HB 1247
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida. It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed. Additionally it creates new causes of action creating substantial unnecessary litigation. We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf. Sincerely, Barry Kalmanson500 N Maitland AvenueSuite 305 Maitland, Fl. 32751407-645-4500 x 215 www.barrykalmanson.com
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttp://www.barrykalmanson.com
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
What is the purpose of a Notice of Non-Payment? (NNP)
I understand it to be just that – a NOTICE.
Currently we all know that the NNP must “be provided” within 90 day of last work and includes:
The name and address of the lienor;
The name and address of the surety;
Description of the services provided, or materials furnished;
The address of the real property improved;
The amount due and unpaid; and
The lienor’s signature.
This bill ups the notice requirement for the NNP (additions in RED) and we are no longer filing a “notice” but a full-blown claim – a lawsuit in all but name.
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony); and
The lienor’s signature and address.
Clearly including all the extra material amounts to a burden – contracts can run dozens of pages, invoices, pay requests, bills of lading?
Next, we have a sneaky way to file a Conditional Payment Bond
The bill provides an additional way for a contractor to record a conditional bond.
The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC,
a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
Now we get to look in additional locations for information – that makes things easier – not.
Here is exactly what the Legislative Substantive Analysis says:
“C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Unknown. It is unclear if the additional provisions required in order to serve a notice of nonpayment will have an effect on the private sector. The new provisions may make it more difficult for a subcontractor to file a notice of non-payment. Other provisions may make it easier to collect attorney’s fees for the prevailing contractor if a claim is made.”
Sorry for wasting your time, but I think this bill has problems.
[cid:image003.png@01D4DF05.146CEB60]https://www.npw-law.com/
From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson bkpa1@aol.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttp://www.barrykalmanson.com
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
Unless I have somehow missed an email, are we going to hold a committee meeting to discuss this latest abomination coming out of the Business and Professions Subcommittee of the Florida House and amended House Bill 1247 and get a consensus on having The Bar lobby against same?
Regards,
Robert B. Worman
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, FL 32789
407 843-5353
rworman@wormanlaw.commailto:rworman@wormanlaw.com
www.wormanlaw.comhttp://www.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 DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Jeffrey Price
Sent: Wednesday, March 20, 2019 10:10 AM
To: Dan Vega DVega@TEVTLaw.com; Barry Kalmanson bkpa1@aol.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
What is the purpose of a Notice of Non-Payment? (NNP)
I understand it to be just that – a NOTICE.
Currently we all know that the NNP must “be provided” within 90 day of last work and includes:
The name and address of the lienor;
The name and address of the surety;
Description of the services provided, or materials furnished;
The address of the real property improved;
The amount due and unpaid; and
The lienor’s signature.
This bill ups the notice requirement for the NNP (additions in RED) and we are no longer filing a “notice” but a full-blown claim – a lawsuit in all but name.
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony); and
The lienor’s signature and address.
Clearly including all the extra material amounts to a burden – contracts can run dozens of pages, invoices, pay requests, bills of lading?
Next, we have a sneaky way to file a Conditional Payment Bond
The bill provides an additional way for a contractor to record a conditional bond.
The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC,
a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
Now we get to look in additional locations for information – that makes things easier – not.
Here is exactly what the Legislative Substantive Analysis says:
“C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Unknown. It is unclear if the additional provisions required in order to serve a notice of nonpayment will have an effect on the private sector. The new provisions may make it more difficult for a subcontractor to file a notice of non-payment. Other provisions may make it easier to collect attorney’s fees for the prevailing contractor if a claim is made.”
Sorry for wasting your time, but I think this bill has problems.
[cid:image002.png@01D4DF08.69F14920]https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.npw-law.com%2F&data=02%7C01%7Crworman%40wormanlaw.com%7C92fb67eea3ea4bad85af08d6ad405512%7C68fc084f55084277b842e0ec34a978fa%7C0%7C0%7C636886889157427066&sdata=tRDtzboa4FeZc3Gh7KrQs5lgp98Pg8HoL7YEDXOQ8KI%3D&reserved=0
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttps://nam05.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.barrykalmanson.com&data=02%7C01%7Crworman%40wormanlaw.com%7C92fb67eea3ea4bad85af08d6ad405512%7C68fc084f55084277b842e0ec34a978fa%7C0%7C0%7C636886889157437070&sdata=%2Fb0Vo1oSS0xkKY3PXKu5ghtbXvM66TGmcBBY9z8jI5I%3D&reserved=0
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussionhttps://nam05.safelinks.protection.outlook.com/?url=http%3A%2F%2Fmailman.fsr.com%2Fmailman%2Flistinfo%2Fclc-discussion&data=02%7C01%7Crworman%40wormanlaw.com%7C92fb67eea3ea4bad85af08d6ad405512%7C68fc084f55084277b842e0ec34a978fa%7C0%7C1%7C636886889157447084&sdata=S4siaHKofXaZuUmdELB%2FleKESK4FfK3FyuI%2F9oDe9G0%3D&reserved=0
Agreed that the requirements for NNP are extremely burdensome. If a trade on a large project is serving the NNP, the “contract” would include the prime contract between the GC and the owner and alone involve not dozens but hundreds of pages.
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Jeffrey Price
Sent: Wednesday, March 20, 2019 10:10 AM
To: Dan Vega DVega@TEVTLaw.com; Barry Kalmanson bkpa1@aol.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
What is the purpose of a Notice of Non-Payment? (NNP)
I understand it to be just that – a NOTICE.
Currently we all know that the NNP must “be provided” within 90 day of last work and includes:
The name and address of the lienor;
The name and address of the surety;
Description of the services provided, or materials furnished;
The address of the real property improved;
The amount due and unpaid; and
The lienor’s signature.
This bill ups the notice requirement for the NNP (additions in RED) and we are no longer filing a “notice” but a full-blown claim – a lawsuit in all but name.
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony); and
The lienor’s signature and address.
Clearly including all the extra material amounts to a burden – contracts can run dozens of pages, invoices, pay requests, bills of lading?
Next, we have a sneaky way to file a Conditional Payment Bond
The bill provides an additional way for a contractor to record a conditional bond.
The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC,
a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
Now we get to look in additional locations for information – that makes things easier – not.
Here is exactly what the Legislative Substantive Analysis says:
“C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Unknown. It is unclear if the additional provisions required in order to serve a notice of nonpayment will have an effect on the private sector. The new provisions may make it more difficult for a subcontractor to file a notice of non-payment. Other provisions may make it easier to collect attorney’s fees for the prevailing contractor if a claim is made.”
Sorry for wasting your time, but I think this bill has problems.
From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org > On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.com mailto:bkpa1@aol.com >
Cc: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.com mailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.com mailto:bkpa1@aol.com > wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.com http://www.barrykalmanson.com
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.org mailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
All,
I’ve asked Sanjay and Sean if they can set up a call to discuss. One of them will be responding accordingly. Stay tuned.
Thanks,
Scott
Scott P. Pence | Carlton Fields
Board Certified in Construction Law by The Florida Bar
Direct: 813.229.4322 | Fax: 813.229.4133
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida 33607-5780
biohttp://www.cfjblaw.com/spence/ | vcardhttp://www.cfjblaw.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=7 | linkedinhttp://www.linkedin.com/in/pencescott
From: Robert Worman rworman@wormanlaw.com
Sent: Wednesday, March 20, 2019 10:38 AM
To: Jeffrey Price jeff@npw-law.com; Dan Vega DVega@TEVTLaw.com; Barry Kalmanson bkpa1@aol.com; Wright, Wm. Cary cwright@carltonfields.com; 'Reese J. Henderson, Jr.' Reese.Henderson@gray-robinson.com; 'Sean Mickley' sam@kirwinnorris.com; Rocco Cafaro rocco.cafaro@hwhlaw.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] HB 1247
Unless I have somehow missed an email, are we going to hold a committee meeting to discuss this latest abomination coming out of the Business and Professions Subcommittee of the Florida House and amended House Bill 1247 and get a consensus on having The Bar lobby against same?
Regards,
Robert B. Worman
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, FL 32789
407 843-5353
rworman@wormanlaw.commailto:rworman@wormanlaw.com
www.wormanlaw.comhttp://www.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 DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Jeffrey Price
Sent: Wednesday, March 20, 2019 10:10 AM
To: Dan Vega <DVega@TEVTLaw.commailto:DVega@TEVTLaw.com>; Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
What is the purpose of a Notice of Non-Payment? (NNP)
I understand it to be just that – a NOTICE.
Currently we all know that the NNP must “be provided” within 90 day of last work and includes:
The name and address of the lienor;
The name and address of the surety;
Description of the services provided, or materials furnished;
The address of the real property improved;
The amount due and unpaid; and
The lienor’s signature.
This bill ups the notice requirement for the NNP (additions in RED) and we are no longer filing a “notice” but a full-blown claim – a lawsuit in all but name.
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony); and
The lienor’s signature and address.
Clearly including all the extra material amounts to a burden – contracts can run dozens of pages, invoices, pay requests, bills of lading?
Next, we have a sneaky way to file a Conditional Payment Bond
The bill provides an additional way for a contractor to record a conditional bond.
The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC,
a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
Now we get to look in additional locations for information – that makes things easier – not.
Here is exactly what the Legislative Substantive Analysis says:
“C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Unknown. It is unclear if the additional provisions required in order to serve a notice of nonpayment will have an effect on the private sector. The new provisions may make it more difficult for a subcontractor to file a notice of non-payment. Other provisions may make it easier to collect attorney’s fees for the prevailing contractor if a claim is made.”
Sorry for wasting your time, but I think this bill has problems.
[cid:image001.png@01D4DF19.729634D0]https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.npw-law.com%2F&data=02%7C01%7Crworman%40wormanlaw.com%7C92fb67eea3ea4bad85af08d6ad405512%7C68fc084f55084277b842e0ec34a978fa%7C0%7C0%7C636886889157427066&sdata=tRDtzboa4FeZc3Gh7KrQs5lgp98Pg8HoL7YEDXOQ8KI%3D&reserved=0
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttps://nam05.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.barrykalmanson.com&data=02%7C01%7Crworman%40wormanlaw.com%7C92fb67eea3ea4bad85af08d6ad405512%7C68fc084f55084277b842e0ec34a978fa%7C0%7C0%7C636886889157437070&sdata=%2Fb0Vo1oSS0xkKY3PXKu5ghtbXvM66TGmcBBY9z8jI5I%3D&reserved=0
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussionhttps://nam05.safelinks.protection.outlook.com/?url=http%3A%2F%2Fmailman.fsr.com%2Fmailman%2Flistinfo%2Fclc-discussion&data=02%7C01%7Crworman%40wormanlaw.com%7C92fb67eea3ea4bad85af08d6ad405512%7C68fc084f55084277b842e0ec34a978fa%7C0%7C1%7C636886889157447084&sdata=S4siaHKofXaZuUmdELB%2FleKESK4FfK3FyuI%2F9oDe9G0%3D&reserved=0
UPDATE – 3/20/2:45PM
Changes were made yesterday – I have struck through the items that were cut by amendment
Now, the NNP is more in-keeping with what we already have – they are simply rearranging the deck chairs, so I have no issue here.
But I still have a big issue with the next part which was not addressed:
The new, sneaky way to file a Conditional Payment Bond:
The bill provides an additional way for a contractor to record a conditional bond. The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC, a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
I do not see why, if the payment bond is conditional upon payment by the Owner, that can’t be required to be stated upfront.
Why “in lieu of”? Not to save money, because that’s an extra filing fee and action. Not because you got the bond later, because it says you must file it before beginning work. So what is the reason if not to be a sneaky little shit (borrowing language from Animal House, remember Niedermeyer?).
Under this scheme, the Contractor has a conditional payment bond in place, refuses to record it with the NOC, (even though they have it), do a separate filing of just the bond, and now we have a secrete bond that comes out only when a claim is made. My guy may not have wanted to do the job I they knew the bond was conditional. But was he given any knowledge, any choice, or was the knowledge hidden (in plain sight buried in the public records)? If you want to buy a conditional bond, go buy one. That’s the market at work. But don’t hide that fact. It appears that the people pushing this idea know full well that a conditional bond sucks and they want to hide that fact. Come on, be proud of your conditional bond – bring it out of the closet!
Now we get to look in additional locations for information – that makes things easier – not.
For those of you trying to keep up, here is the original bill and changes made so far.
This bill ups the notice requirement for the NNP (additions in RED)
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
The lienor’s signature and address.
This stuff was in the above, but was cut – good:
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony);
[cid:image002.png@01D4DF2A.06B51C20]https://www.npw-law.com/
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttp://www.barrykalmanson.com
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
At least the noc still requires that a surety be identified.
However I agree with you 100 percent.
In the end, someone needs to let the lawmakers know that a conditional bond will always be treated as a different bond to some lienors on a project.
The reason is simple: the contractor can only control the inclusion of pay when paid language in its contract with its subs. Subssubs and material supliers wil likely never have pay when paid language in their contracts and proposals. And pay when paid language is a condition precedent to the existence of a 713.245 bond.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 20, 2019, at 3:02 PM, Jeffrey Price <jeff@npw-law.commailto:jeff@npw-law.com> wrote:
UPDATE – 3/20/2:45PM
Changes were made yesterday – I have struck through the items that were cut by amendment
Now, the NNP is more in-keeping with what we already have – they are simply rearranging the deck chairs, so I have no issue here.
But I still have a big issue with the next part which was not addressed:
The new, sneaky way to file a Conditional Payment Bond:
The bill provides an additional way for a contractor to record a conditional bond. The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC, a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
I do not see why, if the payment bond is conditional upon payment by the Owner, that can’t be required to be stated upfront.
Why “in lieu of”? Not to save money, because that’s an extra filing fee and action. Not because you got the bond later, because it says you must file it before beginning work. So what is the reason if not to be a sneaky little shit (borrowing language from Animal House, remember Niedermeyer?).
Under this scheme, the Contractor has a conditional payment bond in place, refuses to record it with the NOC, (even though they have it), do a separate filing of just the bond, and now we have a secrete bond that comes out only when a claim is made. My guy may not have wanted to do the job I they knew the bond was conditional. But was he given any knowledge, any choice, or was the knowledge hidden (in plain sight buried in the public records)? If you want to buy a conditional bond, go buy one. That’s the market at work. But don’t hide that fact. It appears that the people pushing this idea know full well that a conditional bond sucks and they want to hide that fact. Come on, be proud of your conditional bond – bring it out of the closet!
Now we get to look in additional locations for information – that makes things easier – not.
For those of you trying to keep up, here is the original bill and changes made so far.
This bill ups the notice requirement for the NNP (additions in RED)
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
The lienor’s signature and address.
This stuff was in the above, but was cut – good:
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony);
<image002.png>https://www.npw-law.com/
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttp://www.barrykalmanson.com
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
Sent from my iPhone
CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
The problem with a conditional payment bond that is not disclosed as such is that the lienor likely will only learn that fact after its lien rights already have expired. That’s the reason for the current language in 713.245 that requires all the disclosures it requires – to let lienors know they need to file a lien and not rely upon the bond. Allowing a separate filing of the conditional bond with no notification to lienors removes those protections for lienors.
Reese J. Henderson, Jr. | Shareholder
Florida Bar Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil Mediator
G R A Y | R O B I N S O N
50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega
Sent: Wednesday, March 20, 2019 3:13 PM
To: Jeffrey Price
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
This message originated outside of GrayRobinson.
At least the noc still requires that a surety be identified.
However I agree with you 100 percent.
In the end, someone needs to let the lawmakers know that a conditional bond will always be treated as a different bond to some lienors on a project.
The reason is simple: the contractor can only control the inclusion of pay when paid language in its contract with its subs. Subssubs and material supliers wil likely never have pay when paid language in their contracts and proposals. And pay when paid language is a condition precedent to the existence of a 713.245 bond.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 20, 2019, at 3:02 PM, Jeffrey Price <jeff@npw-law.commailto:jeff@npw-law.com> wrote:
UPDATE – 3/20/2:45PM
Changes were made yesterday – I have struck through the items that were cut by amendment
Now, the NNP is more in-keeping with what we already have – they are simply rearranging the deck chairs, so I have no issue here.
But I still have a big issue with the next part which was not addressed:
The new, sneaky way to file a Conditional Payment Bond:
The bill provides an additional way for a contractor to record a conditional bond. The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC, a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
I do not see why, if the payment bond is conditional upon payment by the Owner, that can’t be required to be stated upfront.
Why “in lieu of”? Not to save money, because that’s an extra filing fee and action. Not because you got the bond later, because it says you must file it before beginning work. So what is the reason if not to be a sneaky little shit (borrowing language from Animal House, remember Niedermeyer?).
Under this scheme, the Contractor has a conditional payment bond in place, refuses to record it with the NOC, (even though they have it), do a separate filing of just the bond, and now we have a secrete bond that comes out only when a claim is made. My guy may not have wanted to do the job I they knew the bond was conditional. But was he given any knowledge, any choice, or was the knowledge hidden (in plain sight buried in the public records)? If you want to buy a conditional bond, go buy one. That’s the market at work. But don’t hide that fact. It appears that the people pushing this idea know full well that a conditional bond sucks and they want to hide that fact. Come on, be proud of your conditional bond – bring it out of the closet!
Now we get to look in additional locations for information – that makes things easier – not.
For those of you trying to keep up, here is the original bill and changes made so far.
This bill ups the notice requirement for the NNP (additions in RED)
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
The lienor’s signature and address.
This stuff was in the above, but was cut – good:
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony);
<image002.png>https://www.npw-law.com/
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
Sent from my iPhone
Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttp://www.barrykalmanson.com
<loaddoc.aspx.pdf>
Deborah E. Lawson
(850) 570-0033
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The problem with the comment below Dan’s is that it entirely misses the fact that the responsibility to prepare and record the NOC falls to the Owner or Lender, not the Contractor. So the suggestion that the Contractor is somehow being sneaky is misleading. Rather, the whole purpose of the suggested change is to avoid penalizing the Contractor for something the Owner/Lender does that is not within the Contractor’s control (i.e., preparing and recording the NOC and deciding what is attached to it and what is not). Further, what makes the current situation even more problematic is the fact that the Owner/Lender (the parties preparing and recording the NOC) are incentivized to not record the NOC properly (by failing to reference or attach the bond).
Stated simply, the goal is to modify the statute so that the GC is not penalized for something that is not within the GC’s control, not to sneak something by anyone.
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega
Sent: Wednesday, March 20, 2019 3:13 PM
To: Jeffrey Price jeff@npw-law.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
At least the noc still requires that a surety be identified.
However I agree with you 100 percent.
In the end, someone needs to let the lawmakers know that a conditional bond will always be treated as a different bond to some lienors on a project.
The reason is simple: the contractor can only control the inclusion of pay when paid language in its contract with its subs. Subssubs and material supliers wil likely never have pay when paid language in their contracts and proposals. And pay when paid language is a condition precedent to the existence of a 713.245 bond.
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Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 20, 2019, at 3:02 PM, Jeffrey Price <jeff@npw-law.commailto:jeff@npw-law.com> wrote:
UPDATE – 3/20/2:45PM
Changes were made yesterday – I have struck through the items that were cut by amendment
Now, the NNP is more in-keeping with what we already have – they are simply rearranging the deck chairs, so I have no issue here.
But I still have a big issue with the next part which was not addressed:
The new, sneaky way to file a Conditional Payment Bond:
The bill provides an additional way for a contractor to record a conditional bond. The bill also provides that failing to properly record a conditional payment bond does not preclude the bond from being a conditional payment bond. That’s a change
The bill provides that in lieu of listing the bond as a conditional payment bond on the NOC and recording the bond with the NOC, a contractor may record a notice identifying the bond as a conditional payment bond with the bond attached before the contractor begins work on the project in a separate filing.
I do not see why, if the payment bond is conditional upon payment by the Owner, that can’t be required to be stated upfront.
Why “in lieu of”? Not to save money, because that’s an extra filing fee and action. Not because you got the bond later, because it says you must file it before beginning work. So what is the reason if not to be a sneaky little shit (borrowing language from Animal House, remember Niedermeyer?).
Under this scheme, the Contractor has a conditional payment bond in place, refuses to record it with the NOC, (even though they have it), do a separate filing of just the bond, and now we have a secrete bond that comes out only when a claim is made. My guy may not have wanted to do the job I they knew the bond was conditional. But was he given any knowledge, any choice, or was the knowledge hidden (in plain sight buried in the public records)? If you want to buy a conditional bond, go buy one. That’s the market at work. But don’t hide that fact. It appears that the people pushing this idea know full well that a conditional bond sucks and they want to hide that fact. Come on, be proud of your conditional bond – bring it out of the closet!
Now we get to look in additional locations for information – that makes things easier – not.
For those of you trying to keep up, here is the original bill and changes made so far.
This bill ups the notice requirement for the NNP (additions in RED)
The name of the contractor and the contractor’s address;
The name of the surety and the surety’s address;
The nature of the labor or services performed;
The nature of labor or services to be performed, if known;
The materials furnished;
The materials to be furnished, if known;
The amount received by the lienor;
The amount due the lienor and the amount to become due, if known;
The lienor’s signature and address.
This stuff was in the above, but was cut – good:
Copies of the following documents if they exist;
The lienor’s contract or purchase order and any amendments thereto;
Invoices, pay requests, bills of lading, delivery receipts, or similar documents; and
A statement of account reflecting all payments requested and received for the labor, services, or materials.
Written verification of the notice of nonpayment in accordance with s. 92.525. (Pursuant to s. 92.525, a person who knowingly makes a false written declaration is guilty of a third degree felony);
<image002.png>https://www.npw-law.com/
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Dan Vega
Sent: Tuesday, March 19, 2019 8:48 PM
To: Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] HB 1247
Thanks Barry.
I would like to participate on the call.
Working in Miami for the past 20 years, where a large portion of the subs speak mainly Spanish, the notice of non payment amendment will certainly make it more difficult for these companies to perfect their claims without the assistance of counsel.
On 713.245 amendment, what is the purpose of recording the notice identifying bond as conditional if nothing occurs if it is not recorded ?
And isnt 713.245 supposed to sunset at some point? No owner with half a brain will purchase one of these bonds especially since as I understand it, they cost the same as a 713.23 bond.
Also, why would the legislature equate a notice of non payment to an encumbrance on real estate?
Finally, am I reading this amendment right so that if passed, 627.428 will apply to a payment bond claimant’s fee claim - net judgment instead of significant issues?
Thank you.
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Daniel R. Vega, Esq.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Court Mediator
Taylor Espino Vega & Touron, PLLC
201 Alhambra Circle, Suite 801
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega@tevtlaw.commailto:dvega@tevtlaw.com
On Mar 19, 2019, at 7:11 PM, Barry Kalmanson <bkpa1@aol.commailto:bkpa1@aol.com> wrote:
Today the Business and Professions Subcommittee of the Florida House amended House Bill 1247 with the attached. As you will note it will make it almost impossible for a claimant to recover on a payment bond in Florida.
It also permits contractors after the notice of commencement is recorded to record an unspecified notice that a bond is conditional without serving it on any claimant. Claimants will have NO notice of the recorded document and not know how to properly proceed.
Additionally it creates new causes of action creating substantial unnecessary litigation.
We should immediately hold a conference call to vote on the proposed bill and have our lobbyist act on our behalf.
Sincerely,
Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215
www.barrykalmanson.comhttp://www.barrykalmanson.com
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Deborah E. Lawson
(850) 570-0033
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