The Final Countdown for Foreclosure Filing
A lot of people make the mistake of assuming that once recorded, a mechanics lien will stay effective indefinitely. Although it would make their lives easier, even effectively filing their lien will not keep the property tied up indefinitely until they receive compensation.
Sadly, the truth is that a lien foreclosure is typically subject to a very strict timeline. Therefore, if the lien expires it will no longer be enforceable unless the claimant brings a lawsuit to foreclose.
So what does the timeline for lien foreclosure look like, and what is the deadline for filing?
A Brief Lien Foreclosure Timeline
Every aspect of a mechanics lien is a process. There is a complex series of documents and actions that must be taken in order to correctly file and enforce a lien. The same is true of the foreclosure process.
Of course, it would be nice to be able to just send off a Notice to Owner and sit back while the other parties involved in the construction project put a check in the mail for you. Unfortunately, that is not the way liens work. Even once you have initiated the process, there is still follow-through in the foreclosure timeline.
One common recommendation is that immediately after filing the lien, the claimant should serve out copies of the lien claim via certified mail to all parties involved. Many states have laws mandating that mechanics liens be submitted to certain parties, such as the property owner or the general contractor. However, some experts recommend providing all parties involved with the project a copy of the lien claim.
After taking this step, give some time for the recipients to review the lien claim and consider how they will respond.
Shortly after distributing the lien claim to the appropriate parties, you will want to start reaching out to those most likely to handle the missing payment. If you’ve allowed a little time for recipients to receive and review the documentation, it only makes sense to follow up directly. Try calling and/or emailing to remind them of your intention to establish a payment plan.
Typically, you will want to try negotiating payment with the party that initially hired you for the project, like a General Contractor. Filing a mechanics lien helps you establish some leverage for negotiating a deal that meets your needs. However, if you feel the conversation isn’t progressing in the right direction, you may also want to call the property owner.
Make sure the property owner understands that you will have to enforce your lien against the owner directly if you do not receive payment for the project. Let them know you do not want to involve them, but you have a right to lien the property until you are properly compensated. This is likely to put even more pressure on the party responsible for paying you.
Two Weeks Later
Give the responsible party up to two weeks to figure out a plan for payment. If your phone calls or emails don’t help move the process along, then you should take the next steps to escalate the lien claim.
After two weeks, send a Notice of Intent to Foreclose. This document should also be provided to:
- The property owner
- Prime contractor
- Any other interested parties
Consider this the final warning to those connected to the construction project. Make it clear that the mechanics lien on the property will be foreclosed upon if you don’t receive payment.
Giving them one last chance to make things right shows again that you are trying to avoid taking further legal action. Remember, a lien claim can impact your professional reputation, so be sure to do everything you can to maintain the integrity of your claim and your willingness to work with the other parties.
Be sure to send this final notice via certified mail. This way, you have documented proof of when the notice was delivered. Some states actually require some form of verification in order to proceed with foreclosure.
One More Week
More often than not, a mechanics lien claim will be paid before a foreclosure action is ever required. Typically, if you give it another week after sending a Notice of Intent to Foreclose, a responsible party will reach out to you and make some kind of payment agreement.
Still, this is not always the case. Despite all your best efforts, it is possible that foreclosing on your lien claim becomes necessary. After a week without a resolution, it is best to take action to avoid your lien claim from expiring. One thing to keep in mind is the Final Payment Affidavit for Privity, this should be completed at least 5 days prior to filing the foreclosure suit.
In the end, escalating a lien claim to a foreclosure lawsuit is typically successful in getting many debts paid. The legal process of the foreclosure can be complex, therefore it makes sense to seek some legal guidance by hiring an experienced professional like those at GreenLight Maximum Recovery. Usually this is not something most individuals can pursue in small claims court alone, even when the value of the claim is very low.
In the event that you are forced to foreclose on a claim, make sure to have experienced and knowledgeable representation working with you.
Deadlines for Lien Closures
This is a statute of limitations for filing a foreclosure lawsuit. That is why it is so important to keep track of your lien claim timeline. If your suit is not filed by the due date, the lien becomes null and void.
Even if you miss that deadline, you may still have the opportunity to sue your customer for breach of contract, but the foreclosure of the actual mechanics lien will have expired.
One Year Rule
In the state of Florida, a mechanics lien must generally be enforced within one year of the date the lien was recorded. It is possible to get and extension on your lien, but there are strict guidelines for this process as well.
Extending the Lien Deadline
One way to apply a lien extension is if you continue to work on the construction project. If a claimant supplies labor or materials after the original lien was recorded, they can file an amendment to the lien, noting that later date. In this case, the one-year deadline runs from the date the amended lien was filed.
Shortening the Lien Deadline
Keep in mind you are not the only party with the power to alter the deadline. The time frame can be moved up as well, even if you have applied an extension.
If the property owner or owner’s agent files and serves a Notice of Contest of Lien, the time limit is shortened to 60 days from that date. This gives you 60 days to institute a suit to enforce your lien. Otherwise, your claim will be automatically extinguished.
Furthermore, any other interested party may shorten the deadline even more. By filing and serving a summons and complaint to show cause why the lien should not be enforced by suit, or vacated, another party can cut your timeline down to 20 days.
So if you receive a Notice of Contest, or are served a summons by another interested party, you must be ready to take immediate action to protect your claim.
If you do receive payment before having to file suit, remember that you may be required to file a Lien Waiver or a Release of Lien in exchange for payment. 11 states require that all parties on a construction project use certain legislatively designed construction lien waiver forms. Florida is one of these states. If a contractor or owner asks you to use a lien waiver form that does not meet the statutory form guidelines, the waiver will be invalid and the contractor could face legal consequences.
Every aspect of the mechanics lien process, including foreclosure, can be difficult to keep track of. Not to mention time consuming or even overwhelming for those without the legal experience to pursue their claim. It is always beneficial for all parties to seek resources and guidance from the experts.