UPDATE: 2 Days after this blog was posted and sent to the 22nd JDC Clerk of Court’s office, the recorder mysteriously and without notice to us changed their minds and cancelled the lien, apparently deciding they were wrong.
It’s a pleasure to work with many clerk of court offices. At Levelset, we should know. We work with hundreds of recorder offices across the United States. I encountered an attitude at the St Tammany Parish Clerk of Court yesterday, however, that I’m compelled to write about.
This story should be a warning to mechanics lien claimants everywhere because you never know what you’re going to get with a recording office, and if you’re filing a mechanics lien at the last moment, it could get delayed because of an arbitrary and capricious clerk decision. It’s unfair, it’s frustrating, and its disgusting, but there’s usually very little you can do to turn back the clock and force your lien to be filed on time.
Fortunately, in this case, there isn’t a deadline problem. Nevertheless, I hope this post can serve as a warning or at least a cry for help heard by some recorders out there. It’s just not fair to make decisions based on what you feel is the law, or based upon something you’re too lazy to research. If you’re going to reject a document, you should know the rejection is legally substantiated. That’s just fairness. That’s just doing your job.
So, here is what happened.
Jeanne Roques Rejects A Simple Lien Cancellation Based On Law She Cannot Cite Or Recall
Jeanne Roques is the department head of “Land Records” at the 22nd Judicial District Court Clerk of Court’s Office. She is a licensed attorney in the state of Louisiana (like me).
Levelset sent off a simple cancellation request to cancel a mechanics lien (called a Statement of Claim and Privilege in Louisiana). The document was signed by an employee of our company Levelset, as an appointed and authorized agent for the company requesting the cancellation. This is a standard practice of Levelset. Whenever the law allows an instrument to be filed by the claimant’s agent, our clients appoint Levelset as their agent to sign the instrument.
Jeanne Roques, the St Tammany clerk of court, refused to cancel the Louisiana mechanics lien because it was not signed by the owner or officer of the company requesting the cancellation.
I personally spoke to Ms. Roques about her decision, and asked her to explain why she refused to cancel the document. I asked her to identify for me what statute, rule or administrative provision required an owner or officer of a company to be the party who signed a lien cancellation. Ms. Roques’ response was troubling.
[pullquote style=”left” quote=”dark”]It appeared Ms. Roques rejected the document without knowing or consulting the law she apparently relied upon.[/pullquote] First, she could not point me to any such provision and instead asked me to point to the provision that authorized it. Such a request is clever, and maybe a fun game for a bureaucrat, but of course it makes no sense. Essentially, Ms. Roques was asking me to cite a provision that I alleged did not exist in the first place. I contended a cancellation could be signed by an agent because an agent can act for a principal as a matter of law, unless there is a statute prohibiting the same. So, of course, there would be no need for a statute to specifically announce that something permitted as a matter of law was not prohibited. It is not prohibited as a matter of general law.
Second, when I pressed her on the reason why she was rejecting the document, Ms. Roques stated that she “had not memorized the law,” thus excusing her from being able to provide me the source of her rejection.
Wow! This revealed to me that Ms. Roques apparently rejected the document and was arguing with me that the document was improper all without knowing or consulting the law she apparently relied upon.
Why Jeanne Roques’ Decision Is Wrong
Laws of agency exist in every state. These laws allow a person or business entity – a “principal” – to confer authority on another person to transact one more affairs for the principal. In Louisiana, the agent is referred to as the “mandatary.” La. C.C. art 2989. Unless the law otherwise restricts the transaction, it is a general rule in Louisiana and elsewhere that a person or business entity may appoint any other person or business entity to act as their agent to transact for the principal person or entity.
Although Levelset is conferred “express authority” to execute documents like the lien cancellation in question, this practice is over-kill as the Louisiana articles enumerate only 7 instances where express authority is required to act as a principal’s agent; and signing a lien cancellation is not one of them. La. C.C. art 2996, et seq.
The legal provisions setting forth the requirements for a lien cancellation are equally supportive of the proposition that agents can sign lien cancellations on behalf of a principal.
[pullquote style=”right” quote=”dark”]In Louisiana, the clerk of court is mandatorily required to cancel a mechanics lien when requested.[/pullquote] In Louisiana, the clerk of court is mandatorily required to cancel a mechanics lien when requested. This requirement arises from two legal provisions. First, La. C.C. art 3366 states the recorder of mortgages shall cancel a lien when the cancellation requires is “signed by the person requesting the cancellation.” Second, La. R.S. §9:5169 requires such cancellations to include an authentic act “signed by the obligee of record.”
Neither statute enumerates a specific restriction as to who can sign the document on behalf of the “person,” which of course can be an individual person or a business entity.
St. Tammany’s Ms. Roques is asserting that only a “corporate officer” of the business entity requesting the cancellation can sign the document. This specific restriction is nowhere to be found in the two statutes above-mentioned, neither are there any cases making this requirement. In sum, Louisiana law does not require lien cancellations to be signed by a corporate officer.
Even St Tammany Parish’s Official Forms Acknowledge A Representative Can Sign A Cancellation
Care to know the icing on the cake here?
It’s a common practice for clerks and recorders to provide the general public with frequently used forms. Knowing this, I wondered if St. Tammany Parish had a lien cancellation form available for us on its website and whether the parish required an officer to sign that form. After all, I presumed the form would have been prepared with C.C. art 3366 and R.S. §9:5169 in mind.
St. Tammany Parish did publish such a form. You can download it from our server here. Pay special attention to the introduction paragraph where the signing party appears in the document:
…personally came and appeared: ________, represented herein by __________, Title __________, it’s duly authorized representative, who after being first sworn declared….
This official parish form even acknowledges that an authorized representative may appear for the party requesting the cancellation.
Why Do Recorders Do This And What It Means To Claimants Everywhere
I have a relative who hasn’t had the occasion to deal with government entities much, and he sees the world through rose-colored glasses sometimes. Presuming that people always make fair and just choices – especially in the judicial system – he would be confused as to why recorder personnel would make these type of decisions and why there weren’t repercussions for this type of action. The answer, unfortunately, is simply that I don’t know.
I’m sure there are some type of psychological explanations for why bureaucrats take up personal crusades against certain parties who come to them to get a rubber stamp, or why they make capricious decisions like this.
In Jeanne Roques and the St Tammany Clerk of Court’s case, I’m not sure what the explanation would be. Recorders are supposed to be rubber stamps. They aren’t supposed to make legal determinations as to the legal sufficiency of a particular document. Anyone who has contacted the clerk’s office and asked a legal question has probably gotten the “we can’t give legal advice” line. It’s true. They can’t give legal advice.
It seems bizarre though that they can have an attorney reviewing documents and making arbitrary legal determinations as to what is and what is not legally sufficient about a submitted document; like a lien cancellation. What is more bizarre is that the recorder would make a determination that the document is not legally sufficient based on some random requirement without any support in the law. Where is this requirement coming from? Why would the recorder’s office cling so sternly to it?
Again, it’s hard to know. There is a lesson here for lien claimants everywhere, however, and that’s why I write this article. It’s a lesson I alluded to at the very beginning of the post. I’ve written two blog posts in the past that refer to this lesson:
- Five Reasons To File Your Mechanics Lien As Early As Possible
- 3 Things That Can Go Wrong When You Wait Until The Last Minute To File Your Mechanics Lien