Although I certainly don't consider myself an expert, I have been involved in a fair number of construction cases related to bankruptcy proceedings. My understanding is that a lienor is a secured creditor in bankruptcy if the debtor is the owner of the property (remember, however, that secured creditors are only secured in bankruptcy up to the value of the collateral, so the lienor's secured status can be challenged if there is insufficient equity in the property to satisfy superior lien claimants, like a prior-perfected mortgage on the same property). If the bankruptcy debtor is someone else, (i.e. general contractor), the creditor is not a secured creditor, but rather has an alternative remedy against a non-debtor, the property owner. As for a bond claim, I don't believe the creditor is a secured claimant, but likewise has an alternative remedy against an entity who is not a debtor in bankruptcy: the surety. You mention that in this case the surety is in liquidation, by whom? If the surety is in a bankruptcy proceeding itself, I don't believe a creditor has a secured claim, but rather a statutory cause of action, which would most likely be an unsecured claim. Steven F. Thompson, Esq. Thompson & Brooks 412 E. Madison St., Ste 900 Tampa, Fl. 33602 813-387-1821 Fax 813-387-1824 THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR; AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU. _____ From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of John J. Thresher Sent: Wednesday, October 03, 2012 11:04 AM To: 'Blaik Ross'; 'Weintraub, Lee'; peter@robertsonfirm.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Secured creditor 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) http://www.ThresherPA.com 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