It has been my view that the provision allowing liens to be secured by a
713.23 bond given after NOC, or which was in existence but the owner
neglected to reference or attach to the NOC by the filing of a "verified"
713.23(2) Notice of Bond, is a reference to FS 92.525 specifying the manner
for "verification" of documents required or permitted by law, etc.

Basically, I see it as saying that whomever executes that Notice swears
under oath (in the manner at FS 92.525) to the statements in the notice
(i.e., that the lien of the person "noticed" is secured by the attached
bond).  But that obviously is not really the end of the story, unless the
"verifier" happens to be a duly authorized officer or agent of the surety
itself .

GTE

Gregory T. Elliott

ELLIOTT - BERGER, P. A.

10225 Ulmerton Road, Suite 4A
Largo, Florida  33771

(727) 350-2500  (Phone)

(727) 369-6588  (Fax)

Board Certified Construction Lawyer

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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Thursday, September 29, 2011 12:32 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] "Verification" of Payment Bond

What is the meaning of the following language in FS 713.23(2) concerning a
"Notice of Bond": "The notice shall be verified."  I have not been able to
find any case law.  I interpret it as meaning verified by the surety that
the bond is, indeed, valid an in effect.  A bond was recorded with the NOC,
but the NOC expired before the project was complete, and, in an abundance of
caution, I filed both a Notice of Nonpayment and a claim of lien.  The
owner's attorney signed and recorded a "Notice of Bond" and attached a copy
of the bond that was recorded with the NOC.  Does that satisfy the
"verified" requirement and does this constitute a transfer of the lien to
bond?

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com

Chuck,

I agree that the person recording the bond [contractor or any person having an interest in the property per 713.23(2)] is the one that should do the verification of the notice of bond pursuant to 92.525.  It is not the surety.  You can certainly contest whether the lawyer who signed (and verified?) the notice of bond is in the class of persons who are authorized to prepare, or thus verify, a notice of bond, unless the attorney is designated agent for the contractor or person with property ownership interest.  As Mr. Elliott points out if the person who records the bond records a problematic bond (problematic so that the surety argues that the bond is not proper) that is another set of issues.

If the notice of bond does not comport with 713.23(2) arguably it does not clear the lien.  I would want to flush that out with the surety (and lawyer who recorded the notice) quickly, or file a motion/action with the court, to declare that the notice and bond complies with 713.23(2) before you get a later argument about BFP's or acquiescence (whether or not such arguments would be successful).  Of course if the bond complies with 713.23, and the claim is covered under the bond (under the contract with contractor/principal), then the property is exempt from the lien anyway.

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. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg Elliott
Sent: Thursday, September 29, 2011 1:44 PM
To: CHernicz@herniczlegal.com; 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] "Verification" of Payment Bond

It has been my view that the provision allowing liens to be secured by a 713.23 bond given after NOC, or which was in existence but the owner neglected to reference or attach to the NOC by the filing of a "verified" 713.23(2) Notice of Bond, is a reference to FS 92.525 specifying the manner for "verification" of documents required or permitted by law, etc.

Basically, I see it as saying that whomever executes that Notice swears under oath (in the manner at FS 92.525) to the statements in the notice (i.e., that the lien of the person "noticed" is secured by the attached bond).  But that obviously is not really the end of the story, unless the "verifier" happens to be a duly authorized officer or agent of the surety itself .

GTE

Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida  33771
(727) 350-2500  (Phone)
(727) 369-6588  (Fax)
Board Certified Construction Lawyer

[cid:image001.gif@01CC7EB1.8E7671E0]
NOTICE OF CONFIDENTIALITY: This message and its attachments are intended solely for the use of the addressee. In addition, this message and the attachments may contain information that is confidential, privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error, please promptly notify the sender by reply E-mail and immediately delete this message from your system.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Thursday, September 29, 2011 12:32 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] "Verification" of Payment Bond

What is the meaning of the following language in FS 713.23(2) concerning a "Notice of Bond": "The notice shall be verified."  I have not been able to find any case law.  I interpret it as meaning verified by the surety that the bond is, indeed, valid an in effect.  A bond was recorded with the NOC, but the NOC expired before the project was complete, and, in an abundance of caution, I filed both a Notice of Nonpayment and a claim of lien.  The owner's attorney signed and recorded a "Notice of Bond" and attached a copy of the bond that was recorded with the NOC.  Does that satisfy the "verified" requirement and does this constitute a transfer of the lien to bond?

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com

Seeking termite expert.  Any referrals are appreciated.

Justin R. Zinzow | Zinzow Law
[cid:image002.jpg@01CC7FBA.3EA447A0]Board Certified Construction Specialist
35111 U.S. Highway 19 N.
Suite 302
Palm Harbor, FL 34684
Ph: (727) 787-3121
Fax: (727) 787-3231
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/Attorneys.aspx

[cid:image003.jpg@01CC7FBA.3EA447A0]

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 attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 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 the sender.  Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.

Justin:

Have you tried Pete Cardillo, Esq?  He specializes in bug law, and, assuming
he is not on the other side, might be a good resource.

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

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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Justin
Zinzow
Sent: Friday, September 30, 2011 9:45 PM
To: 'RPPTL constructionlaw'
Cc: Craig Miller
Subject: [RPPTL-constructionlaw] termite expert

Seeking termite expert.  Any referrals are appreciated.

Justin R. Zinzow | Zinzow Law

Board Certified Construction Specialist

35111 U.S. Highway 19 N.

Suite 302

Palm Harbor, FL 34684

Ph: (727) 787-3121

Fax: (727) 787-3231

Website http://www.zinzowlaw.com/  | Bio
http://www.zinzowlaw.com/Attorneys.aspx

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 attachments to it. If you
have received this e-mail in error, please notify us immediately by return
e-mail or by telephone at 727-787-3121 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 the sender.  Disclaimer under
Circular 230: Any statements regarding tax matters made herein, including
any attachments, are not formal tax opinions by this firm, cannot be relied
upon or used by any person to avoid tax penalties, are not intended to be
advice to avoid tax laws or penalties, and are not intended to be used or
referred to in any marketing or promotional materials.

Owner, contractor , surety, each class of "lienor", and indemnitors  who
make surety whole, each have a stake in the battle over consequences of
different treatments that lien and bond might be given ultimately under the
set of facts for which your opinions are offered.

For purpose of being able to deliver insured title, the most conservative
approach is to decline title insurance unless the liability for lien is
covered by a separate security given to the title insurer.

For lienor the most conservative approach is to pursue all alternative
remedies until settlement or judicial final order is entered. The early
cases involving 713.245 show loss of bond or loss of lien rights for
guessing wrong on future judicial interpretation of statute or bond or "pay
if paid" arguments are being made. As long as there is any uncertainty each
contestant has to seek paths for resolution that make safe its ultimate
result.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Thursday, September 29, 2011 1:44 PM
To: CHernicz@herniczlegal.com; 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] "Verification" of Payment Bond

It has been my view that the provision allowing liens to be secured by a
713.23 bond given after NOC, or which was in existence but the owner
neglected to reference or attach to the NOC by the filing of a "verified"
713.23(2) Notice of Bond, is a reference to FS 92.525 specifying the manner
for "verification" of documents required or permitted by law, etc.

Basically, I see it as saying that whomever executes that Notice swears
under oath (in the manner at FS 92.525) to the statements in the notice
(i.e., that the lien of the person "noticed" is secured by the attached
bond).  But that obviously is not really the end of the story, unless the
"verifier" happens to be a duly authorized officer or agent of the surety
itself .

GTE

Gregory T. Elliott

ELLIOTT - BERGER, P. A.

10225 Ulmerton Road, Suite 4A
Largo, Florida  33771

(727) 350-2500  (Phone)

(727) 369-6588  (Fax)

Board Certified Construction Lawyer

NOTICE OF CONFIDENTIALITY: This message and its attachments are intended
solely for the use of the addressee. In addition, this message and the
attachments may contain information that is confidential, privileged and
exempt from disclosure under applicable law. If you are not the intended
recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating or otherwise using this
transmission. Delivery of this message to any person other than the intended
recipient is not intended to waive any right or privilege. If you have
received this message in error, please promptly notify the sender by reply
E-mail and immediately delete this message from your system.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Thursday, September 29, 2011 12:32 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] "Verification" of Payment Bond

What is the meaning of the following language in FS 713.23(2) concerning a
"Notice of Bond": "The notice shall be verified."  I have not been able to
find any case law.  I interpret it as meaning verified by the surety that
the bond is, indeed, valid an in effect.  A bond was recorded with the NOC,
but the NOC expired before the project was complete, and, in an abundance of
caution, I filed both a Notice of Nonpayment and a claim of lien.  The
owner's attorney signed and recorded a "Notice of Bond" and attached a copy
of the bond that was recorded with the NOC.  Does that satisfy the
"verified" requirement and does this constitute a transfer of the lien to
bond?

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com