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Forcing the Release of an Improper Real Estate Lien

Liens may be imposed on your property for a variety of reasons. You may have permitted certain liens to be filed, such as your mortgage. Other liens—such as judgment liens, mechanic’s liens, or tax liens—are filed on your property without your consent.  Sometimes you will disagree with a non-consensual lien.

Arizona law provides several ways to remove property liens. Whether a lien was filed in error, is a matter of dispute, or simply was not withdrawn when paid, you options to clear title when it cannot be accomplished cooperatively are generally a quiet title action or a special action under A.R.S §33-420.

Quiet Title Actions in Arizona

A.R.S § 12-1101 authorizes a quiet title action can by anyone having an interest in real property against anyone claiming an adverse interest. A quiet title action is typically brought to simply clear the title.  It results in a judgment barring the named defendant, usually the lienholder, from ever again asserting the adverse interest.

However, the plaintiff should be careful about going directly to a lawsuit.  If the defendant appears in the lawsuit, acknowledges the lien is an error and disclaims all of their rights to any interests in the title adverse to the plaintiff the defendant is entitled to recover costs from the plaintiff. A.R.S §12-1103(A).

A plaintiff can avoid this problem by sending a demand letter to the defendant that satisfies particular statutory requirements. The letter must request the defendant disclaim their interest in the title, and give them twenty days to comply. If a defendant fails to comply, then they will not be entitled to costs if they later disclaim their interest.  The letter also trigger the possibility for the plaintiff to recover attorney fees.  A.R.S. § 12-1103(B).

A party filing a quiet title action may need to file a lis pendens, which effectively notifies all third parties that there is a dispute related to the title. A lis pendens should be filed in situations where an adverse title interest could potentially be transferred to a third party. If a lis pendens is filed, then all future recipients of a title interest would be on notice of the pending claims, and in most circumstances will hold any transferred interest subject to the outcome of the quiet title lawsuit.

A quiet title action can be barred by the statute of limitation in some cases. The general rule is that the statute of limitations does not run against a plaintiff that holds undisturbed possession of the disputed property. However, those who claim an interest, but do not hold undisturbed possession of the property, will be subject to the applicable statute of limitations.

In Rogers v. Bd. of Regents of the Univ. of Ariz., 233 Ariz. 262, 311 P.3d 1075, (App. 2013), the Board of Regents of the University of Arizona (ABOR) constructed a gate on its land that blocked the plaintiff’s access to his property. The plaintiff sought an action to quiet title, but was barred by the one-year statute of limitations for actions against public entities under A.R.S. §12-821.

The court stated that because the plaintiff was asserting an adverse claim against ABOR’s title, and he was not in possession of the disputed property, he was subject to the statute of limitations and had to file within the limitation period. This distinction makes it critical to file a quiet title action as promptly, particularly if you are not in possession of the disputed land or if there is an open and known dispute of your rights. On the other hand, the statute of limitations may also provide property owners with an affirmative defense against adverse claims in their property that are old and have become stale.

Additional Claims Under A.R.S §33-420

An additional method for property owners to remove liens can be found in A.R.S. § 33-420. This statute has the added benefit of allowing the aggrieved party to seek damages.  Persons who file liens that are forged, groundless, contain material misstatements or false claims, or are otherwise invalid, can face a liability of $5,000 or “treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.”

The statute provides another sanction for those who fail to comply with a demand letter requesting that a wrongful lien be released. The defendant will be liable for $1,000 or treble actual damages, plus attorney fees and costs, if he or she fails to comply with the demand letter within twenty days.

These penalties can often be enough to convince a wrongful lienholder to either release the lien or negotiate a settlement. Depending on the situation, a demand letter under A.R.S. §33-420 or quiet title demand letter may all that is needed to get a lienholder to release their interest in your title.  If a formal demand does not resolve the matter, then the statutes provide a roadmap for pursuing necessary litigation.

Source: Chernoff Law Firm

John T. Lotardo, aka the “TITLEMAN”™, is Senior Vice President, Director of Operations and National Commercial Counsel for Commonwealth Land Title Insurance Company. He is the former State Counsel and Senior Underwriter for First American Title Insurance Company for the states of Arizona and Nevada. Prior to that, Mr. Lotardo was senior vice president and general counsel for Stewart Title & Trust of Phoenix Inc., as well as state underwriting and claims counsel for Stewart Title Guaranty Company. As an Arizona licensed attorney, Mr. Lotardo's practice entails all aspects of real estate, title/escrow and corporate operations. Mr. Lotardo received his Bachelor of Arts with honors and academic distinction from C.W. Post, Long Island University and his Juris Doctorate degree from Arizona State University.

Mr. Lotardo, an active member of the State Bar of Arizona, is a frequent speaker, instructor, retained expert and guest commentator for numerous Escrow, Banking, Realtor® & Title Associations such as ALTA, AEA, ASEA, NEA, AAR, SAR, AMLA, AMBA, among many others. Being past-President of both the Land Title Association of Arizona and the Arizona Trustee Association, he has been a member of many real estate organizations, settlement groups, bankruptcy, lending, foreclosure, legislative, judiciary and corporate organizations locally and nationally. He is a 2016 inaugural recipient of the Arizona Land Title Professional designation and regularly a member on the Arizona Association of Realtors’ Residential & Commercial Contract Workgroups and the Education Advisory Committee for the Department of Real Estate. He is recognized with the Excellence in Underwriting and IMD Hero monikers and a National Title Professional by the ALTA.

Mr. Lotardo is author of numerous articles including the popular “Ask the TITLEMAN”™, which can be found on his website www.askthetitleman.com as well as other sites. He has been a volunteer for Lawyers-On-Call, a public service partnership with Channel 12 News as well appearing on Channel 3’s news show: Money Matters. Being a guest commentator for many publications including the Arizona Republic, InBusiness Magazine, The New Times, among others, Mr. Lotardo has also appeared on Talk Radio for KFNX 1100, KFNN 1510 as well as Java with John. He had been the Editor for the Real Property Journal for the State Bar of Arizona, past-Chair for the Arts and Culture Commission for the City of Phoenix, past-participant for the State Bar’s Speakers Bureau, Mentor for the Women Law Students' Association, and the Arizona Business Roundtable- an alliance organization between the business community and the Judiciary. Former Governor Napolitano appointed him to the Electronic Recording Commission to develop statewide protocols. He is a "Who's Who" in the legal community as part of The Business Journal's Leading Lawyers Program, the Strathmore’s Who’s Who, as well as the Cambridge Who's Who Registry demonstrating leadership and achievement in the field of real estate. Currently, he is Immediate-Past Chair and Executive Council Member of the Real Property Section, Executive Council Member of the In-House Counsel Section of the State Bar of Arizona as well as Chair of the Real Estate Advisory Board for the Maricopa County Recorder & recipient of the Black Knight-Ernst Scholarship with the Property Industry Records Association. Lastly, he Chair of the LTAA Mentorship Program and is a Business Advisory Council member for the Arizona Secretary of State.

Jim began his career in the title and escrow industry as Associate Counsel for United Title Agency in 1987. In July 1997 he was hired to help start Capital Title Agency in Maricopa County. He served as Senior Executive Vice President, General Counsel and Chief Title Officer. In January 2009, Jim went on to become President/Operating Member and co-owner of American Title Service Agency where he is currently employed. Jim is past President, a current Board Member and past legislative committee member of Land Title Association of Arizona. He has been actively involved with the LTAA for over thirty years. Jim is a graduate of Michigan State University and The Thomas M. Cooley Law School.

Shaunna Terry serves as the Agency Sales Manager for Stewart Title Guaranty, responsible for the Arizona and Nevada markets. In this role, she oversees the independent title agent network of Trusted Providers, and all products and services offered to the Stewart Agency network.

Shaunna has been with Stewart since 2018, where she first joined in Austin, Texas as the Sales Manager for their Direct Operations, before relocating to Phoenix, AZ in 2022.

Prior to her role(s) with Stewart Title, Shaunna worked for over 26 years in the Real Estate industry, serving in all capacities from Realtor, Broker/Owner of a national franchise to V.P. of a large Brokerage serving Austin and San Antonio markets.  Using knowledge gained in real estate, combined with experience in business development, Shaunna serves her agents as a reliable source when it comes to navigating the changing waters of the title industry.

Sharon Ochoa Schoberth is semi-retired and currently working at Title Resources Group in their new onshore Arizona production unit, training on Arizona’s specific laws, procedures, and concerns.  She has held numerous positions during the course of her career including underwriter in a national commercial services unit, Chief Title Officer for several companies and Title Department Manager for the last 15 years.

She created an examiner training program at Magnus Title, enabling junior examiners to increase their knowledge as well as bringing in people with no previous title knowledge and training them to become examiners.

Vicky Castillo is the Arizona State Underwriter for Old Republic Title Insurance Company where she is dedicated to providing timely, solution-oriented guidance and assistance to our valued agents.  She began her career in the Title Industry as a night poster at Transamerica Title while attending Arizona State University.  Over the course of her career, she has held numerous positions including, Chief Title Officer, State Chief Title Officer, Agency Underwriter, Title Operations Manager, Back Office Escrow Manager and Title Operations Consolidation specialist.

Vicky is a Past President of the Land Title Association of Arizona and a member of the Arizona Escrow Association and the Arizona Trustees Association.  She has served as Chair and Co-Chair for the Education Committee for the Land Title Association of Arizona more than once and is passionate about training and growing our future successors.

Tom is vice president of Pioneer Title Agency.

He began his career in 1977 with Commonwealth Land Title Insurance Company. Later working at several national title insurance companies as well as privately held title agencies. In 1988 he joined Grand Canyon Title Agency, where he was a principle and served as executive vice president for eleven years and then became president. He founded Westland Title Agency in 2001 as president and chief operating officer until 2010 which now operates as Empire West Title Agency. Finally, in 2014 he started with Pioneer Title. His core values align perfectly with those of Pioneer Title, believing in family and community involvement. During his more than forty-five year career in the title industry he has performed many different duties, working in title, sales coaching & training and management. Some of his achievements include the Phoenix Business Journal naming Westland Title one of the Best Places to Work three consecutive years. While at Pioneer Title the company has experienced unparalleled growth and has received the ACE Award for corporate philanthropy and named one of the Most Admired Companies in Arizona by Big AZ Media. He has been active in the Land Title Association of Arizona since 1990 and received the professional designation of Arizona Land Title Professional. Tom served on the Executive Committee of the LTAA from 2018 through 2021 and as president in 2020. He was also the Arizona State TIPAC Trustee for the American Land Title Association in 2022. Tom is a native Phoenician and married to his wife Karen. They recently celebrated their 45th anniversary. They enjoy spending time with their two daughters Sarah and Kelly, and five grandchildren. In his spare time, he enjoys hiking, camping, hunting, fishing and traveling with his family and friends.

A 40-year plus veteran in the escrow industry, Leslie Banes is a Certified Senior Escrow Officer, Certified Escrow Instructor, Senior American Settlement Industry Professional and Land Title Professional Designation and currently serves as Senior Escrow Advisory for Stewart Title.  In 2021, Leslie was honored to be the first recipient of the Leadership Award from American escrow Association.  

Well known for her dedication to the industry, Ms. Banes has been actively involved in industry associations at both the national and state level.   She is a past first vice president, second vice president and treasurer for the American Escrow Association and currently serves on the Closing Instructions Development Workgroup, Remote Online Notary Workgroup and Title Insurance Section Workgroup for MISMO (Mortgage Industry Standards Organization).    She is an active member of the Arizona State Escrow Association’s education and industry liaison committees chaired the committee that produced the ASEA Escrow II book and the 2016 AEA Annual Conference. Often called upon to present classes to fellow escrow officers, lenders and realtors, Ms. Banes has also chaired the Industry Partners Conference and planned the educational sessions for five ASEA annual escrow conferences and the 2014 AEA annual conference.  Ms. Banes has three children and two grandchildren and lives in Gilbert, Arizona with her husband Phil. An Arizona native, she graduated from Northern Arizona University with a bachelor’s degree in Journalism. She can be contacted at 602-621-3542 or leslie.banes@stewart.com.

A 41 year veteran of the Escrow and Title Insurance industry, Danny Sullivan began his career in Sales and Marketing. Growing market share and building a strong and loyal client base were his priorities. He enjoyed success by developing solid relationships and keeping "Service" at the forefront. During the last 24 years he has held management positions including, Vice President, President and Chief Operating Officer. Recruiting, expansion, building and training was his focus. He's never considered that people work for him but instead, work with him.

Danny served as President of the Land Title Association of Arizona in 2006, and holds the designation of "Arizona Land Title Professional". In 2020, LTAA awarded Danny "Honorary Life Member". Danny retired in 2020 from Yavapai Title Agency in Prescott, where he spent the last 6 years of his career. Prior to that, he lived and worked in the Phoenix metro market. His involvement in LTAA has continued since his retirement.

Danny believes we are made stronger by the difficulties we encounter, and that we can find great opportunities in what challenges us, individually and as an industry.

Roy V. Poll

Westcor Land Title Insurance Company

1873 S. Bellaire St., Ste 630

Denver, CO 80222

(480) 306-9661

roy.poll@wltic.com

 

Roy V. Poll is Vice President at Westcor Land Title Insurance Company. He manages the Southwest Region and National Major Accounts.

Roy obtained a B.S. in Economics from Weber State University (1996), and a Master of Business Administration and Law Degree from Texas Tech University (1999). During law school, Roy worked for Stewart Title Company, was an Intern for Chief Judge Stanton M. Taylor of the Utah Second District Court, and a law clerk for Perdue, Brandon, Fielder, Collins & Mott, LLP. After graduating, Roy moved to Houston, Texas and worked as a tax consultant for Arthur Anderson, LLP. He returned to the title industry in 2000 as underwriting and claims counsel for Attorneys Title Guaranty Fund, Inc. where he worked on several large title agent defalcations. Roy later became a principal in the law firm Griffiths, Turner, & Poll and the title agency GT Title Services. Prior to joining Westcor in 2021, Roy held numerous positions with National Title insurance companies including: Western Division Agency Development for Old Republic National Title; Executive Vice President of Western National Title Insurance Company; Agency Manager, Senior Underwriting Counsel, and Sales Manager for the Southwest Region Agency Services group of First American Title; and Western Region Agency Manager, and Regional Underwriting Counsel for Fidelity National Title Insurance Company where he served as the Company’s agency manager for twelve western states.

Roy is actively involved in title industry organizations. He has served on the Executive Board of the Utah Land Title Association and as PAC Chairman; the LTAA Legislative Committee, the Executive Board and was President 2018-2019; the ALTA Best Practices Task Force, Government Affairs, SLRAC, and Education Committees. Roy is also a member of the Texas and Utah State Bar.