Home>Levelset Community>Legal Help>Does a Mechanics Lien take priority and first position when filed over the other party responding with a Summons and Complaint because of the Mechanics Lien?

Does a Mechanics Lien take priority and first position when filed over the other party responding with a Summons and Complaint because of the Mechanics Lien?

South CarolinaLawsuitMechanics LienPayment Disputes

I hired your company to place 2 mechanics liens on the woman that I did work for on her commercial property . One lien was on the actual property and the other lien was on her personal home because she personally guaranteed me with her word and promise accompanied by her handshake. After she was served with the liens, she hired an attorney to file a summons and complaint against me claiming breach of contract by builder, breach of contract accompanied by fraud, slander of title, defamation, abuse of process and unfair trade practices. I spoke to an attorney and I can not get any clear answers on the weight of this lien to allow me to be in the drivers seat vs. her. They just insist that since I did not file a suit against her first then I have to take the back seat and engage in a one to two year battle to defend my position which the cost will exceed the amount of money that she owes me and claim that I am not entitled to reimbursement of attorney fees. They also said that if I would of filed the summons and complaint first then they would of taken it on a contingency. I asked them if my lien counted for starting the case and they said yes and no. My questions to you are for clarity. What does this lien afford me, Plaintiff's position, attorney fees and where do I go from here? I am on my 153rd day after last day of work . Time is sensitive and I thank you in advance for your help.

1 reply

Mar 9, 2018
It seems like there may be some mixing and matching of legal principles here. Mechanics lien priority and "positioning" refers to a situation where multiple security interests have been filed against the same property. Instead, this sounds more like a question about court procedure. Here's a resource on Mechanics Lien Priority that might help clear things up: Lien Priority. Further, while a lien against property may certainly be created in other ways, generally, mechanics liens should only be utilized to create a security interest in property where actual construction work has taken (or is taking) place. A mechanics lien filed for a different purpose could quite possibly be considered improper, fraudulent, frivolous, or as a slander of title, among other issues, and penalties may be incurred as a result of such a filing. Typically, though, the release of an improper lien will help alleviate the dispute. For more information on fraudulent lien filings and potential penalties, this resource is available: Frivolous Mechanics Liens. Regarding a drivers seat and whether or not filing a mechanics lien constitutes filing suit - in most states, including South Carolina, filing a mechanics lien does not actually constitute filing suit. Rather, a lien is a filing in the property records against a particular property (where construction work was performed). However, to foreclose or enforce a mechanics lien, initiating suit is required - but filing and enforcing a lien are two separate processes, and the enforcement of a lien is typically not necessary to recover payment owed for construction work. After such a suit is initiated, though, the award of costs and attorney fees are actually mandatory to the prevailing party in South Carolina. As far as any next steps are concerned, if an owner has threatened or initiated suit, it would be wise to hire an attorney that is familiar with construction and lien law. They will be able to review your lien claims and the surrounding circumstances and help you create a plan of action to move forward. As a final note - a South Carolina lien enforcement action must be filed within 6 months of a lien filing. Prior to filing an enforcement action, though, further negotiations to attempt to resolve the dispute are a good idea - litigation can be expensive and unpredictable.
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