED FOR BY THE GENERAL LAWS OF THIS STATE." In addition to any criminal penalties provided for in this section, the presentation of an instrument for recording or filing with a register of deeds or clerk of superior court that purports to be a lien or encumbrance that is determined to be materially false, fictitious, or fraudulent shall constitute a violation of G.S. 75-1.1. Subsections (b), (b1), and (c) of this section shall not apply to filings under Article 9 of Chapter 25 of the General Statutes or under Chapter 44A of the General Statutes. History (2012-150, s. 4; 2013-170, s. 1; 2013-410, s. 27.8; 2015-87, s. 1; 2017-102, s. 3; 2019-117, s. 3; 2019-243, s. 29(a).) Editor's Note. - Session Laws 2015-87, s. 2, made the amendment to this section by Session Laws 2015-87, s. 1, applicable to all filings on or after October 1, 2015. Effect of Amendments. - Session Laws 2013-170, s. 1, effective December 1, 2013, in subsection (a), added "or an immediate family member of the public officer or public employee" and made related stylistic changes, and added the second sentence. For applicability, see Editor's note. Session Laws 2013-410, s. 27.8, effective August 23, 2013, added "for which no filing fee shall be collected" at the end of the third sentence of subsection (b). Session Laws 2015-87, s. 1, effective October 1, 2015, inserted "or recording" near the beginning of subsection (a); rewrote subsection (b); added subsection (b1); rewrote subsection (c); and substituted "Subsections (b), (b1), and (c)" for "Subsections (b) and (c)" in subsection (e). For applicability, see editor's note. Session Laws 2017-102, s. 3, effective July 12, 2017, rewrote the third sentence of subsection (b1), which read: "The clerk of superior court shall not file, index, or docket the document against the property of a public officer or public employee until that document is approved for filing by the clerk of superior court by any judge of the judicial district having subject matter jurisdiction." Session Laws 2019-117, s. 3, effective December 1, 2019, inserted "purported" preceding "lien" throughout subsections (b) and (b1); in subsection (a), substituted "an owner or beneficial interest holder" for "a public officer, a public employee, or an immediate family member of the public officer or public employee on account of the performance of the public officer or public employee's official duties" and deleted the former second sentence, which read: "For purposes of this subsection, the term 'immediate family member' means a spouse or a child."; in subsection (b), in the first sentence, substituted "an instrument purporting to be a lien or encumbrance is materially false, fictitious, or fraudulent" for "the lien or encumbrance is false, as described in subsection (a) of this section" inserted "and the party submitting the instrument shall pay the filing fee in accordance with G.S. 161-10 " and "for which the party who submitted the instrument shall pay the filing fee in accordance with G.S. 161-10 " at the end; in subsection (c), deleted "as described in subsection (a) of this section" preceding "and therefore"; and, in subsection (d), substituted "the presentation of an instrument for recording or filing with a register of deeds or clerk of superior court that purports to be a lien or encumbrance that is determined to be materially false, fictitious, or fraudulent" for "a violation of this section." Session Laws 2019-243, s. 29(a), effective December 1, 2019, in subsection (b1), substituted "materially false, fictitious, or fraudulent," for "false as described in subsection (a) of this section" in the first sentence and deleted "of a public officer or public employee" following "against the property" in the third sentence.