I have an issue involving my client’s construction lien and mortgage foreclosure suit that was filed years before my client was even hired.  Here is the chronology of events:

3/30/11 --- mortgage foreclosure filed
4/11/11 --- notice of lis pendens recorded for above suit
6/3/13 --- owners sign contract with my client
8/29/13 --- my client’s construction lien is recorded
11/13/13 --- my client’s lawsuit is filed and notice of lis pendens recorded
1/22/14 --- Final Judgment entered in mortgage foreclosure case
3/17/14 --- public sale in mortgage foreclosure case

I realize that the notice of lis pendens filed in the mortgage foreclosure case (to quote Leiby) “cuts off the rights of any person claiming any interest or lien in the property by virtue of a claim recorded after the recording of the notice of lis pendens, except for any holder of a lien who intervenes within 30 days of the recording of the notice of lis pendens.”  My client could have discovered the notice of lis pendens filed in the mortgage foreclosure case because it’s a matter of public record but we all know that our clients never look for such things.  At any rate, the notice of lis pendens filed in the mortgage foreclosure case was recorded long before my client performed any work and recorded its lien so they had no opportunity to intervene.  Obviously, my client was not a Defendant in the mortgage foreclosure case.

Is my client’s only relief a claim for breach of contract?  What about a fraud claim?  I think the answers are “yes” and “yes.”  The owners knew they were in the middle of a mortgage foreclosure so they likely knew they were making improvements to a home they were going to lose.  So then it’s likely that they never had any intention of paying my client.

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com

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The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Maybe a civil thief, but a great example of (1) filing early and (2) ordering a title report (at least an “O and E” before recording a lien (or thereafter if not enough time before).

Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, July 03, 2014 1:10 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

I have an issue involving my client’s construction lien and mortgage foreclosure suit that was filed years before my client was even hired.  Here is the chronology of events:

3/30/11 --- mortgage foreclosure filed
4/11/11 --- notice of lis pendens recorded for above suit
6/3/13 --- owners sign contract with my client
8/29/13 --- my client’s construction lien is recorded
11/13/13 --- my client’s lawsuit is filed and notice of lis pendens recorded
1/22/14 --- Final Judgment entered in mortgage foreclosure case
3/17/14 --- public sale in mortgage foreclosure case

I realize that the notice of lis pendens filed in the mortgage foreclosure case (to quote Leiby) “cuts off the rights of any person claiming any interest or lien in the property by virtue of a claim recorded after the recording of the notice of lis pendens, except for any holder of a lien who intervenes within 30 days of the recording of the notice of lis pendens.”  My client could have discovered the notice of lis pendens filed in the mortgage foreclosure case because it’s a matter of public record but we all know that our clients never look for such things.  At any rate, the notice of lis pendens filed in the mortgage foreclosure case was recorded long before my client performed any work and recorded its lien so they had no opportunity to intervene.  Obviously, my client was not a Defendant in the mortgage foreclosure case.

Is my client’s only relief a claim for breach of contract?  What about a fraud claim?  I think the answers are “yes” and “yes.”  The owners knew they were in the middle of a mortgage foreclosure so they likely knew they were making improvements to a home they were going to lose.  So then it’s likely that they never had any intention of paying my client.

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com

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What about equitable relief against the lender such as unjust enrichment?

Sent from my iPhone

On Jul 3, 2014, at 3:18 PM, "Fred Dudley" <dudley@mylicenselaw.commailto:dudley@mylicenselaw.com> wrote:

Maybe a civil thief, but a great example of (1) filing early and (2) ordering a title report (at least an “O and E” before recording a lien (or thereafter if not enough time before).

Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.commailto:dudley@mylicenselaw.com

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, July 03, 2014 1:10 PM
To: <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org>
Subject: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

I have an issue involving my client’s construction lien and mortgage foreclosure suit that was filed years before my client was even hired.  Here is the chronology of events:

3/30/11 --- mortgage foreclosure filed
4/11/11 --- notice of lis pendens recorded for above suit
6/3/13 --- owners sign contract with my client
8/29/13 --- my client’s construction lien is recorded
11/13/13 --- my client’s lawsuit is filed and notice of lis pendens recorded
1/22/14 --- Final Judgment entered in mortgage foreclosure case
3/17/14 --- public sale in mortgage foreclosure case

I realize that the notice of lis pendens filed in the mortgage foreclosure case (to quote Leiby) “cuts off the rights of any person claiming any interest or lien in the property by virtue of a claim recorded after the recording of the notice of lis pendens, except for any holder of a lien who intervenes within 30 days of the recording of the notice of lis pendens.”  My client could have discovered the notice of lis pendens filed in the mortgage foreclosure case because it’s a matter of public record but we all know that our clients never look for such things.  At any rate, the notice of lis pendens filed in the mortgage foreclosure case was recorded long before my client performed any work and recorded its lien so they had no opportunity to intervene.  Obviously, my client was not a Defendant in the mortgage foreclosure case.

Is my client’s only relief a claim for breach of contract?  What about a fraud claim?  I think the answers are “yes” and “yes.”  The owners knew they were in the middle of a mortgage foreclosure so they likely knew they were making improvements to a home they were going to lose.  So then it’s likely that they never had any intention of paying my client.

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com

<image001.jpg>

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

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CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion

Don’t know how a fraud claim could be maintained since the mortgage action was a matter of public record—that’s why the LP is recorded in the public records, to put other potential claimants on notice.  All persons providing labor or materials to improve the property are put on constructive notice that a mortgage foreclosure is pending.

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Fred Dudley
Sent: Thursday, July 03, 2014 2:51 PM
To: Andrea Fair; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

Maybe a civil thief, but a great example of (1) filing early and (2) ordering a title report (at least an “O and E” before recording a lien (or thereafter if not enough time before).

Fred R. Dudley, Partner

Board Certified Construction Lawyer

Dudley, Sellers & Healy, P. L.

SunTrust Financial Center, Suite 301

3522 Thomasville Road

Tallahassee, Florida 32308

Cell: (850) 294-3471

Direct: (850)692-6368

dudley@mylicenselaw.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, July 03, 2014 1:10 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

I have an issue involving my client’s construction lien and mortgage foreclosure suit that was filed years before my client was even hired.  Here is the chronology of events:

3/30/11 --- mortgage foreclosure filed

4/11/11 --- notice of lis pendens recorded for above suit

6/3/13 --- owners sign contract with my client

8/29/13 --- my client’s construction lien is recorded

11/13/13 --- my client’s lawsuit is filed and notice of lis pendens recorded

1/22/14 --- Final Judgment entered in mortgage foreclosure case

3/17/14 --- public sale in mortgage foreclosure case

I realize that the notice of lis pendens filed in the mortgage foreclosure case (to quote Leiby) “cuts off the rights of any person claiming any interest or lien in the property by virtue of a claim recorded after the recording of the notice of lis pendens, except for any holder of a lien who intervenes within 30 days of the recording of the notice of lis pendens.”  My client could have discovered the notice of lis pendens filed in the mortgage foreclosure case because it’s a matter of public record but we all know that our clients never look for such things.  At any rate, the notice of lis pendens filed in the mortgage foreclosure case was recorded long before my client performed any work and recorded its lien so they had no opportunity to intervene.  Obviously, my client was not a Defendant in the mortgage foreclosure case.

Is my client’s only relief a claim for breach of contract?  What about a fraud claim?  I think the answers are “yes” and “yes.”  The owners knew they were in the middle of a mortgage foreclosure so they likely knew they were making improvements to a home they were going to lose.  So then it’s likely that they never had any intention of paying my client.

What are your thoughts?  Thank you for all of your time and input.

Thanks,

Andrea

Andrea M. Fair-Purcell

Board Certified Construction Attorney

▬▬▬▬▬▬▬▬▬▬▬▬

FAIR•LAW•PLLC

▬▬▬▬▬▬▬▬▬▬▬▬

13046 Racetrack Road #236

Tampa, FL 33626
(813) 412-1077 phone

(877) 879-4990 fax
www.fairconstructionliens.com

cid:image001.jpg@01CC8816.941390B0

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Agreed

Sent on a Sprint Samsung Galaxy Note® 3 by:

Randall Gilbert, Esq.
GILBERT & CADDY PA
1720 Harrison Street
Penthouse B
Hollywood, FL 33020
Ofc: (954) 620-5000
Fax: (954) 620-5105
Email: Rgilbert@theconstructionlawyers.com

-------- Original message --------
From: REKLAW
Date:07/05/2014 10:07 AM (GMT-05:00)
To: CHernicz@Herniczlegal.com
Cc: ""
Subject: Re: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

Facially, it appears that Your lien is wiped out and I see no way for a fraud claim against the client as the mortgage foreclosure complaint is of public record. Moreover, as your client does not appear to have timely moved to intervene, in the underlying mortgage foreclosure action, (assuming your client was not added as a party defendant in the action) for the purpose of raising your contemplated equitable lien claim, etc... it appears that your client would have no recourse as to purchaser at foreclosure sale.

Sincerely,

Ronald E. Kaufman, Esq.
Board Certified Construction Attorney
Certified Circuit Civil Mediator

Law Offices of Ronald E. Kaufman, P.A.
3399 Ponce De Leon Boulevard, suite 202
Coral Gables, FL 33134
Main Telephone: (305) 444-1500tel:(305)%20444-1500
Facsimile: (305) 675-3327tel:(305)%20675-3327
Email: rek@reklawfirm.commailto:rekesq@gmail.com
Website: www.miamiconstructionattorney.infohttp://www.miamiconstructionattorney.info/

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On Jul 5, 2014, at 8:42 AM, "Charles B. Hernicz, Esq" <CHernicz@Herniczlegal.commailto:CHernicz@Herniczlegal.com> wrote:

Don’t know how a fraud claim could be maintained since the mortgage action was a matter of public record—that’s why the LP is recorded in the public records, to put other potential claimants on notice.  All persons providing labor or materials to improve the property are put on constructive notice that a mortgage foreclosure is pending.

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Fred Dudley
Sent: Thursday, July 03, 2014 2:51 PM
To: Andrea Fair; <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

Maybe a civil thief, but a great example of (1) filing early and (2) ordering a title report (at least an “O and E” before recording a lien (or thereafter if not enough time before).

Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.commailto:dudley@mylicenselaw.com

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, July 03, 2014 1:10 PM
To: <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org>
Subject: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

I have an issue involving my client’s construction lien and mortgage foreclosure suit that was filed years before my client was even hired.  Here is the chronology of events:

3/30/11 --- mortgage foreclosure filed
4/11/11 --- notice of lis pendens recorded for above suit
6/3/13 --- owners sign contract with my client
8/29/13 --- my client’s construction lien is recorded
11/13/13 --- my client’s lawsuit is filed and notice of lis pendens recorded
1/22/14 --- Final Judgment entered in mortgage foreclosure case
3/17/14 --- public sale in mortgage foreclosure case

I realize that the notice of lis pendens filed in the mortgage foreclosure case (to quote Leiby) “cuts off the rights of any person claiming any interest or lien in the property by virtue of a claim recorded after the recording of the notice of lis pendens, except for any holder of a lien who intervenes within 30 days of the recording of the notice of lis pendens.”  My client could have discovered the notice of lis pendens filed in the mortgage foreclosure case because it’s a matter of public record but we all know that our clients never look for such things.  At any rate, the notice of lis pendens filed in the mortgage foreclosure case was recorded long before my client performed any work and recorded its lien so they had no opportunity to intervene.  Obviously, my client was not a Defendant in the mortgage foreclosure case.

Is my client’s only relief a claim for breach of contract?  What about a fraud claim?  I think the answers are “yes” and “yes.”  The owners knew they were in the middle of a mortgage foreclosure so they likely knew they were making improvements to a home they were going to lose.  So then it’s likely that they never had any intention of paying my client.

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com

<image001.jpg>

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion

Can you file a charging lien in an arbitration?  I found only one case on the topic and it states “Because a charging lien is an equitable right, it can be imposed only by a court and not an arbitration panel.”  I received one suggestion and that was to file a motion in the appropriate court (County or Circuit), similar to when a case is initiated by filing a motion for entry of a judgment to confirm and arbitration award.  However, what if there is a settlement instead of an award or what if, after there is an award, payment is made without the need for anyone to file a case to confirm the award?

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com

[cid:image001.jpg@01CFA03B.94C16290]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

ANDREA,

I don’t have a case to point to that says that an arbitrator is empowered to create a charging lien.  Despite a number of cases holding that arbitrators have as much or more authority to fashion relief than a court, I wouldn’t want to be the pioneer.  One thing that could happen (and you could care less about this) is that the court decides the charging lien issue and you waive your right to have the arbitrator decide the charging lien issue by filing in court.

I suppose that this is the tail end of the proceedings since an argument could be made that if you seek court relief on an arbitrable issue that you may waive arbitration.

You don’t want to present it to the arbitration panel for decision and then later seek the relief in court.  If the arbitrator declines to award the requested lien the Court may back off of an issue presented to the arbitrators on the basis that they are not there for a second bite at the apple.

Regards,

Larry R. Leiby, Esq.
Malka & Kravitz, PA
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984        Toll Free:  888-341-9055  Cell:  954-895-9198
Fax:      954-514-0985              e-mail:  leiby@MKPAlaw.com

Florida Bar Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator and Arbitrator
IMI Certified Mediator

Fellow, College of Commercial Arbitrators
Mediator/Arbitrator, Leiby Alexander Brandt ADR Group, LLC

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Tuesday, July 15, 2014 2:50 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] charging lien in arbitration

Can you file a charging lien in an arbitration?  I found only one case on the topic and it states “Because a charging lien is an equitable right, it can be imposed only by a court and not an arbitration panel.”  I received one suggestion and that was to file a motion in the appropriate court (County or Circuit), similar to when a case is initiated by filing a motion for entry of a judgment to confirm and arbitration award.  However, what if there is a settlement instead of an award or what if, after there is an award, payment is made without the need for anyone to file a case to confirm the award?

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com

[cid:image001.jpg@01CFA03F.2E4DFB00]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.