The Texas Surveyor - January 2022 - Magazine - Page 17
An Attorney’s Angle
Continued from page 16
In re Nguyen,
456 S.W.3d 673 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
“Pursuant to section 51.903 of the Texas Government Code, ‘[a] person who is the purported debtor or obligor who owns real ...
property and who has reason to believe that the document purporting to create a lien or a claim against the real ... property previously
filed is ... fraudulent may complete and file a ... motion, verified by affidavit ... that contains, at a minimum the information in ... the
suggested form.’ ... [A] district judge may rule upon the motion ex parte after reviewing only the documentation or instrument attached
to the motion, without testimonial evidence and without notice of any kind.
A document is ‘presumed’ to be fraudulent if ... ‘it purports to create a lien or assert a claim against real ... property and: (A) is not a
document or instrument provided for by the constitution or law of [Texas] or of the United States; (B) is not created’ with the express or
implied consent of the property owner or obligor, and “’(C) is not an equitable, constructive, or other lien”’ created by a court. Id. at 4.
“Under this statutory scheme, the court may presume the document is fraudulent under this section if the court makes one positive and
three negative findings about the subject document.” Id. (citations omitted).
The claim in this case amounted to merely an allegation of forgery, which is inappropriate in a §51.903 challenge. “The limited nature of
the court’s section 51.903 review” is because “such proceedings are conducted ex parte, without any testimonial evidence, and without
notice of any kind.” Id. at 5. ■
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The Texas Surveyor | January 2022