Foreclosure Notice

Virginia has a special relationship to mechanics liens, as many attribute the modern mechanics lien to Thomas Jefferson. A little more recently, Virginia has made strides in establishing fair lien practices.

In a recent case, a Virginia contractor represented himself against JPMorgan Chase in lien proceedings. While there were plenty of issues with the contractor’s pro se filing, the court answered the question: Are Mechanics Lien Holders Entitled to Notice of Foreclosure? Contractors, subcontractors, and suppliers in Virginia should take note that this court answered “no.”

Facts

Plaintiff, Jan-Michael Weinberg, worked on the property in question starting in 2007. Among the work Weinberg completed was grass, shrub, and flower care, weed killing, tree removal and cutting, and general cleanup. On April 26, 2013, Weinberg filed a lien on the property for $195,000. Shortly thereafter, the owners of the property struggled to keep up with their mortgage payments. The property eventually went into foreclosure, and Chase bought it for $1.4M. JPMorgan Chase & Co. did not notify Weinberg of the foreclosure.

Weinberg filed another mechanics lien on the property in 2015, bringing this action to enforce the lien. Among other arguments, Weinberg claimed that Chase had a duty to notify him of the foreclosure. He also filed a RICO claim, alleging that JPMorgan Chase engaged in a pattern of racketeering to defraud Weinberg out of the amount of his lien claim. Ultimately, due to an array of issues, the court dismissed Weinberg’s claims. While doing so, the court put forth one important principle.

Most Important Takeaway

Both mechanics lien filings put forth by Weinberg were riddled with errors. However, there is one major lesson to be gleaned from the court’s decision to dismiss Weinberg’s claims: holders of mechanics liens are not entitled to receive notice before foreclosure in Virginia.

Under Virginia Code §55-59.1, notice of sale must be provided to

“(i) the present owner of the property to be sold, . . .(ii) any subordinate lienholder who holds a note against the property secured by a deed of trust . . ., (iii) any assignee of such a note secured by a deed of trust . . ., (iv) any condominium unit owners’ association which has filed a lien pursuant to § 55-79.84, (v) any property owners’ association which has filed a lien pursuant to § 55-516, and (vi) any proprietary lessees’ association which has filed a lien pursuant to § 55-472”

Under the court’s interpretation, mortgage holders do not have a duty to inform mechanics lien holders of plans to foreclose on the property. Therefore JPMorgan Chase & Co. did not act improperly by failing to provide notice to Weinberg of the foreclosure sale. So while the court found that Weinberg’s claims were not properly filed, even if they had been, Chase would not have been required to provide notice.

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But also…

You don’t have to go it alone! Filing a lien without assistance can lead to some serious oversights.

Here are some of the other issues with Mr. Weinberg’s liens:

Had he read our Virginia Lien and Notice FAQs or our posts on other considerations in Virginia lien law, he could have avoided many, if not all, of these problems.

Summary
Are Mechanics Lien Holders Entitled to Notice of Foreclosure?
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Are Mechanics Lien Holders Entitled to Notice of Foreclosure?
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A Virginia court found mechanics lien holders are not entitled to notice of foreclosure from mortgage holders. Knowing the priority of your lien is a must.
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Levelset
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