2006 Nebraska Revised Statutes - § 42-371 — Judgments and orders; liens; release; time limitation on lien; refusal to release lien; procedure for relief; security; attachment; priority.

Section 42-371
Judgments and orders; liens; release; time limitation on lien; refusal to release lien; procedure for relief; security; attachment; priority.

Under the Uniform Interstate Family Support Act and sections 42-347 to 42-381, 43-290, 43-512 to 43-512.10, and 43-1401 to 43-1418:

(1) All judgments and orders for payment of money shall be liens, as in other actions, upon real property and any personal property registered with any county office and may be enforced or collected by execution and the means authorized for collection of money judgments. The judgment creditor may execute (a) a partial or total release of the judgment or (b) a document subordinating the lien of the judgment to any other lien, generally or on specific real or personal property. Release of a judgment for child support or spousal support or subordination of a lien of a judgment for child support or spousal support must be approved by the court which rendered the judgment unless all such payments are current, in which case a release or subordination document executed by the judgment creditor shall be sufficient to remove or subordinate the lien. A properly executed, notarized release or subordination document, explicitly reciting that all child support payments or spousal support payments are current, shall be prima facie evidence that such payments are in fact current. The judgment debtor may file a motion in the court which rendered the original judgment for an order releasing or subordinating the lien as to specific real or personal property. The court shall grant such order upon a showing by the judgment debtor that sufficient real or personal property or property interests will remain subject to the lien or will maintain priority over other liens sufficient to cover all support due and which may become due;

(2) Full faith and credit shall be accorded to a lien arising by operation of law against real and personal property for amounts of overdue support owed by an obligor who resides or owns property in this state when another state agency, party, or other entity seeking to enforce such lien complies with the procedural rules relating to the filing of the lien in this state. The state agency, party, or other entity seeking to enforce such lien shall send a certified copy of the support order with all modifications, the notice of lien prescribed by 42 U.S.C. 652(a)(11) and 42 U.S.C. 654(9)(E), and the appropriate fee to the clerk of the district court in the jurisdiction within this state in which the lien is sought. Upon receiving the appropriate documents and fee, the clerk of the district court shall accept the documents filed and such acceptance shall constitute entry of the foreign support order for purposes of this section only. Entry of a lien arising in another state pursuant to this section shall result in such lien being afforded the same treatment as liens arising in this state. The filing process required by this section shall not be construed as requiring an application, complaint, answer, and hearing as might be required for the filing or registration of foreign judgments under the Nebraska Uniform Enforcement of Foreign Judgments Act or the Uniform Interstate Family Support Act;

(3) Child support and spousal support judgments shall cease to be liens on real or registered personal property ten years from the date (a) the youngest child becomes of age or dies or (b) the most recent execution was issued to collect the judgment, whichever is later, and such lien shall not be reinstated;

(4) Alimony and property settlement award judgments, if not covered by subdivision (3) of this section, shall cease to be a lien on real or registered personal property ten years from the date (a) the judgment was entered, (b) the most recent payment was made, or (c) the most recent execution was issued to collect the judgment, whichever is latest, and such lien shall not be reinstated;

(5) Whenever a judgment creditor refuses to execute a release of the judgment or subordination of a lien as provided in this section, the person desiring such release or subordination may file an application for the relief desired. A copy of the application and a notice of hearing shall be served on the judgment creditor either personally or by registered or certified mail no less than ten days before the date of hearing. If the court finds that the release or subordination is not requested for the purpose of avoiding payment and that the release or subordination will not unduly reduce the security, the court may issue an order releasing real or personal property from the judgment lien or issue an order subordinating the judgment lien. As a condition for such release or subordination, the court may require the posting of a bond with the clerk in an amount fixed by the court, guaranteeing payment of the judgment;

(6) The court may in any case, upon application or its own motion, after notice and hearing, order a person required to make payments to post sufficient security, bond, or other guarantee with the clerk to insure payment of both current and any delinquent amounts. Upon failure to comply with the order, the court may also appoint a receiver to take charge of the debtor's property to insure payment. Any bond, security, or other guarantee paid in cash may, when the court deems it appropriate, be applied either to current payments or to reduce any accumulated arrearage;

(7)(a) The lien of a mortgage or deed of trust which secures a loan, the proceeds of which are used to purchase real property, and (b) any lien given priority pursuant to a subordination document under this section shall attach prior to any lien authorized by this section. Any mortgage or deed of trust which secures the refinancing, renewal, or extension of a real property purchase money mortgage or deed of trust shall have the same lien priority with respect to any lien authorized by this section as the original real property purchase money mortgage or deed of trust to the extent that the amount of the loan refinanced, renewed, or extended does not exceed the amount used to pay the principal and interest on the existing real property purchase money mortgage or deed of trust, plus the costs of the refinancing, renewal, or extension; and

(8) Any lien authorized by this section against personal property registered with any county consisting of a motor vehicle or mobile home shall attach upon notation of the lien against the motor vehicle or mobile home certificate of title and shall have its priority established pursuant to the terms of section 60-164 or a subordination document executed under this section.

Source:

Laws 1972, LB 820, § 25

Laws 1975, LB 212, § 2

Laws 1980, LB 622, § 3

Laws 1985, Second Spec. Sess., LB 7, § 19

Laws 1986, LB 600, § 9

Laws 1991, LB 715, § 3

Laws 1993, LB 500, § 52

Laws 1993, LB 523, § 3

Laws 1994, LB 1224, § 47

Laws 1997, LB 229, § 19

Laws 1999, LB 594, § 7

Laws 2004, LB 1207, § 29

Laws 2005, LB 276, § 100

Cross References:

Nebraska Uniform Enforcement of Foreign Judgments Act,see section 25-1587.01.

Uniform Interstate Family Support Act,see section 42-701.

Annotations:

This section is applicable to monetary property settlement judgments. Lacey v. Lacey, 215 Neb. 162, 337 N.W.2d 740 (1983).

This section refers to judgment creditors for support in cases of legal separation, judgment creditors for temporary or permanent support payments or alimony, judgment creditors for child support, and judgment creditors for alimony. Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980).

In the absence of any evidence that a person ordered to pay child support was materially prejudiced by delay in assertion of claim for child support, remarriage of the parties did not operate to prohibit the party for whose benefit child support was ordered following the first divorce from instituting action following the second divorce to collect arrearages for child support due between date of the first divorce and subsequent remarriage. Scheibel v. Scheibel, 204 Neb. 653, 284 N.W.2d 572 (1979).2. Authority of court

An order entered pursuant to subsection (5) of this section, requiring a person to post sufficient security, is a somewhat extraordinary and drastic remedy, and such order should be invoked only when compelling circumstances require it. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997).

Child support payments are a vested property right of the payee as each accrues, and a court, therefore, may not forgive or modify past-due child support, but may modify the amount of future payments. Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991).

This section gives to a court which has entered a judgment for property division payable in installments, authority to release or subordinate the judgment under the conditions prescribed in the statute. Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980).

It is not the court's prerogative to determine what method or means should be used in placing security for child support payment. Casselman v. Casselman, 204 Neb. 565, 284 N.W.2d 7 (1979).

An order requiring security to be given and appointing a receiver are somewhat extraordinary and drastic measures and such an order should be made only when it appears to the court that such an order is necessary to assure the payment of alimony and child support as decreed. Casselman v. Casselman, 204 Neb. 565, 284 N.W.2d 7 (1979).3. Lien

Alimony judgments are liens, and if the judgments precede a mortgage and are recorded, they will have priority over that mortgage. McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993).

A judgment is not a lien upon the judgment debtor's equitable interest in real estate until the commencement of the creditor's bill to subject it to payment of the judgment or until execution is levied upon the interest of a judgment debtor who is in possession of the real estate in which he has the equitable interest. Action Realty Co., Inc. v. Miller, 191 Neb. 381, 215 N.W.2d 629 (1974).

Pursuant to subsection (2) of this section, the cessation of a lien under this section does not render a child support judgment dormant. Freis v. Harvey, 5 Neb. App. 679, 563 N.W.2d 363 (1997).4. Miscellaneous

Fees awarded under this section are the property of the client, not the attorney, and the client may execute a release of the judgment awarding fees. Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980).

~Revised Statutes Supplement, 2006