next steps after Amending lien because wrong owner listed

3 weeks ago

At the time we did the due diligence and research, we only could identify one HOA for the entire development. All research led to Highpoint Condo Assoc located at 204 Manatee Ln, Fort Pierce, Fl. Because the contract (Exhibit A-1238 & Exhibit A-828) between BDR & Highpoint referenced the same address, we believed we had the correct HOA. There was no indication that there was more than one HOA in that development. I will refer to the 3 projects as 1238, 830 & 828. Below is the timeframe on each job.
Job 828:
May 29 – BDR requested materials – Material order #1 – $7,038.57
June 18 – Material Delivery confirmed
July 18 – Prelien sent (Exhibit B-828) (30 days after materials delivered)
Sept 10 – lien recorded (Exhibit C-828) (84 days after materials delivered) suppliers have 90 days to record lien.
Oct 14 – Jesse spoke with Steve at Highpoint Condo Assoc (Section I) and was told that all 3 properties were located in HOA Section III.
Based on this information it was determined that Billd would attempt to AMEND the lien with new owner information to preserve the lien time frame of 90 days from delivery of materials on each of the 3 liens.
Oct 30 – Amendmended lien recorded – Exhibit E-828 to reference the correct owner
DATE____?_______ Partial payment was made by BDR on job 828 leaving balance at $2038.57.

Job 830:
6/5/19 – BDR requested materials – Material Order #1 – $2,990.15
6/19/19 – BDR requested materials – Material Order #2 – $7,027.39
7/3/19 – Material Delivery confirmed
8/20/19 – Prelien sent – EXHIBIT B-830 (48 days after material supplied – this was requested on Aug 13 in LEvelset- was sent late)
9/19/19 – Lien recorded – Exhibit D-830 (78 days after materials supplied)
10/3/19 – BDR paid off material order #1 $2,990.15
Oct 14 – Jesse spoke with Steve at Highpoint Condo Assoc (Section I) and was told that all 3 properties were located in HOA Section III.
Based on this information it was determined that Billd would attempt to AMEND the lien with new owner information to preserve the lien time frame of 90 days from delivery of materials on each of the 3 liens.
10/30/19 – Amended lien recorded – Exhibit E-828 to reference the correct owner – The dollar amount was not amended and still liened for the full contract. We failed to deduct the $2990.15 that was paid, however a Waiver and release on progress payment was issued for the payment received.
11/15/19 – Amended Notice to owner created at the request of client. Exhibit F-830

JOB 1238:
6/11/19 – BDR requested materials – Material order #1- $6,035.86
7/10/19 – confirmed delivery of materials
7/22/19 – prelien sent Exhibit B-1238 (12 days after materials delivered)
10/2/19 – Lien recorded Exhibit D-1238 (84 days after materials delivered)
Oct 14 – Jesse spoke with Steve at Highpoint Condo Assoc (Section I) and was told that all 3 properties were located in HOA Section III.
Based on this information it was determined that Billd would attempt to AMEND the lien with new owner information to preserve the lien time frame of 90 days from delivery of materials on each of the 3 liens.
10/30/19 – Amended lien recorded Exhibit E-1238 to reference the new owner
11/13/19 – Amended Notice to owner per client request.

Senior Legal Associate Levelset

First, it’s worth noting that Florida is one of few states which explicitly allows for the amendment of mechanics lien claims. Under Fla. Stat. § 713.08(4)(b):

Any claim of lien recorded as provided in this part may be amended at any time during the period allowed for recording such claim of lien, provided that such amendment shall not cause any person to suffer any detriment by having acted in good faith in reliance upon such claim of lien as originally recorded. Any amendment of the claim of lien shall be recorded in the same manner as provided for recording the original claim of lien.

So, Florida mechanics lien claims can generally be amended to correct errors as long as the lien deadline has not yet passed, and as long as it doesn’t act to the detriment to someone who’s relied upon the original filing.

Minor errors won’t invalidate a Florida mechanics lien claim

Under Fla. Stat. Under Fla. Stat. § 713.08(4)(a), errors in a lien claim won’t render the mechanics lien unenforceable as long as the other parties to the lien claim weren’t adversely affected by the error. Of course, key components of a lien claim – like having the correct property owner – might not fall under the type of error that is excusable, but it’s possible.

Further, including an incorrect amount in a lien claim might not necessarily invalidate the claim, either, based on that principle. Lien claims intentionally or grossly overstated might result in an invalid lien claim, but claims made in good faith which were accidentally overstated may not.

In either event – as discussed above, lien claims may be amended to correct errors and omissions. So, if a filed lien was amended prior to the deadline, this discussion on errors in a lien claim may ultimately be irrelevant.

Next steps after filing a mechanics lien

After a mechanics lien has been filed, there are generally a few steps that can be taken to help with recovering payment. Levelset discusses some of those options here: The 4 Steps to Take After Filing a Mechanics Lien.

As discussed in that article, it’s helpful to ensure that every relevant party on the job has received a copy of the mechanics lien filing. The property owner, any HOAs involved, higher-tiered parties, lenders, etc. – anyone who might end up paying the claim or applying pressure for someone else to make payment should be aware of the claim.

Further, sending a document like a Notice of Intent to Foreclose can help, too. A Notice of Intent to Foreclose acts as a final warning, informing recipients that if payment isn’t made and made soon, then the lien will be enforced by filing suit. Nobody likes a lien, but everyone really hates a lawsuit. So, the threat of enforcement and potentially foreclosure will often go a long way.

Additional claims

Finally, keep in mind that there are other claims that may be available to apply additional pressure or may be valuable to tack on if a lawsuit becomes necessary. Claims like breach of contract or claims under Florida’s prompt payment laws might be on the table. And, bringing those claims in addition to a lien enforcement suit, or threatening those claims via demand letter, could work to compel payment.

| 0 Upvotes
Attorney Nelson Mullins Broad and Cassel

Assuming your amendment was timely, you have one year from the date of the amendment to file a lawsuit to foreclose the lien. If your amendment was not timely, then you may only have one year from the date of the original lien.

| 0 Upvotes
Your answer or comment:
Are you a Registered Expert?
You are not logged in and will be posting
anonymously. Log in Now