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Zlien Customer Service is not sure what product I need. They directed me to you

I gap funded a fix and flip for 4020 East Colter Street, Phoenix, AZ 85018. The property owner, Flip2Freedom, llc, and my company, MCP Management Group, Inc., signed a joint venture agreement for my loan of $65,000 in gap funds for the project. The owner, Mr. Danny Pacheco has not repaid the loan with interest and has ignored all attempts to speak with him for the last month. He was supposed to repay principal and interest by May 31,2018.

1 reply

Jul 10, 2018

I'm sorry to hear about that. In a situation where a lender is not repaid, they will likely have a number of potential remedies available to recover payment. First, it's important to look to the contract. If the agreement sets out some rights or remedies for situations where payment is late (or not coming at all), it's a good idea to proceed pursuant to the contract. Of course, by failing to repay a loan, a property owner may very well be in breach of that contract - so proceeding toward a breach of contract action may be an option (albeit, an expensive and likely undesirable one). However, sending a threat of legal action can be just as effective as actually proceeding with legal action - nobody wants to go to court. It's frustrating and expensive. So providing a credible threat of litigation - via a demand letter, potentially through an attorney - can usually get the ball rolling. While it is designed more for sharing between parties working on the job (such as between a contractor and their sub or supplier), zlien provides a free, downloadable "Notice of Potential Breach" form here. Changing gears, if an unpaid lender is looking for security in the underlying project property, a mechanics lien is probably not a viable option. Mechanics liens are available to secure payment for those who provide construction labor, services, and/or materials to a given project. Specifically, under ARS § 33-981, an Arizona mechanics lien is available to "every person who labors or furnishes professional services, materials, machinery, fixtures or tools in the construction, alteration or repair of any building, or other structure or improvement..." While "professional services" may sound like a catch-all that provides lien rights to parties providing services other than labor or material, ARS § 33-1007 defines professional services as "architectural practice, engineering practice or land surveying practice..." So, while the lending agreement may provide rights to the underlying property, and while other remedies are quite likely available, pursuing the nonpayment of a lending agreement via mechanics lien is not a proper use of the Arizona mechanics lien laws. Considering a large amount of money is unpaid nearly a month and a half beyond the deadline, it would likely be a good idea to consult a local attorney - after providing them all of the facts and relevant documentation, they will be able to advise you on options to proceed and the pros and cons of each route for recovery.

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