§ 35-35-05 — Petition to declare lien invalid - Procedure - Order to show cause - Remedies - Order to be filed

Remedies - Order to be filed.
1. Any person who has real or personal property or an interest therein, which is subject to
a filed or recorded nonconsensual common-law lien may petition the district court for
the county in which the lien is filed or recorded for an order directing the lien claimant
to appear before the court to show cause why the lien should not be declared void and
the relief provided for by section 35-35-06 granted to the petitioner. The order directing
the lien claimant to appear and show cause may be granted ex parte. The petitioner
shall serve the order and petition on the lien claimant by personal service or by mailing
copies of the petition and order to the lien claimant at the lien claimant's last-known
address.
2. The petition must state the grounds upon which relief is requested, and must be
supported by the affidavit of the petitioner, or the petitioner's attorney, setting forth a
concise statement of the facts upon which the claim for relief is based.
3. Any order rendered under this section must clearly state that if the lien claimant fails to
appear at the time and place noted in the order, the lien must be declared void ab initio
and released and removed from the filing officer's files or records, and the lien
claimant must be ordered to pay damages of one thousand dollars or actual damages,
whichever is greater, and the costs incurred by the petitioner, including reasonable
attorney's fees.
4. If, after a hearing on the matter, the court determines that the document is a
nonconsensual common-law lien, the court shall issue an order declaring the lien void
ab initio, directing the filing officer to release and remove the lien from the files and
records and awarding damages as provided in section 35-35-06 to the petitioner.
5. If the court determines that the lien is not a nonconsensual common-law lien, the court
shall issue an order so stating and may award costs and reasonable attorney's fees to
the prevailing party.
6. The district court clerk shall file a copy of any order rendered pursuant to this section
in the office where the lien was filed.