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Nebraska Commission on Unauthorized Practice of Law Ph: 402.475.7091
635 S. 14
th
St. #200 Fax: 402.475.7098
PO Box 81809 www.nebar.com
Lincoln, NE 68501 ssh[email protected]
Commission on the Unauthorized Practice of Law
Title Companies and Child Support Judgment Liens
Advisory Opinion 2013-001
The Commission on Unauthorized Practice of Law (UPL Commission) received a request for an advisory
opinion from an attorney on behalf of a Nebraska title company. This opinion is issued pursuant to Neb.
Ct. R. 3-1012(D).
Does the preparation of the following forms constitute the unauthorized practice of law (UPL)?
1- Release of Child Support Judgment
2- Subordination of Child Support Judgment
The sample documents provided for analysis with this opinion are almost identical, with differences in
language that distinguish the purpose as a “release” or “subordination”. They are formatted for filing
with a heading, caption, and designated space for notarization. There is a blank space for the
description of the property. Additionally, there is text regarding the payment status of the lien and a
disclaimer regarding the judgment lien holder’s rights “under Nebraska Law regarding the terms and
conditions of the Decree other than as provided therein”. There is a statement at the bottom of the
form regarding the inability of the title company to “legally” give advice “regarding the signing of this
document”. (See Exhibits A & B)
Yes, the completion of the “Release of Child Support Judgment” and “Subordination of Child Support
Judgment” constitute UPL. Neb. Ct. R. 3-1004(A) provides exceptions and exclusions to activities by title
companies and other nonlawyers that are not prohibited under certain conditions. This opinion will
explain why the conditions are not met here.
§ 3-1004. Exceptions and exclusions.
Whether or not they constitute the practice of law, the following are not prohibited:
(A) Title insurance companies authorized to do business in the State of Nebraska and their licensed
agents, real estate rental agencies, licensed real estate brokers and their affiliated licensees, and
employees of such entities, preparing certain documents that would normally involve the practice of law
subject to the following:
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(1) The transaction involved is merely incidental to their lawful business as a title insurance company
or licensed agent thereof, rental agency, real estate broker, or affiliated licensees of a real estate
broker.
(2) The transaction arises in the usual course of business for the title insurance company issuing title
insurance, the rental agency as agent for the lessor or the lessee, the broker who is the listing or
selling broker, or the real estate licensee affiliated with the broker.
(5) In closing a real estate sale, licensed real estate brokers and title insurance companies and their
licensed agents may prepare deeds, releases which do not affect judgment liens, deeds of
reconveyance, title affidavits, closing statements, and related documents.
(6) The documents referred to in §3-1004 (A)(3), (4) and (5) to be prepared by nonlawyers shall be on
standardized forms which may contain various blanks to be filled in, the completion or selection
of which does not require the knowledge, judgment, or skill of one trained as a lawyer.
(7) No counsel or advice shall be given with respect to the meaning, validity, or legal effect of the
document or regarding the rights and obligations of the parties.
The process for obtaining the release of a child support judgment lien and for subordination of a child
support judgment lien is governed by Neb. Rev. Stat. 42-371 which provides in part:
Under the Uniform Interstate Family support Act and sections 41-347 to 42-381, 43-290, 43-512 to 43-
512.10, 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;
(2) The judgment creditor may execute a partial or total release of the judgment or 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 may, if all such payments are current and not
delinquent or in arrears, be released or subordinated by a release or subordination document
executed by the judgment creditor, and such document 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 is
prima facie evidence that such payments are in fact current.
(3) If a judgment creditor refuses to execute a release of the judgment or subordination of a lien as
provided in subdivision (2) of this section or the support payments are not current, the person
desiring such release or subordination may file an application for the relief desired in the court
which rendered the original judgment. 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 later than
ten days before the date of 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
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judgment lien or issue an order subordinating the judgment lien . . . (F) or purposes of this
section, a current certified copy of support order payment history from the title IV-D Division of
the Department of Health and Human Services setting forth evidence that all support payments
are current is prima facie evidence that such payments are in fact current and is valid for thirty
days after the date of certification.
Under R. 3-1004 (A) (5) title companies may not prepare documents effectuating releases or
subordination of child support liens. The release or subordination of a child support judgment lien does
“affect the judgment lien”. The word ‘affect’ is “(n)ot a legal term of art, but a word of ordinary English.”
Nebraska Power Co. v. Omaha Ice & Cold Storage, Inc., 147 Neb. 324 (Neb. 1946). “’Affect’ means to ‘act
upon; influence; change…often used in the sense of acting injuriously upon persons and things’.” 147
Neb. 324,328, citing Black’s Law Dictionary, 3d Ed., p. 72. A judgment lien attaches to real property
“within the county where the judgment was rendered “ , “from the day on which such judgments are
rendered”. Neb. Rev. Stat. § 25-1504. A child support judgment provides future protection for the
judgment lien holder as “a lien not only for past due installments but also as security for installments to
fall due in the future.” McCook Nat. Bank v. Myers, 243 Neb. 853 at 868 (1983) Citing Action Realty Co.,
Inc. v. Miller, 191 Neb. 381, 385-86. The release of a child support judgment lien extinguishes that lien,
thereby disabling the judgment lien holder from using the property to enforce the judgment for any
future payments. Neb. Rev. Stat. 42-371(2).
Subordination is “The act or process by which a person’s rights are ranked below the rights of others”.
Black’s Law Dictionary, 5
th
Ed., p. 1279. Therefore, the subordination of a child support lien reduces its
impact by placing the judgment lien holder’s rights in an inferior position to that of another. The effect
on the judgment lien caused by either a release or subordination is potentially injurious to the lien
holder if the judgment debtor ceases payments in the future. For R.3-1004(A)(5) to apply as an
exception, releases prepared by title companies (and other specified nonlawyers) must not affect
judgment liens. Therefore, the preparation of a release or subordination of a child support judgment lien
by title companies is UPL.
For the foregoing reasons, the preparation of documents for the release or subordination of child
support judgment liens constitutes the unauthorized practice of law by title companies.
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IN THE DISTRICT COURT OF _______________ COUNTY, NEBRASKA
__________,
)
__________
)
)
-vs-
)
)
RELEASE OF
CHILD SUPPORT JUDGMENT
__________,
)
__________
)
__________, the __________, hereby:
1. States and affirms that all payments for Child Support due from the Respondent pursuant
to the terms of the Decree entered herein are current.
2. Releases the lien for Child Support judgment on the following described property:
__________ shall not be deemed to have waived any rights available to __________ under Nebraska
Law regarding the terms and conditions of the Decree other than as provided herein.
Dated this ___________ day of _____________, 20___.
By:__________________________
__________
,
State of ____________________
County of ____________________
§
Subscribed and sworn to before me, a Notary Public by __________ on this ____ day of
______________________, 20___.
By:__________________________
Notary Public
The attached document is acceptable to Nebraska Title Company and will satisfy requirement No. ____
on Schedule B-I of Commitment No. ________________. The staff of Nebraska Title Company cannot
legally give you advice regarding the signing of this document. If you have any questions, please consult
your attorney before signing and returning this document to us.
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IN THE DISTRICT COURT OF __________________ COUNTY, NEBRASKA
__________,
)
__________
)
)
-vs-
)
)
SUBORDINATION OF
CHILD SUPPORT JUDGMENT
__________,
)
__________
)
__________, the __________, hereby:
3. States and affirms that all payments for child support due from the Respondent pursuant
to the terms of the Decree entered herein are current.
4. Subordinates the lien for child support judgment on the following described property:
To the Deed of Trust executed on the _____________ day of ________________, ________, in
the stated amount of $__________, in favor of ____________________, recorded
________________ as Inst. No. ____-_______; records of _____________ County, Nebraska.
__________ shall not be deemed to have waived any rights available to __________ under Nebraska
Law regarding the terms and conditions of the Decree other than as provided herein.
Dated this ___________ day of _____________, 20___.
By:__________________________
__________
,
State of ____________________
County of ____________________
§
Subscribed and sworn to before me, a Notary Public by __________ on this ____ day of
______________________, 20___.
By:__________________________
Notary Public
The attached document is acceptable to Nebraska Title Company and will satisfy requirement No. ___ on
Schedule B-I of Commitment No. _________. The staff of Nebraska Title Company cannot legally give
you advice regarding the signing of this document. If you have any questions, please consult your
attorney before signing and returning this document to us.