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Bryan L. Capps

Mon, Mar 4, 2013 5:52 PM

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto: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 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.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:Matthew.Belcastro@henlaw.com
www.henlaw.com http://www.henlaw.com/
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-----Original Message-----
From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 [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.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

    [cid:image013.jpg@01CE18D7.24EC6330]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
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Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image004.jpg@01CE18D7.24EC6330] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image013.jpg@01CE18D7.24EC6330] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. 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] _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion

FD

fred.dudley (at) hklaw.com

Mon, Mar 4, 2013 8:15 PM

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto: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 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.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:Matthew.Belcastro@henlaw.com
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 [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.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

    [cid:image024.jpg@01CE18EB.171E0E70]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
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This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image015.jpg@01CE18EB.171E0E70] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image024.jpg@01CE18EB.171E0E70] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. 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. 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[v4.30] _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion ________________________________ ****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.**** ________________________________ NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

DV

Dan Vega

Mon, Mar 4, 2013 8:44 PM

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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.
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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
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Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

    [cid:image017.jpg@01CE18EF.25A5DB40]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
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I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image008.jpg@01CE18EF.25A5DB40] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. 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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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image017.jpg@01CE18EF.25A5DB40] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. 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If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

LL

Larry Leiby

Mon, Mar 4, 2013 8:46 PM

Dan,

The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24.

Regards,

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:image001.jpg@01CE18EF.674B1FB0]

From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image002.png@01CE18EF.674B1FB0]TaegTayl

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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:image001.jpg@01CE18EF.674B1FB0]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto: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 http://npw-law.com/

[cid:image003.jpg@01CE18EF.674B1FB0] [cid:image004.jpg@01CE18EF.674B1FB0]

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 [mailto: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 mailto:Matthew.Belcastro@henlaw.com
www.henlaw.com http://www.henlaw.com/
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 [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.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

    [cid:image015.jpg@01CE18EF.674B1FB0]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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:image016.png@01CE18EF.674B1FB0]
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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://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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Dan, The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24. Regards, 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:image001.jpg@01CE18EF.674B1FB0] From: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image002.png@01CE18EF.674B1FB0]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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:image001.jpg@01CE18EF.674B1FB0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<http://npw-law.com/> [cid:image003.jpg@01CE18EF.674B1FB0] [cid:image004.jpg@01CE18EF.674B1FB0] 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> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image005.jpg@01CE18EF.674B1FB0] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image006.png@01CE18EF.674B1FB0][cid:image007.jpg@01CE18EF.674B1FB0] [cid:image009.jpg@01CE18EF.674B1FB0] [cid:image010.jpg@01CE18EF.674B1FB0] [cid:image011.jpg@01CE18EF.674B1FB0] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [cid:image012.png@01CE18EF.674B1FB0] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [cid:image013.png@01CE18EF.674B1FB0] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [cid:image014.png@01CE18EF.674B1FB0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image015.jpg@01CE18EF.674B1FB0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image016.png@01CE18EF.674B1FB0] 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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. 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] _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion ________________________________ ****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.**** ________________________________ NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

DV

Dan Vega

Mon, Mar 4, 2013 8:50 PM

Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder?

This result does not make practical sense.

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Dan,

The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24.

Regards,

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 mailto: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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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.
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.
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website: http://www.lowndes-law.com http://www.lowndes-law.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
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Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder? This result does not make practical sense. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:46 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24. Regards, 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<mailto: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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Larry Leiby; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image019.jpg@01CE18EF.FD51A600] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image028.jpg@01CE18EF.FD51A600] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. 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[v4.30] _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion ________________________________ ****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.**** ________________________________ NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

LL

Larry Leiby

Mon, Mar 4, 2013 8:53 PM

Dan,

Did anyone ever say that it had to make practical sense? ☺

It is written is what we can say about it. It also doesn’t make practical sense for a lender to transfer a lien and eliminate its priority position.

Regards,

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:image001.jpg@01CE18F0.657AFE20]

From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder?

This result does not make practical sense.

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image002.png@01CE18F0.657AFE20]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Dan,

The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24.

Regards,

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 mailto: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:image001.jpg@01CE18F0.657AFE20]

From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image002.png@01CE18F0.657AFE20]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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:image001.jpg@01CE18F0.657AFE20]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto: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 http://npw-law.com/

[cid:image003.jpg@01CE18F0.657AFE20] [cid:image004.jpg@01CE18F0.657AFE20]

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 [mailto: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 mailto:Matthew.Belcastro@henlaw.com
www.henlaw.com http://www.henlaw.com/
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 [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.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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:image015.png@01CE18F0.657AFE20]
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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
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Dan, Did anyone ever say that it had to make practical sense? ☺ It is written is what we can say about it. It also doesn’t make practical sense for a lender to transfer a lien and eliminate its priority position. Regards, 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:image001.jpg@01CE18F0.657AFE20] From: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:50 PM To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder? This result does not make practical sense. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image002.png@01CE18F0.657AFE20]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:46 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24. Regards, 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<mailto: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:image001.jpg@01CE18F0.657AFE20] From: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Larry Leiby; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image002.png@01CE18F0.657AFE20]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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:image001.jpg@01CE18F0.657AFE20] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<http://npw-law.com/> [cid:image003.jpg@01CE18F0.657AFE20] [cid:image004.jpg@01CE18F0.657AFE20] 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> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image005.jpg@01CE18F0.657AFE20] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image006.png@01CE18F0.657AFE20][cid:image007.jpg@01CE18F0.657AFE20] [cid:image008.jpg@01CE18F0.657AFE20] [cid:image009.jpg@01CE18F0.657AFE20] [cid:image010.jpg@01CE18F0.657AFE20] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [cid:image011.png@01CE18F0.657AFE20] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [cid:image012.png@01CE18F0.657AFE20] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [cid:image013.png@01CE18F0.657AFE20] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image014.jpg@01CE18F0.657AFE20] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image015.png@01CE18F0.657AFE20] 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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. 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. 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[v4.30] _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion ________________________________ ****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.**** ________________________________ NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

RJ

Reese J. Henderson, Jr.

Mon, Mar 4, 2013 9:00 PM

Because 713.24 also gives standing to transfer liens to any person having an interest in “the contract under which the lien is claimed”. That is either the direct contract to which the GC is a party (but the lender typically is not) or it could be a subcontract to which, again, the GC is a party.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
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Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
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From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto:leiby@mkpalaw.com

Board Certified in Construction Law
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Member, Leiby Alexander Brandt ADR Group, LLC
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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.
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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)
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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

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Because 713.24 also gives standing to transfer liens to any person having an interest in “the contract under which the lien is claimed”. That is either the direct contract to which the GC is a party (but the lender typically is not) or it could be a subcontract to which, again, the GC is a party. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org]<mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org]> On Behalf Of fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> 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.com This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials. Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose. -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image005.jpg@01CE18F1.67E35620] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. 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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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image015.jpg@01CE18F1.67E35620] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. 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If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

DV

Dan Vega

Mon, Mar 4, 2013 9:03 PM

Larry, good point.

On the other hand, the entire purpose of transferring liens to bonds is to free the fee from the encumbrance so the owner can sell, mortgage it, etc.

Plus, the lien is subject to the existing mortgage anyway and if the lender forecloses, the lien is for all intents and purposes wiped out.

Heck, if I was representing a lienor with a large lien, I would also welcome the cash or surety bond regardless of who posts it.

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:53 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Dan,

Did anyone ever say that it had to make practical sense? ☺

It is written is what we can say about it. It also doesn’t make practical sense for a lender to transfer a lien and eliminate its priority position.

Regards,

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 mailto: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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder?

This result does not make practical sense.

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Dan,

The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24.

Regards,

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 mailto: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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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.
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P.O. Box 280
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-----Original Message-----
From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.
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Orlando, FL 32801
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email: michael.gibbons@lowndes-law.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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 mailto:hroberts@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
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Larry, good point. On the other hand, the entire purpose of transferring liens to bonds is to free the fee from the encumbrance so the owner can sell, mortgage it, etc. Plus, the lien is subject to the existing mortgage anyway and if the lender forecloses, the lien is for all intents and purposes wiped out. Heck, if I was representing a lienor with a large lien, I would also welcome the cash or surety bond regardless of who posts it. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:53 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, Did anyone ever say that it had to make practical sense? ☺ It is written is what we can say about it. It also doesn’t make practical sense for a lender to transfer a lien and eliminate its priority position. Regards, 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<mailto: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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:50 PM To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder? This result does not make practical sense. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:46 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24. Regards, 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<mailto: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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Larry Leiby; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image019.jpg@01CE18F1.51587660] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image028.jpg@01CE18F1.51587660] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. 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If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

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Reese J. Henderson, Jr.

Mon, Mar 4, 2013 9:19 PM

Dan,

You are exactly right – transferring liens is a convenience, but it doesn’t mean the convenience doesn’t come with a price. In the case of the lender, it means surrendering your priority position in exchange for freeing up the fee and being able to close. That said, the lender may well be able to recover the cost of any liability to the lienor from its borrower (e.g., by adding it to the loan balance). The borrower, in turn, has a claim against the GC. So it should all wash out in the end – just not as neatly and cleanly as the lender might like.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega
Sent: Monday, March 04, 2013 4:03 PM
To: 'Larry Leiby'; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Larry, good point.

On the other hand, the entire purpose of transferring liens to bonds is to free the fee from the encumbrance so the owner can sell, mortgage it, etc.

Plus, the lien is subject to the existing mortgage anyway and if the lender forecloses, the lien is for all intents and purposes wiped out.

Heck, if I was representing a lienor with a large lien, I would also welcome the cash or surety bond regardless of who posts it.

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]mailto:[mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:53 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Dan,

Did anyone ever say that it had to make practical sense? ☺

It is written is what we can say about it. It also doesn’t make practical sense for a lender to transfer a lien and eliminate its priority position.

Regards,

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 mailto: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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder?

This result does not make practical sense.

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

Dan,

The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24.

Regards,

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 mailto: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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

[cid:image001.png@01CD58FE.F1B30070]TaegTayl

The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com mailto:blc@kirwinnorris.com; bkpa1@aol.com mailto:bkpa1@aol.com; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com; hroberts@carltonfields.com mailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1@aol.com mailto:bkpa1@aol.com

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.com

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-----Original Message-----

From: Larry Leiby <Leiby@mkpalaw.com mailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.com mailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org mailto: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 mailto: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.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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 mailto:john@npw-law.com

Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto: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.
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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.

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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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)
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From: clc-discussion-bounces@lists.flabarrpptl.org mailto: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

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Dan, You are exactly right – transferring liens is a convenience, but it doesn’t mean the convenience doesn’t come with a price. In the case of the lender, it means surrendering your priority position in exchange for freeing up the fee and being able to close. That said, the lender may well be able to recover the cost of any liability to the lienor from its borrower (e.g., by adding it to the loan balance). The borrower, in turn, has a claim against the GC. So it should all wash out in the end – just not as neatly and cleanly as the lender might like. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega Sent: Monday, March 04, 2013 4:03 PM To: 'Larry Leiby'; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Larry, good point. On the other hand, the entire purpose of transferring liens to bonds is to free the fee from the encumbrance so the owner can sell, mortgage it, etc. Plus, the lien is subject to the existing mortgage anyway and if the lender forecloses, the lien is for all intents and purposes wiped out. Heck, if I was representing a lienor with a large lien, I would also welcome the cash or surety bond regardless of who posts it. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com]<mailto:[mailto:Leiby@mkpalaw.com]> Sent: Monday, March 04, 2013 3:53 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, Did anyone ever say that it had to make practical sense? ☺ It is written is what we can say about it. It also doesn’t make practical sense for a lender to transfer a lien and eliminate its priority position. Regards, 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<mailto: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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:50 PM To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Larry, so a subcontractor can transfer its supplier’s lien to a bond but not a mortgage holder? This result does not make practical sense. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:46 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24. Regards, 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<mailto: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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Larry Leiby; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC’s transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com<mailto:dvega@taylorvega.com> [cid:image001.png@01CD58FE.F1B30070]TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com<mailto:blc@kirwinnorris.com>; bkpa1@aol.com<mailto:bkpa1@aol.com>; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>; hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>; clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? Maybe some legislative clarification is in order. Barry Kalmanson bkpa1@aol.com<mailto:bkpa1@aol.com> 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.com This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials. Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose. -----Original Message----- From: Larry Leiby <Leiby@mkpalaw.com<mailto:Leiby@mkpalaw.com>> To: 'Roberts, Hardy L.' <hroberts@carltonfields.com<mailto:hroberts@carltonfields.com>>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.org<mailto: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<mailto: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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto: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<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.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto: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<mailto:Matthew.Belcastro@henlaw.com> www.henlaw.com<http://www.henlaw.com/> [cid:image005.jpg@01CE18F3.FEE6C820] ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com<mailto:administrator@henlaw.com> IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----Original Message----- From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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:image002.png@01CB0330.4CD28650][LH Address Line] [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement] [cid:image001.jpg@01CC7158.CF9B3D60] [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg] * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info> [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> [qrcode.1344014[1]] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<http://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.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image014.jpg@01CE18F3.FEE6C820] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:hroberts@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. 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If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

RB

Robert B. Worman

Mon, Mar 4, 2013 9:34 PM

Dan,

I doubt you would be thinking it was such a good thing if it was this
past summer, and the surety was First Sealord Surety. Now you would have
no lien and just a claim in its receivership.

Regards,

Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan
Vega
Sent: Monday, March 04, 2013 4:03 PM
To: 'Larry Leiby'; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com;
bkpa1@aol.com; hroberts@carltonfields.com;
clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?

Larry, good point.

On the other hand, the entire purpose of transferring liens to bonds is
to free the fee from the encumbrance so the owner can sell, mortgage it,
etc.

Plus, the lien is subject to the existing mortgage anyway and if the
lender forecloses, the lien is for all intents and purposes wiped out.

Heck, if I was representing a lienor with a large lien, I would also
welcome the cash or surety bond regardless of who posts it.

Daniel R. Vega, Esq.

Board Certified in Construction Law

Taylor Vega, P.A.

2555 Ponce De Leon Blvd., Suite 220

Coral Gables, Florida 33134

Telephone: (305) 443-2043

Facsimile: (305) 443-2048

Cell: (305) 962-5186

E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

TaegTayl

The information contained in this email message is intended only for the
personal and confidential use of the recipient(s) named above. This
message may be an attorney-client communication and as such is
privileged and confidential. If the reader of this message is not the
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delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:53 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com;
bkpa1@aol.com; hroberts@carltonfields.com;
clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?

Dan,

Did anyone ever say that it had to make practical sense? :-)

It is written is what we can say about it. It also doesn't make
practical sense for a lender to transfer a lien and eliminate its
priority position.

Regards,

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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com;
bkpa1@aol.com; hroberts@carltonfields.com;
clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?

Larry, so a subcontractor can transfer its supplier's lien to a bond but
not a mortgage holder?

This result does not make practical sense.

Daniel R. Vega, Esq.

Board Certified in Construction Law

Taylor Vega, P.A.

2555 Ponce De Leon Blvd., Suite 220

Coral Gables, Florida 33134

Telephone: (305) 443-2043

Facsimile: (305) 443-2048

Cell: (305) 962-5186

E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

TaegTayl

The information contained in this email message is intended only for the
personal and confidential use of the recipient(s) named above. This
message may be an attorney-client communication and as such is
privileged and confidential. If the reader of this message is not the
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this communication in error, please notify us immediately by e-mail, and
delete the original message.

From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com;
bkpa1@aol.com; hroberts@carltonfields.com;
clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?

Dan,

The GC has an interest in the contract under which the lien is claimed,
the other basis justifying transfer in 713.24.

Regards,

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: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; Larry
Leiby; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?

I just read below and for what it is worth, if a GC can transfer a lien
to a bond per 713.24, why would a lender not be able to do it?

GC's transfer liens to bonds all of the time. Practically speaking,
every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an "interest" in the property
greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.

Board Certified in Construction Law

Taylor Vega, P.A.

2555 Ponce De Leon Blvd., Suite 220

Coral Gables, Florida 33134

Telephone: (305) 443-2043

Facsimile: (305) 443-2048

Cell: (305) 962-5186

E-mail: dvega@taylorvega.com mailto:dvega@taylorvega.com

TaegTayl

The information contained in this email message is intended only for the
personal and confidential use of the recipient(s) named above. This
message may be an attorney-client communication and as such is
privileged and confidential. If the reader of this message is not the
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From: clc-discussion-bounces@lists.flabarrpptl.org [
mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com;
hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?

This is the statute that makes Florida a "lien theory" state rather than
a "title theory" state like California. The lien (mortgage or
construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com
http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley |
View professional biography http://www.hklaw.com/id77/biosfrdudley

From: clc-discussion-bounces@lists.flabarrpptl.org [
mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan
L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.com; hroberts@carltonfields.com;
clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?

Just to kick this dead horse one more time, note that Florida Statute
Section 697.02
<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&
Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its
entirety, "Nature of a mortgage.-A mortgage shall be held to be a
specific lien on the property therein described, and not a conveyance of
the legal title or of the right of possession." So, whether a lender
has an interest in real property sufficient to support a
transfer-of-lien bond is apparently not a function/subject of case law
alone. Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces@lists.flabarrpptl.org [
mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry
Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby@mkpalaw.com; hroberts@carltonfields.com;
clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off
aconstruction lien?

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
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 http://npw-law.com/

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
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 http://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/ <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

http://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.com

mailto:michael.gibbons@lowndes-law.com

website: http://www.lowndes-law.com

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

http://www.carltonfields.com/
bio http://www.carltonfields.com/hroberts/ | vcard
<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9
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Dan, I doubt you would be thinking it was such a good thing if it was this past summer, and the surety was First Sealord Surety. Now you would have no lien and just a claim in its receivership. Regards, Robert B. Worman, Esq. Worman & Sheffler, P.A. 2707 West Fairbanks Avenue Suite 200 Winter Park, Florida (32789) P.O. Box 1764 Orlando, Florida 32802 Phone: (407) 843-5353 Fax: (407) 841-9516 e-mail: rworman@wormanlaw.com NOTICE: THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A. TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE. ________________________________ From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega Sent: Monday, March 04, 2013 4:03 PM To: 'Larry Leiby'; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Larry, good point. On the other hand, the entire purpose of transferring liens to bonds is to free the fee from the encumbrance so the owner can sell, mortgage it, etc. Plus, the lien is subject to the existing mortgage anyway and if the lender forecloses, the lien is for all intents and purposes wiped out. Heck, if I was representing a lienor with a large lien, I would also welcome the cash or surety bond regardless of who posts it. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com <mailto:dvega@taylorvega.com> TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:53 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, Did anyone ever say that it had to make practical sense? :-) It is written is what we can say about it. It also doesn't make practical sense for a lender to transfer a lien and eliminate its priority position. Regards, 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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:50 PM To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Larry, so a subcontractor can transfer its supplier's lien to a bond but not a mortgage holder? This result does not make practical sense. Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com <mailto:dvega@taylorvega.com> TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Larry Leiby [mailto:Leiby@mkpalaw.com] Sent: Monday, March 04, 2013 3:46 PM To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? Dan, The GC has an interest in the contract under which the lien is claimed, the other basis justifying transfer in 713.24. Regards, 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: Dan Vega [mailto:DVega@taylorvega.com] Sent: Monday, March 04, 2013 3:44 PM To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.com; bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien? I just read below and for what it is worth, if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it? GC's transfer liens to bonds all of the time. Practically speaking, every decent owner/gc contract requires the gc to do so. It can hardly be argued that a GC has an "interest" in the property greater than a mortgage holder/lender. Dan Daniel R. Vega, Esq. Board Certified in Construction Law Taylor Vega, P.A. 2555 Ponce De Leon Blvd., Suite 220 Coral Gables, Florida 33134 Telephone: (305) 443-2043 Facsimile: (305) 443-2048 Cell: (305) 962-5186 E-mail: dvega@taylorvega.com <mailto:dvega@taylorvega.com> TaegTayl The information contained in this email message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: clc-discussion-bounces@lists.flabarrpptl.org [ mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, March 04, 2013 3:15 PM To: blc@kirwinnorris.com; bkpa1@aol.com; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property. Frederick Dudley | Holland & Knight Board Certified Construction Lawyer 315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471 fred.dudley@hklaw.com <mailto:fred.dudley@hklaw.com> | www.hklaw.com <http://www.hklaw.com/> ________________________________________________ Add to address book <http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography <http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org [ mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Monday, March 04, 2013 12:53 PM To: Barry Kalmanson; Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien? Just to kick this dead horse one more time, note that Florida Statute Section 697.02 <http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute& Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, "Nature of a mortgage.-A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession." So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone. Who knew. Best regards. Bryan Capps From: clc-discussion-bounces@lists.flabarrpptl.org [ mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Barry Kalmanson Sent: Wednesday, February 06, 2013 1:48 PM To: Leiby@mkpalaw.com; hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien? 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 <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 <http://npw-law.com/> 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 <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 <http://www.henlaw.com/> ________________________________ CONFIDENTIALITY STATEMENT Henderson, Franklin, Starnes & Holt, P.A. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to administrator@henlaw.com IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. -----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/ <http://www.rrobinsonlaw.com/> * CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately. Connect with Robinson & Associates, P.A. <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v= info> <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09> 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 <http://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.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <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. 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