[CLC-Discussion] Can a construction lender bond off a construction lien?

Tue Feb 5 11:37:34 PST 2013

I think Ray's right.  Practical considerations aside, it appears that, as a technical matter, on the one hand, it has been expressly held that, while a mortgage creates a lien under Florida law, it does not convey or create any interest in real property, see, e.g., Free v. Free, 936 So. 2d 699, 703 (Fla. 5th DCA 2006), Fuller v. Mortgage Elec. Registration Sys., Inc., 3:11-CV-1153-J-20MCR, 2012 WL 3733869 (M.D. Fla. 2012), (citing Southern Colonial Mortg. Co., Inc. v. Medeiros, 347 So.2d 736, 738 (Fla. 4th DCA 1977) (construing then-existing Lien Law §713.13(5), since amended and now renumbered as §713.05(6))), while on the other hand, in Gesco, Inc. v. Edward L. Nezelek, Inc., 414 So. 2d 535, 540 (Fla. 4th DCA 1982), the court expressly acknowledged, if in passing, the "mortgagee's security interest in the real property."

[Description: Description: Description: Description: H:\HTML Signature Block\Kirwin Norris Logo.gif]<http://www.kirwinnorris.com/>

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc at kirwinnorris.com<mailto:blc at kirwinnorris.com>
www.kirwinnorris.com<http://www.kirwinnorris.com/>

[Description: Description: Description: Description: H:\HTML Signature Block\Construction Law.gif]

This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

One could make the argument that Florida is considered a "lien" state and case law has held that a mortgage is not a transfer of "interest" in real property and therefore does not need two subscribing witnesses.  Good question though.  Let me know if you find the answer.

  Raymond L. Robinson, Esq.
  Office: (305) 662-7618
  Cell: (305) 632-4384
  http://www.rrobinsonlaw.com/

[cid:image002.png at 01CB0330.4CD28650][LH Address Line]

    [http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/E9FCC9C6B2384C36852574FA00690DDC/$FILE/ConstructionLaw.jpg?OpenElement]   [cid:image001.jpg at 01CC7158.CF9B3D60]   [http://www.jbslawoffice.com/wp-content/uploads/2010/09/SuperLawyers_logo_2011.jpg]

* CONFIDENTIALITY NOTICE: This e-mail message, including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. If you are the intended recipient but do not wish to receive communications through this medium, please advise the sender immediately.

Connect with Robinson & Associates, P.A.

     [Description: facebook 4040] <http://www.facebook.com/pages/Robinson-Associates-PA/113822315326716?v=info>   [http://ahaa.org/img/linkedin-icon.png] <http://www.linkedin.com/pub/raymond-robinson/26/35b/a09>

[qrcode.1344014[1]]

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Yes.  The lender has "an interest" via its mortgage in the real property on which the lien is imposed.

Michael R. Gibbons  (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>

        [cid:image009.jpg at 01CE03AB.FA075AC0]

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?

Anyone have any thoughts on this?

[Carlton Fields]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

hroberts at carltonfields.com<mailto:hroberts at carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/>
bio<http://www.carltonfields.com/hroberts/> | vcard<http://www.carltonfields.com/load.vcf?type=atty&id=49fd8f5b-3f72-45c2-9ca7-83799b9c8b29>

Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product.  If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery.

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 11677 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 3775 bytes
Desc: image002.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image002.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 5881 bytes
Desc: image003.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 6487 bytes
Desc: image004.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image004.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.jpg
Type: image/jpeg
Size: 4339 bytes
Desc: image005.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image005.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.png
Type: image/png
Size: 1731 bytes
Desc: image006.png
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image006.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.png
Type: image/png
Size: 1689 bytes
Desc: image007.png
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image007.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image008.png
Type: image/png
Size: 7693 bytes
Desc: image008.png
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image008.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image009.jpg
Type: image/jpeg
Size: 2865 bytes
Desc: image009.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image009.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image010.png
Type: image/png
Size: 6143 bytes
Desc: image010.png
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image010.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image011.jpg
Type: image/jpeg
Size: 3581 bytes
Desc: image011.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image011.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image012.jpg
Type: image/jpeg
Size: 4899 bytes
Desc: image012.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20130205/95691302/image012.jpg>