Re: [CLC-Discussion] Can a construction lender bond off a construction lien?
Good point.
Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
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Sent: Monday, March 04, 2013 4:35 PM
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Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?
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.
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Suite 200
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega
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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
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From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:53 PM
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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
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From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
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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
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From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
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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.commailto:leiby@mkpalaw.com
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From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
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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.orgmailto: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.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.orgmailto: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.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:bkpa1@aol.com
-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.commailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.commailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
[Description: JAMSadr.com.jpg]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.
John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of 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.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a "lien" state and case law has held that a mortgage is not a transfer of "interest" in real property and therefore does not need two subscribing witnesses. Good question though. Let me know if you find the answer.
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?
Yes. The lender has "an interest" via its mortgage in the real property on which the lien is imposed.
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?
Anyone have any thoughts on this?
[Carlton Fields]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
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Tampa, Florida 33607-5780
Direct: 813.229.4105 | Fax: 813.229.4133
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When you say it doesn’t make practical sense, the lender’s priority can’t be affected by a lien that occurs later in the chain absent fraud or some other facts. The lender has a practical remedy, foreclose.
David C. Agee, Esquire
REID & AGEE, PLLC
RIGHT TITLE, LLC
3633 26th Street West
Bradenton, FL 34205
Tel 941.756.8791
Fax 941.755.7311
Ask us about Real Estate and Estate Planning****
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
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?[Scanned]
Dan,
Did anyone ever say that it had to make practical sense? J
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
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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
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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
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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
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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 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] 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] 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> )
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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
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Tampa, Florida 33607-5780
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Agreed. However if the lender signs as bond principal on a lien transfer bond purportedly under F.S. 713.24, the condition to payment under the bond (a form of contract) is proof of the statutory lien requirements, not priority. The lender wins the priority battle against the property in a foreclosure, but may be ordered to pay on the lien transfer bond that it voluntarily gave ostensibly under 713.24.
If the lender wishes to clear the title and transfer the lien from the property to allow transfer of the property at an early stage the lender might seek judicial authority to transfer the lien to a bond on motion where the bond would be sought to be conditioned on proof of priority, not under 713.24, and if the judge so permits. I would expect a lienor to defend such a motion as being without authority. Depending on the situation the court may or may not agree to such a bond by a lender. There is a non-discretionary obligation to transfer where the requirements of 713.24 are met (which a lender does not meet).
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@01CE18FE.9E0FF9D0]
From: David C. Agee [mailto:dagee@reidagee.com]
Sent: Monday, March 04, 2013 5:27 PM
To: Larry Leiby; 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?[Scanned]
When you say it doesn’t make practical sense, the lender’s priority can’t be affected by a lien that occurs later in the chain absent fraud or some other facts. The lender has a practical remedy, foreclose.
David C. Agee, Esquire
REID & AGEE, PLLC
RIGHT TITLE, LLC
3633 26th Street West
Bradenton, FL 34205
Tel 941.756.8791
Fax 941.755.7311
Ask us about Real Estate and Estate Planning****
The information transmitted in this email, including any attachments, is from Reid & Agee, PLLC and is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This electronic information is intended only for the person(s) or entity/entities to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient(s) is strictly prohibited. If you received this in error, please contact the sender via telephone at (941) 756-8791 or reply email and delete the email and any attachments from any computer. Thank You.
IRS Circular 230 Disclosure: To the extent that this message or any attachment concerns tax matters, it is not intended to be used as or intended to constitute a "reliance opinion" under applicable Treasury Regulations, and accordingly this message or any attachment is not intended or written to be used, and may not be used or relied upon, for the purpose of (i) avoiding tax-related penalties that may be imposed by the Internal Revenue Service, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. Please be assured that this policy does not reflect any decrease in the quality of services or the amount of thought that we put in our correspondence.
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
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?[Scanned]
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@01CE18FE.9E0FF9D0]
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
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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.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
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Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
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From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; Leiby@mkpalaw.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.orgmailto: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.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:bkpa1@aol.com
-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.commailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.commailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
[cid:image001.jpg@01CE18FE.9E0FF9D0]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.
John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com
Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
Ph (352) 373-9031 Fax (352) 373-9099
http://npw-law.comhttp://npw-law.com/
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto: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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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses. Good question though. Let me know if you find the answer.
Raymond L. Robinson, Esq.
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?
Yes. The lender has “an interest” via its mortgage in the real property on which the lien is imposed.
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
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email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?
Anyone have any thoughts on this?
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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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A lender may (and not infrequently does) have an interest in the contract under which the lien is claimed. It is common for a construction lender to bargain for (as a condition of making the loan) a conditional assignment of the borrower’s interest in the underlying prime construction contract. Certainly, if that conditional assignment is triggered by a borrower default and the lender’s invocation of its rights under the conditional assignment, then that lender under those circumstances would have “the interest” in the contract under which the lien is claimed to support standing to post a 713.24 lien transfer bond (if it so desired).
The more interesting question is whether the conditional assignment, by itself, creates enough of an “interest” to support the lender applying for a 713.24 lien transfer bond (admittedly hard to think of circumstances where this would occur in the real world).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Monday, March 04, 2013 5:43 PM
To: David C. Agee; 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?[Scanned]
Agreed. However if the lender signs as bond principal on a lien transfer bond purportedly under F.S. 713.24, the condition to payment under the bond (a form of contract) is proof of the statutory lien requirements, not priority. The lender wins the priority battle against the property in a foreclosure, but may be ordered to pay on the lien transfer bond that it voluntarily gave ostensibly under 713.24.
If the lender wishes to clear the title and transfer the lien from the property to allow transfer of the property at an early stage the lender might seek judicial authority to transfer the lien to a bond on motion where the bond would be sought to be conditioned on proof of priority, not under 713.24, and if the judge so permits. I would expect a lienor to defend such a motion as being without authority. Depending on the situation the court may or may not agree to such a bond by a lender. There is a non-discretionary obligation to transfer where the requirements of 713.24 are met (which a lender does not meet).
Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL 33323
Phone: 954-514-0984
Fax: 954-514-0985 e-mail: leiby@mkpalaw.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
[Description: JAMSadr.com.jpg]
From: David C. Agee [mailto:dagee@reidagee.com]
Sent: Monday, March 04, 2013 5:27 PM
To: Larry Leiby; Dan Vega; fred.dudley@hklaw.commailto:fred.dudley@hklaw.com; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a construction lien?[Scanned]
When you say it doesn’t make practical sense, the lender’s priority can’t be affected by a lien that occurs later in the chain absent fraud or some other facts. The lender has a practical remedy, foreclose.
David C. Agee, Esquire
REID & AGEE, PLLC
RIGHT TITLE, LLC
3633 26th Street West
Bradenton, FL 34205
Tel 941.756.8791
Fax 941.755.7311
Ask us about Real Estate and Estate Planning****
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Monday, March 04, 2013 3:53 PM
To: Dan Vega; fred.dudley@hklaw.commailto:fred.dudley@hklaw.com; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?[Scanned]
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.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
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From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
To: Larry Leiby; 'fred.dudley@hklaw.com'; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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
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From: Larry Leiby [mailto:Leiby@mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley@hklaw.com'; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:leiby@mkpalaw.com
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From: Dan Vega [mailto:DVega@taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; Larry Leiby; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
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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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.orgmailto: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.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:bkpa1@aol.com
-----Original Message-----
From: Larry Leiby Leiby@mkpalaw.commailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' hroberts@carltonfields.commailto:hroberts@carltonfields.com>; 'Construction Law Discussion' clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
[Description: JAMSadr.com.jpg]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.
John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com
Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of 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
Fort Myers, FL 33902
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses. Good question though. Let me know if you find the answer.
Raymond L. Robinson, Esq.
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?
Yes. The lender has “an interest” via its mortgage in the real property on which the lien is imposed.
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?
Anyone have any thoughts on this?
[Carlton Fields]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
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Tampa, Florida 33607-5780
Direct: 813.229.4105 | Fax: 813.229.4133
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Many construction lender still use a 3-way contract that requires construction to be progressed without any lien being filed and requiring the owner/borrower to bond off any such liens.
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
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From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Monday, March 04, 2013 4:01 PM
To: Dan Vega; Dudley, Fred R (TAL - X35668); 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?
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.
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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley@hklaw.com'; blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; Leiby@mkpalaw.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:dvega@taylorvega.com
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc@kirwinnorris.commailto:blc@kirwinnorris.com; bkpa1@aol.commailto:bkpa1@aol.com; Leiby@mkpalaw.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby@mkpalaw.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.orgmailto: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.commailto:Leiby@mkpalaw.com; hroberts@carltonfields.commailto:hroberts@carltonfields.com; clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:bkpa1@aol.com
-----Original Message-----
From: Larry Leiby <Leiby@mkpalaw.commailto:Leiby@mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts@carltonfields.commailto:hroberts@carltonfields.com>; 'Construction Law Discussion' <clc-discussion@lists.flabarrpptl.orgmailto: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.commailto:leiby@mkpalaw.com
Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator
Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.
John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john@npw-law.commailto:john@npw-law.com
Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org?] On Behalf Of 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.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses. Good question though. Let me know if you find the answer.
Raymond L. Robinson, Esq.
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?
Yes. The lender has “an interest” via its mortgage in the real property on which the lien is imposed.
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?
Anyone have any thoughts on this?
[Carlton Fields]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida 33607-5780
Direct: 813.229.4105 | Fax: 813.229.4133
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