Secured creditor
I have a question about secured creditors. Is a construction lien holder a secured creditor? I don't think so until there is a judgment, but can't find a statutory or case law basis. I appreciate any help.
Peter A. Robertson
Board Certified Construction Law
Board Certified Civil Trial
The Robertson Firm
5547 A1A South
Suite 108
St. Augustine, FL 32080
T (904)853-2612
F (904)853-2613
In bankruptcy cases, a lien holder is deemed a secured creditor even
prior to judgment
Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.com
http://www.becker-poliakoff.com
Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com.
Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
peter@robertsonfirm.com
Sent: Wednesday, October 03, 2012 8:24 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Secured creditor
I have a question about secured creditors. Is a construction lien
holder a secured creditor? I don't think so until there is a judgment,
but can't find a statutory or case law basis. I appreciate any help.
Peter A. Robertson
Board Certified Construction Law
Board Certified Civil Trial
The Robertson Firm
5547 A1A South
Suite 108
St. Augustine, FL 32080
T (904)853-2612
F (904)853-2613
How about a bond holder? I am making a performance bond claim against a
surety in liquidation for money damages and they ask on their proof of
claim form if I am a secured creditor. I answered yes and attached the
bond as the security agreement, but received a letter from their
attorney saying a bond is not a security agreement but an "insurance
policy", therefore my claim is unsecured. They cited no authority for
the statement. They said I will have an opportunity later to object to
that classification if I feel otherwise. Anyone know the answer?
Thanks!
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Wednesday, October 03, 2012 8:51 AM
To: peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
In bankruptcy cases, a lien holder is deemed a secured creditor even
prior to judgment
Becker & Poliakoffhttp://becker-poliakoff.us/graphics/logo_120.gif
http://www.becker-poliakoff.com/
Lee A. Weintraub
Board Certified Construction Lawyer
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com
Our clients' total satisfaction is our #1 priority. The Becker &
Poliakoff Client CARE Center is available for questions, concerns and
suggestions. Please contact us at 954.364.6090 or via email at
CARE@becker-poliakoff.com mailto:CARE@becker-poliakoff.com .
Click here http://www.floridaconstructionlawauthority.com/ to
subscribe to our complimentary Florida Construction Law Blog.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
peter@robertsonfirm.com
Sent: Wednesday, October 03, 2012 8:24 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Secured creditor
I have a question about secured creditors. Is a construction lien
holder a secured creditor? I don't think so until there is a judgment,
but can't find a statutory or case law basis. I appreciate any help.
Peter A. Robertson
Board Certified Construction Law
Board Certified Civil Trial
The Robertson Firm
5547 A1A South
Suite 108
St. Augustine, FL 32080
T (904)853-2612
F (904)853-2613
I could be wrong but I would imagine there is language in the lien and/or bond statutes that specifically uses the word “security.” If so, then I would argue that a bond claim is a secured claim and the legislature intended for it to be.
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@01CDA149.77EC45B0]
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.
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Blaik Ross
Sent: Wednesday, October 03, 2012 9:13 AM
To: Weintraub, Lee; peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
How about a bond holder? I am making a performance bond claim against a surety in liquidation for money damages and they ask on their proof of claim form if I am a secured creditor. I answered yes and attached the bond as the security agreement, but received a letter from their attorney saying a bond is not a security agreement but an “insurance policy”, therefore my claim is unsecured. They cited no authority for the statement. They said I will have an opportunity later to object to that classification if I feel otherwise. Anyone know the answer?
Thanks!
[cid:image002.jpg@01CDA149.77EC45B0]
Capability Integrity and Value.
We look forward to providing our clients with many more years of delivering the highest quality buildings in our community.
http://www.beauchampco.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Wednesday, October 03, 2012 8:51 AM
To: peter@robertsonfirm.commailto:peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
In bankruptcy cases, a lien holder is deemed a secured creditor even prior to judgment
[http://becker-poliakoff.us/graphics/logo_120.gif]
Lee A. Weintraub
Board Certified Construction Lawyer
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.commailto:LWeintraub@becker-poliakoff.com
www.becker-poliakoff.comhttp://www.becker-poliakoff.com
Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.commailto:CARE@becker-poliakoff.com.
Click herehttp://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of peter@robertsonfirm.commailto:peter@robertsonfirm.com
Sent: Wednesday, October 03, 2012 8:24 AM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Secured creditor
I have a question about secured creditors. Is a construction lien holder a secured creditor? I don’t think so until there is a judgment, but can’t find a statutory or case law basis. I appreciate any help.
Peter A. Robertson
Board Certified Construction Law
Board Certified Civil Trial
The Robertson Firm
5547 A1A South
Suite 108
St. Augustine, FL 32080
T (904)853-2612
F (904)853-2613
Bond claim is an unsecured claim on a contract (bond). Security is property held by secured creditor or property not held but subject to acquisition through a lien foreclosure process.
Sent from my iPhone. Expect typos.
On Oct 3, 2012, at 9:39 AM, "Andrea Fair" amf@fairconstructionliens.commailto:amf@fairconstructionliens.com> wrote:
I could be wrong but I would imagine there is language in the lien and/or bond statutes that specifically uses the word “security.” If so, then I would argue that a bond claim is a secured claim and the legislature intended for it to be.
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.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Blaik Ross
Sent: Wednesday, October 03, 2012 9:13 AM
To: Weintraub, Lee; peter@robertsonfirm.commailto:peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
How about a bond holder? I am making a performance bond claim against a surety in liquidation for money damages and they ask on their proof of claim form if I am a secured creditor. I answered yes and attached the bond as the security agreement, but received a letter from their attorney saying a bond is not a security agreement but an “insurance policy”, therefore my claim is unsecured. They cited no authority for the statement. They said I will have an opportunity later to object to that classification if I feel otherwise. Anyone know the answer?
Thanks!
<image002.jpg>
Capability Integrity and Value.
We look forward to providing our clients with many more years of delivering the highest quality buildings in our community.
http://www.beauchampco.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Wednesday, October 03, 2012 8:51 AM
To: peter@robertsonfirm.commailto:peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
In bankruptcy cases, a lien holder is deemed a secured creditor even prior to judgment
[Becker & Poliakoff]
Lee A. Weintraub
Board Certified Construction Lawyer
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.commailto:LWeintraub@becker-poliakoff.com
www.becker-poliakoff.comhttp://www.becker-poliakoff.com
Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.commailto:CARE@becker-poliakoff.com.
Click herehttp://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of peter@robertsonfirm.commailto:peter@robertsonfirm.com
Sent: Wednesday, October 03, 2012 8:24 AM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Secured creditor
I have a question about secured creditors. Is a construction lien holder a secured creditor? I don’t think so until there is a judgment, but can’t find a statutory or case law basis. I appreciate any help.
Peter A. Robertson
Board Certified Construction Law
Board Certified Civil Trial
The Robertson Firm
5547 A1A South
Suite 108
St. Augustine, FL 32080
T (904)853-2612
F (904)853-2613
CLC-Discussion mailing list
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http://mailman.fsr.com/mailman/listinfo/clc-discussion
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I do not hold myself out as knowing the first thing about bankruptcy. That
said, I do not have any support for the notion that a bond holder is a
secured creditor against a bonding company in bankruptcy (and I would think
that the very need to consider the creditworthiness of the bond indicates
the bond would not put the holder in a position of preference over any other
creditors of the Surety). However, I am familiar with a line of Florida
cases that specifically discuss whether bonds are insurance and conclude
that they are not. If I recall correctly, the cases were related to
attempts to assert bad faith claims against surety companies. The opinions
actually allowed bad faith claims but specifically determined bonds were not
insurance. Subsequently the legislature amended the bad faith statute to
remove sureties from the equation, essentially rendering the line of cases
old news, but they could be helpful to you if you were looking for something
that was intended to show the difference between bonding and insurance.
Sincerely,
John J. Thresher, Esq.
Board Certified Construction Attorney
ThresherAndThresher_Logo_final
400 North Tampa St.
Ste. 1320
Tampa, FL 33602
(813) 229-7744
(813) 228-0367 (Fax)
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Blaik
Ross
Sent: Wednesday, October 03, 2012 9:13 AM
To: Weintraub, Lee; peter@robertsonfirm.com;
clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
How about a bond holder? I am making a performance bond claim against a
surety in liquidation for money damages and they ask on their proof of claim
form if I am a secured creditor. I answered yes and attached the bond as
the security agreement, but received a letter from their attorney saying a
bond is not a security agreement but an "insurance policy", therefore my
claim is unsecured. They cited no authority for the statement. They said I
will have an opportunity later to object to that classification if I feel
otherwise. Anyone know the answer?
Thanks!
Capability Integrity and Value.
We look forward to providing our clients with many more years of delivering
the highest quality buildings in our community.
http://www.beauchampco.com
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Wednesday, October 03, 2012 8:51 AM
To: peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Secured creditor
In bankruptcy cases, a lien holder is deemed a secured creditor even prior
to judgment
Becker & Poliakoff http://becker-poliakoff.us/graphics/logo_120.gif
Lee A. Weintraub
Board Certified Construction Lawyer
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com
Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff
Client CARE Center is available for questions, concerns and suggestions.
Please contact us at 954.364.6090 or via email at
mailto:CARE@becker-poliakoff.com CARE@becker-poliakoff.com.
http://www.floridaconstructionlawauthority.com/ Click here to subscribe
to our complimentary Florida Construction Law Blog.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
peter@robertsonfirm.com
Sent: Wednesday, October 03, 2012 8:24 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Secured creditor
I have a question about secured creditors. Is a construction lien holder a
secured creditor? I don't think so until there is a judgment, but can't
find a statutory or case law basis. I appreciate any help.
Peter A. Robertson
Board Certified Construction Law
Board Certified Civil Trial
The Robertson Firm
5547 A1A South
Suite 108
St. Augustine, FL 32080
T (904)853-2612
F (904)853-2613
I represent a contractor on a residential project. The owner hired him while she was in mortgage foreclosure but my client did not know that. The chronology of events is as follows:
4/13/11 --- Lis Pendens for mortgage foreclosure
5/10/12 --- Notice of Commencement for my client’s project
6/20/12 --- Certificate of Title transferring title from owner to lender
9/14/12 --- my client’s Claim of Lien
I’ve read FS Section 48.23 where it states, in part, as follows:
(1)(d) Except for the interest of persons in possession or easements of use, the recording of such notice of lis pendens, provided that during the pendency of the proceeding it has not expired pursuant to subsection (2) or been withdrawn or discharged, constitutes a bar to the enforcement against the property described in the notice of all interests and liens, including, but not limited to, federal tax liens and levies, unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens . . .
Of course, my client had no knowledge of the mortgage foreclosure or the LP so he never intervened. The attorney for the lender (new owner) has demanded that my client release the lien.
Any thoughts or ideas on recourse? Thank you in advance for your input.
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@01CE038D.DB72F7E0]
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.
More facts might lead you to Unjust Enrichment, Quantum Meruit or an Equitable Lien.
Timothy R. Moorhead, Esq.
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com
www.wfmblaw.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Tuesday, February 05, 2013 3:53 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] question re: Lis Pendens and Lien
I represent a contractor on a residential project. The owner hired him while she was in mortgage foreclosure but my client did not know that. The chronology of events is as follows:
4/13/11 --- Lis Pendens for mortgage foreclosure
5/10/12 --- Notice of Commencement for my client’s project
6/20/12 --- Certificate of Title transferring title from owner to lender
9/14/12 --- my client’s Claim of Lien
I’ve read FS Section 48.23 where it states, in part, as follows:
(1)(d) Except for the interest of persons in possession or easements of use, the recording of such notice of lis pendens, provided that during the pendency of the proceeding it has not expired pursuant to subsection (2) or been withdrawn or discharged, constitutes a bar to the enforcement against the property described in the notice of all interests and liens, including, but not limited to, federal tax liens and levies, unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens . . .
Of course, my client had no knowledge of the mortgage foreclosure or the LP so he never intervened. The attorney for the lender (new owner) has demanded that my client release the lien.
Any thoughts or ideas on recourse? Thank you in advance for your input.
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@01CE03BC.FA55B920]
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.
I agree with my much older (and, alright, wiser) brother Tim Moorhead. You need more facts. For one, given the time between the mortgage foreclosure lis pendens and the NOC (over a year), I would want to know who was supposed to finance this construction project -- especially in light of the fact that it appears you client's client could not even pay their mortgage on the subject property! Two, what payment / financing representations were made in your client's contract? There are other questions to ask, but these may lead you to claims for misrepresentation and/or fraud. Good luck!
Don Gibson, Esquire, PE, LEED AP BC+D
GIBSON|LAW
20 North Brown Avenue
Orlando, Florida 32801
407-616-2795
From: Timothy Moorhead tmoorhead@wfmblaw.com
To: Andrea Fair amf@fairconstructionliens.com; "clc-discussion@lists.flabarrpptl.org" clc-discussion@lists.flabarrpptl.org
Sent: Tuesday, February 5, 2013 4:22 PM
Subject: Re: [CLC-Discussion] question re: Lis Pendens and Lien
More facts might lead you to Unjust
Enrichment, Quantum Meruit or an Equitable Lien.
Timothy R. Moorhead, Esq.
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com
http://www.wfmblaw.com/
CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the
attachments accompanying it) may contain confidential information belonging to
the sender which is protected by the attorney-client privilege. The information
is intended only for the use of the intended recipient. If you are not the
intended recipient, you are hereby notified that any disclosure, copying,
distribution or the taking of any action in reliance on the contents of this
information is strictly prohibited. Any unauthorized interception of this
transmission is illegal. If you have received this transmission in error,
please promptly notify the sender by reply e-mail, and then destroy all copies
of the transmission.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently
enacted U.S. Treasury Department regulations, we hereby advise you that, unless
otherwise expressly stated, any and all tax advice contained in this
communication has neither been written nor intended by the sender or this firm
for the use of any taxpayer for the purpose of evading or avoiding tax
penalties that may be imposed pursuant to U.S. law. Furthermore, unless
otherwise expressly indicated, the use of any tax advice contained in this
communication has neither been written nor intended by the sender or this firm
for the purpose of promoting, marketing, or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, and such taxpayer
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From:clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Tuesday, February 05, 2013
3:53 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] question
re: Lis Pendens and Lien
I
represent a contractor on a residential project. The owner hired him
while she was in mortgage foreclosure but my client did not know that.
The chronology of events is as follows:
4/13/11
--- Lis Pendens for mortgage foreclosure
5/10/12
--- Notice of Commencement for my client’s project
6/20/12
--- Certificate of Title transferring title from owner to lender
9/14/12
--- my client’s Claim of Lien
I’ve read
FS Section 48.23 where it states, in part, as follows:
(1)(d) Except for the interest of persons in possession or easements of
use, the recording of such notice of lis pendens, provided that during the
pendency of the proceeding it has not expired pursuant to subsection (2) or
been withdrawn or discharged, constitutes a bar to the enforcement against the
property described in the notice of all interests and liens, including, but not
limited to, federal tax liens and levies, unrecorded at the time of recording
the notice unless the holder of any such unrecorded interest or lien intervenes
in such proceedings within 30 days after the recording of the notice. If the
holder of any such unrecorded interest or lien does not intervene in the
proceedings and if such proceedings are prosecuted to a judicial sale of the
property described in the notice, the property shall be forever discharged from
all such unrecorded interests and liens . . .
Of course,
my client had no knowledge of the mortgage foreclosure or the LP so he never
intervened. The attorney for the lender (new owner) has demanded that my
client release the lien.
Any
thoughts or ideas on recourse? Thank you in advance for your input.
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
http://www.fairconstructionliens.com/
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