How do we dispute the information within the lien?

8 months ago

Superior contracted Dylan S. to complete a Low Voltage Wiring project at the Holiday Inn in WI. Dylan did not complete all of the original scope of the contract and it was mutually agreed upon that he would not be completing the full scope of the contract. Superior has been working with Dylan the past weeks to come to a fair resolution of amount due for the completed portion of the original scope of work. During this negotiation period, Solutions has submitted a Wis. Stats. 779.06 lien against Superior on Dec. 18, 2019. Superior holds a contract with Dylan, not Solutions for this project and Dylan did not disclosed that he had Solutions completing his work. We have paid Dylan close to 75% of the agreed upon project amount for work completed and have been working with him to finalize the last payment. According to the lien filed by Solutions, they are claiming that no money has been paid to them and Superior owes them the balance due. As Superior, how can we dispute the information provided for the lien?

Attorney Hurtado Zimmerman SC
1 review

Hello,

To adequately answer your question, I need a bit more information. Specifically, I would like to know more about the relationship of the parties to the property owner, the contents of the contract(s), and whether the December 18, 2019 document was a “Notice of Intent to File Claim for Lien” or a “Claim for Lien.”

If it is true that no money has been paid to a contractor for whom the money is properly owed, then Wisconsin Statute Sec. 779.16 provides:

779.16 Theft by contractors. All moneys, bonds or warrants paid or to become due to any prime contractor or subcontractor for public improvements are a trust fund only in the hands of the prime contractor or subcontractor to the amount of all claims due or to become due or owing from the prime contractor or subcontractor for labor, services, materials, plans, and specifications performed, furnished, or procured for the improvements, until all the claims have been paid, and shall not be a trust fund in the hands of any other person. The use of any such moneys by any prime contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute and then only to the extent of the amount actually in dispute, have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor or subcontractor of moneys so misappropriated and is punishable under s. 943.20. If the prime contractor or subcontractor is a corporation, limited liability company, or other legal entity other than a sole proprietorship, such misappropriation also shall be deemed theft by any officers, directors, members, partners, or agents responsible for the misappropriation. Any of such misappropriated moneys which have been received as salary, dividend, loan repayment, capital distribution or otherwise by any shareholder, member, or partner not responsible for the misappropriation shall be a civil liability of that person and may be recovered and restored to the trust fund specified in this subsection by action brought by any interested party for that purpose. Except as provided in this subsection, this section shall not create a civil cause of action against any person other than the prime contractor or subcontractor to whom such moneys are paid or become due. Until all claims are paid in full, have matured by notice and filing or have expired, such money, bonds and warrants shall not be subject to garnishment, execution, levy or attachment.

Please keep in mind, that we are missing some information needed to give a full and proper answer and sorting out the complexities may be easier to discuss over the phone. Please feel free to give me a call at 414-727-6250 to discuss further.

Bryan T. Kroes

Hurtado Zimmerman SC

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