[CLC-Discussion] 13.24 Third Party Claimants Under Bond?

Mon Aug 12 10:37:57 PDT 2013

Michael:

    I don't think it is that simple.   As you point out the lien transfer
bond is a contract running in favor of a specified lienor.  That lienor has
a statutory chose in action against the surety, assuming it has properly
complied with the prerequisites of ch 713 (i.e. has a valid lien).  That
chose in action can be voluntarily assigned to a third party creditor, or
taken by a third party creditor involuntarily through a valid legal
proceeding.  Choses in action are typically taken involuntarily through
proceedings supplementary under Fla. Stat. ch 56, rather than garnishment
proceedings, however, to the extent that such an action is deemed a "debt"
by the court, then it could be taken by a garnishment proceeding.
Regardless of how acquired, a valid argument exists that the third party
creditor stands in the shoes of the lienor who originally owned the chose in
action and is capable of asserting the claim in the name of that original
lienor.  As a result, standing is not an impediment nor, in my opinion, must
such a creditor have a valid claim of lien in its own right to exercise such
a remedy.  Of course this comes from the prospective of someone who
frequently represents third tier material suppliers, so it could be wishful
thinking!

Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons,
Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion
(clc-discussion at lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?

  While the language is unfortunate, I don't think it will have much impact
in practice for two reasons.  First, the Lien Transfer Bond is a contract
running in favor of a specified lienor whose lien has been transferred to
the security of the bond.  Other persons simply don't have standing to sue
the Surety on the lien transfer bond.  Besides the standing issue,  in order
for lower tiered materialman or sub-subcontractor to have a claim on any
lien transfer bond, that materialman or sub-subcontractor must be able to
establish that it has a valid and enforceable claim of lien.  And if it has
a perfected claim of lien, then it will either be foreclosing on the real
property or have its very own lien transfer bond as substituted security
(with no need to piggyback on some other lienor's lien transfer bond).

Michael R. Gibbons  ( <http://lowndes-law.com/our-people/michael-r-gibbons>
Bio)

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 N. Eola Drive

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email:  <mailto:michael.gibbons at lowndes-law.com>
michael.gibbons at lowndes-law.com

website:  <http://www.lowndes-law.com/> http://www.lowndes-law.com

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Roberts,
Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion at lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?

Please see the request below from Robert Worman.

From: Robert B. Worman [mailto:rbworman at wormanlaw.com] 
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?

Hardy,

Can you circulate this through ListServe for the Construction Law Committee
to address?

Please review the attached case which just came out.  I would appreciate
comments on the dicta at the end of the 2d paragraph as to the theory under
which materialman to a lienor would have a claim under the transfer bond.  

Anyone want to crawl out on that limb?

Regards,

Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue 
Suite 200 
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida  32802
Phone:  (407)  843-5353
Fax:      (407)  841-9516
e-mail:  rworman at wormanlaw.com 

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