See United Of Florida Inc. v Illini Federal Savings & Loan, 341 So. 2d 793.
for the proposition that a mortgage is not an "interest in property" as
contemplated by ch 713.  Old case, but maybe still valid.

Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry
Kalmanson
Sent: Tuesday, February 05, 2013 3:28 PM
To: Ray@rrobinsonlaw.com; Michael.Gibbons@lowndes-law.com;
hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off
aconstruction lien?

Bingo

Barry Kalmanson
bkpa1@aol.com

-----Original Message-----
From: Raymond L. Robinson Ray@rrobinsonlaw.com
To: Gibbons, Michael Michael.Gibbons@lowndes-law.com; Roberts, Hardy L.
hroberts@carltonfields.com; Construction Law Discussion
clc-discussion@lists.flabarrpptl.org
Sent: Tue, Feb 5, 2013 2:02 pm
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?

One could make the argument that Florida is considered a "lien" state and
case law has held that a mortgage is not a transfer of "interest" in real
property and therefore does not need two subscribing witnesses.  Good
question though.  Let me know if you find the answer.

Raymond L. Robinson, Esq.
Office: (305) 662-7618
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons,
Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?

Yes.  The lender has "an interest" via its mortgage in the real property on
which the lien is imposed.

Michael R. Gibbons  (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com

From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts,
Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction
lien?

Anyone have any thoughts on this?

Carlton Fields
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

hroberts@carltonfields.com | www.carltonfields.com
bio | vcard

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I agree with those who noted that a lender does not have an interest in property, instead it has a mortgage lien, and thus is not covered under 713.24.  However that is the tip of the iceberg and begs the question.

The concern that I have experienced is where the lender seeks to transfer the lien to bond but the bond form is not conditioned only on proving the lien claim it is also conditioned on proving priority.  That is not what 713.24 is about, and the clerks aren’t real students of 713.24 as they have many duties.  If that happens the lienor should challenge any certificate of transfer.

So a lender is a little nuts wanting to transfer a lien under 713.24 without added language (which would not meet the requirements of 713.24), because then the lienor need only prove its lien claim and the condition of the bond is performed where the principal and surety on the bond are on the hook (assuming they didn’t sneak in any added language to the 713.24 bond form).  The lender loses its argument about the lien not having equity and being inferior to the mortgage by bonding it off and taking the property equity out of the equation.  The lienor should be ecstatic about not being worried about the lender’s priority any more, but must watch carefully the language in the bond.  If the lender is looking to clear title for some reason of its own, it should not be the principal on the bond – only someone with an interest.  If the lender gets cute and adds language to the bond, we have some new issues to address, which I believe are not yet resolved.

Thus if the lender uses a 713.24 bond to transfer it off, the question is:  Is the lien really transferred off, or is the lien still there along with the bond because the lender cannot meet the requirements of 713.24 by not having an interest in the property?

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985    e-mail:  leiby@mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[cid:image002.jpg@01CE045B.B8DA6AA0]

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.

John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive  Gainesville, FL 32608
Ph (352) 373-9031  Fax (352) 373-9099
http://npw-law.com

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This communication is intended for the sole use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If the reader of this communication is not the intended recipient, employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please immediately notify me by telephone, delete this communication, and destroy any copies of it.  Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Matthew Belcastro
Sent: Tuesday, February 05, 2013 2:16 PM
To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I'm not sure I understand why the construction lender wants to bond off the lien?  Are they trying to convert to permanent financing and unable as a result of the construction lien?

Matthew Belcastro
Attorney at Law
Henderson, Franklin, Starnes & Holt, P.A.
1715 Monroe Street
P.O. Box 280
Fort Myers, FL  33902
Direct Dial:  239.344.1205
Direct Fax: 239.344.1524
Matthew.Belcastro@henlaw.commailto:Matthew.Belcastro@henlaw.com
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-----Original Message-----
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses.  Good question though.  Let me know if you find the answer.

Raymond L. Robinson, Esq.
Office: (305) 662-7618
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/

[cid:image017.png@01CE045B.B8DA6AA0][cid:image018.jpg@01CE045B.B8DA6AA0]

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Yes.  The lender has “an interest” via its mortgage in the real property on which the lien is imposed.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image025.jpg@01CE045B.B8DA6AA0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?

Anyone have any thoughts on this?

[cid:image026.png@01CE045B.B8DA6AA0]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

hroberts@carltonfields.commailto:hroberts@carltonfields.com | www.carltonfields.comhttp://www.carltonfields.com/
biohttp://www.carltonfields.com/hroberts/ | vcardhttp://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29

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Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

“is the lien still there along with the bond . . .” – interesting point, Larry.  If the lender attempts to transfer the lien through a 713.24 lien transfer bond, then by your argument the lienor would still have its lien claim AND now have a claim against that bond, which, because it does not comply with 713.24, is instead a common law bond which is additional – and not substitute – security for the lien.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Wednesday, February 06, 2013 11:27 AM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I agree with those who noted that a lender does not have an interest in property, instead it has a mortgage lien, and thus is not covered under 713.24.  However that is the tip of the iceberg and begs the question.

The concern that I have experienced is where the lender seeks to transfer the lien to bond but the bond form is not conditioned only on proving the lien claim it is also conditioned on proving priority.  That is not what 713.24 is about, and the clerks aren’t real students of 713.24 as they have many duties.  If that happens the lienor should challenge any certificate of transfer.

So a lender is a little nuts wanting to transfer a lien under 713.24 without added language (which would not meet the requirements of 713.24), because then the lienor need only prove its lien claim and the condition of the bond is performed where the principal and surety on the bond are on the hook (assuming they didn’t sneak in any added language to the 713.24 bond form).  The lender loses its argument about the lien not having equity and being inferior to the mortgage by bonding it off and taking the property equity out of the equation.  The lienor should be ecstatic about not being worried about the lender’s priority any more, but must watch carefully the language in the bond.  If the lender is looking to clear title for some reason of its own, it should not be the principal on the bond – only someone with an interest.  If the lender gets cute and adds language to the bond, we have some new issues to address, which I believe are not yet resolved.

Thus if the lender uses a 713.24 bond to transfer it off, the question is:  Is the lien really transferred off, or is the lien still there along with the bond because the lender cannot meet the requirements of 713.24 by not having an interest in the property?

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985    e-mail:  leiby@mkpalaw.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[Description: JAMSadr.com.jpg]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.

John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive  Gainesville, FL 32608
Ph (352) 373-9031  Fax (352) 373-9099
http://npw-law.com

[NPW_Logo_Solid_small]    [certification logo half size]

This communication is intended for the sole use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If the reader of this communication is not the intended recipient, employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please immediately notify me by telephone, delete this communication, and destroy any copies of it.  Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Matthew Belcastro
Sent: Tuesday, February 05, 2013 2:16 PM
To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I'm not sure I understand why the construction lender wants to bond off the lien?  Are they trying to convert to permanent financing and unable as a result of the construction lien?

Matthew Belcastro
Attorney at Law
Henderson, Franklin, Starnes & Holt, P.A.
1715 Monroe Street
P.O. Box 280
Fort Myers, FL  33902
Direct Dial:  239.344.1205
Direct Fax: 239.344.1524
Matthew.Belcastro@henlaw.commailto:Matthew.Belcastro@henlaw.com
www.henlaw.comhttp://www.henlaw.com
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses.  Good question though.  Let me know if you find the answer.

Raymond L. Robinson, Esq.
Office: (305) 662-7618
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Yes.  The lender has “an interest” via its mortgage in the real property on which the lien is imposed.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?

Anyone have any thoughts on this?

[Carlton Fields]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

hroberts@carltonfields.commailto:hroberts@carltonfields.com | www.carltonfields.comhttp://www.carltonfields.com/
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We recently had a scenario where the lender needed to clear title in order to proceed on a complex commercial short sale because our lien, and issues too complex to be resolved short of trial, were impeding their ability to foreclose out the interests of the lien holder. As a result, they transferred the lien to bond to effectuate that multi-million dollar transaction.

As Larry indicated in his post earlier, the lender was not too happy to then realize that they had waived any right to argue the priority of their loan over the lien, and were forced to satisfy the lien that would have otherwise been worth nothing.

That is the one and only time I have experienced such a scenario, but to answer your question, there is at least one scenario where it can become an issue.

Ian T. Kravitz, Esquire  view my biohttp://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.comhttp://www.mkpalaw.com/
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Greg Elliott
Sent: Wednesday, February 06, 2013 12:26 PM
To: Reese J. Henderson, Jr.; Larry Leiby; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

Still struggling to picture a scenario where a lender would have any legitimate interest in transferring some claimant's lien against their borrower's property off to other security (713.24 bond).  In my experience the notion of bonding a lien off usually is something a General Contractor elects do do with one of his subs or materialmen's claim of lien, where he is in a dispute with that sub or materialman over what is due, and does not want his owner's property subjected to the lien.  The property owner's lender might consider the encumbrance to be an event of technical default under the mortgage, but why would they care to expend the energy and resources to transfer that inferior claim of interest off.  If push came to shove the lender could just foreclose the claim out with every other junior encumberance.

G. Elliott

Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law
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------ Original Message ------
From: "Reese J. Henderson, Jr." <Reese.Henderson@gray-robinson.commailto:Reese.Henderson@gray-robinson.com>
To: "Larry Leiby" <Leiby@mkpalaw.commailto:Leiby@mkpalaw.com>; "'Roberts, Hardy L.'" <hroberts@carltonfields.commailto:hroberts@carltonfields.com>; "'Construction Law Discussion'" <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org>
Sent: 2/6/2013 11:45:46 AM
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
“is the lien still there along with the bond . . .” – interesting point, Larry.  If the lender attempts to transfer the lien through a 713.24 lien transfer bond, then by your argument the lienor would still have its lien claim AND now have a claim against that bond, which, because it does not comply with 713.24, is instead a common law bond which is additional – and not substitute – security for the lien.

Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.commailto:Reese.Henderson@gray-robinson.com
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Wednesday, February 06, 2013 11:27 AM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I agree with those who noted that a lender does not have an interest in property, instead it has a mortgage lien, and thus is not covered under 713.24.  However that is the tip of the iceberg and begs the question.

The concern that I have experienced is where the lender seeks to transfer the lien to bond but the bond form is not conditioned only on proving the lien claim it is also conditioned on proving priority.  That is not what 713.24 is about, and the clerks aren’t real students of 713.24 as they have many duties.  If that happens the lienor should challenge any certificate of transfer.

So a lender is a little nuts wanting to transfer a lien under 713.24 without added language (which would not meet the requirements of 713.24), because then the lienor need only prove its lien claim and the condition of the bond is performed where the principal and surety on the bond are on the hook (assuming they didn’t sneak in any added language to the 713.24 bond form).  The lender loses its argument about the lien not having equity and being inferior to the mortgage by bonding it off and taking the property equity out of the equation.  The lienor should be ecstatic about not being worried about the lender’s priority any more, but must watch carefully the language in the bond.  If the lender is looking to clear title for some reason of its own, it should not be the principal on the bond – only someone with an interest.  If the lender gets cute and adds language to the bond, we have some new issues to address, which I believe are not yet resolved.

Thus if the lender uses a 713.24 bond to transfer it off, the question is:  Is the lien really transferred off, or is the lien still there along with the bond because the lender cannot meet the requirements of 713.24 by not having an interest in the property?

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985    e-mail:  leiby@mkpalaw.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[cid:image024.jpg@01CE0468.48F77590]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.

John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive  Gainesville, FL 32608
Ph (352) 373-9031  Fax (352) 373-9099
http://npw-law.com

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This communication is intended for the sole use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If the reader of this communication is not the intended recipient, employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please immediately notify me by telephone, delete this communication, and destroy any copies of it.  Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Matthew Belcastro
Sent: Tuesday, February 05, 2013 2:16 PM
To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I'm not sure I understand why the construction lender wants to bond off the lien?  Are they trying to convert to permanent financing and unable as a result of the construction lien?

Matthew Belcastro
Attorney at Law
Henderson, Franklin, Starnes & Holt, P.A.
1715 Monroe Street
P.O. Box 280
Fort Myers, FL  33902
Direct Dial:  239.344.1205
Direct Fax: 239.344.1524
Matthew.Belcastro@henlaw.commailto:Matthew.Belcastro@henlaw.com
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-----Original Message-----
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses.  Good question though.  Let me know if you find the answer.

Raymond L. Robinson, Esq.
Office: (305) 662-7618
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Yes.  The lender has “an interest” via its mortgage in the real property on which the lien is imposed.

Michael R. Gibbons  (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image036.jpg@01CE0468.48F77590]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?

Anyone have any thoughts on this?

[cid:image037.png@01CE0468.48F77590]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

hroberts@carltonfields.commailto:hroberts@carltonfields.com | http://www.carltonfields.com/
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Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

Maybe some legislative clarification is in order.

Barry Kalmanson
bkpa1@aol.com

-----Original Message-----
From: Larry Leiby Leiby@mkpalaw.com
To: 'Roberts, Hardy L.' hroberts@carltonfields.com; 'Construction Law Discussion' clc-discussion@lists.flabarrpptl.org
Sent: Wed, Feb 6, 2013 11:27 am
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I agree with those who noted that a lender does not have an interest in property, instead it has a mortgage lien, and thus is not covered under 713.24.  However that is the tip of the iceberg and begs the question.

The concern that I have experienced is where the lender seeks to transfer the lien to bond but the bond form is not conditioned only on proving the lien claim it is also conditioned on proving priority.  That is not what 713.24 is about, and the clerks aren’t real students of 713.24 as they have many duties.  If that happens the lienor should challenge any certificate of transfer.

So a lender is a little nuts wanting to transfer a lien under 713.24 without added language (which would not meet the requirements of 713.24), because then the lienor need only prove its lien claim and the condition of the bond is performed where the principal and surety on the bond are on the hook (assuming they didn’t sneak in any added language to the 713.24 bond form).  The lender loses its argument about the lien not having equity and being inferior to the mortgage by bonding it off and taking the property equity out of the equation.  The lienor should be ecstatic about not being worried about the lender’s priority any more, but must watch carefully the language in the bond.  If the lender is looking to clear title for some reason of its own, it should not be the principal on the bond – only someone with an interest.  If the lender gets cute and adds language to the bond, we have some new issues to address, which I believe are not yet resolved.

Thus if the lender uses a 713.24 bond to transfer it off, the question is:  Is the lien really transferred off, or is the lien still there along with the bond because the lender cannot meet the requirements of 713.24 by not having an interest in the property?

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985    e-mail:  leiby@mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.

John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive  Gainesville, FL 32608
Ph (352) 373-9031  Fax (352) 373-9099
http://npw-law.com

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Matthew Belcastro
Sent: Tuesday, February 05, 2013 2:16 PM
To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I'm not sure I understand why the construction lender wants to bond off the lien?  Are they trying to convert to permanent financing and unable as a result of the construction lien?

Matthew Belcastro
Attorney at Law
Henderson, Franklin, Starnes & Holt, P.A.
1715 Monroe Street
P.O. Box 280
Fort Myers, FL  33902
Direct Dial:  239.344.1205
Direct Fax: 239.344.1524
Matthew.Belcastro@henlaw.com
www.henlaw.com

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-----Original Message-----
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses.  Good question though.  Let me know if you find the answer.

Raymond L. Robinson, Esq.
Office: (305) 662-7618
Cell: (305) 632-4384
http://www.rrobinsonlaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Yes.  The lender has “an interest” via its mortgage in the real property on which the lien is imposed.

Michael R. Gibbons  (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?

Anyone have any thoughts on this?

Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

hroberts@carltonfields.com | www.carltonfields.com
bio | vcard

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