[CLC-Discussion] question re: Lis Pendens and Lien

Tue Feb 5 16:26:19 PST 2013

I agree with my much older (and, alright, wiser) brother Tim Moorhead.  You need more facts.  For one, given the time between the mortgage foreclosure lis pendens and the NOC (over a year), I would want to know who was supposed to finance this construction project -- especially in light of the fact that it appears you client's client could not even pay their mortgage on the subject property!  Two, what payment / financing representations were made in your client's contract?  There are other questions to ask, but these may lead you to claims for misrepresentation and/or fraud.  Good luck!

Don Gibson, Esquire, PE, LEED AP BC+D
GIBSON|LAW
20 North Brown Avenue
Orlando, Florida  32801

407-616-2795

________________________________
 From: Timothy Moorhead <tmoorhead at wfmblaw.com>
To: Andrea Fair <amf at fairconstructionliens.com>; "clc-discussion at lists.flabarrpptl.org" <clc-discussion at lists.flabarrpptl.org> 
Sent: Tuesday, February 5, 2013 4:22 PM
Subject: Re: [CLC-Discussion] question re: Lis Pendens and Lien

More facts might lead you to Unjust
Enrichment, Quantum Meruit or an Equitable Lien. 

Timothy R. Moorhead, Esq. 
Wright, Fulford, Moorhead & Brown, P.A. 
505 Maitland Avenue 
Suite1000 
Altamonte Springs, FL 32701 
(407) 425-0234 
(407) 425-0260 (fax) 
Board Certified in Construction Law 
tmoorhead at wfmblaw.com 
http://www.wfmblaw.com/ 

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From:clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Tuesday, February 05, 2013
3:53 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] question
re: Lis Pendens and Lien  

I
represent a contractor on a residential project.  The owner hired him
while she was in mortgage foreclosure but my client did not know that. 
The chronology of events is as follows: 

4/13/11
--- Lis Pendens for mortgage foreclosure 
5/10/12
--- Notice of Commencement for my client’s project 
6/20/12
--- Certificate of Title transferring title from owner to lender 
9/14/12
--- my client’s Claim of Lien  

I’ve read
FS Section 48.23 where it states, in part, as follows:  

(1)(d) Except for the interest of persons in possession or easements of
use, the recording of such notice of lis pendens, provided that during the
pendency of the proceeding it has not expired pursuant to subsection (2) or
been withdrawn or discharged, constitutes a bar to the enforcement against the
property described in the notice of all interests and liens, including, but not
limited to, federal tax liens and levies, unrecorded at the time of recording
the notice unless the holder of any such unrecorded interest or lien intervenes
in such proceedings within 30 days after the recording of the notice. If the
holder of any such unrecorded interest or lien does not intervene in the
proceedings and if such proceedings are prosecuted to a judicial sale of the
property described in the notice, the property shall be forever discharged from
all such unrecorded interests and liens . . . 

Of course,
my client had no knowledge of the mortgage foreclosure or the LP so he never
intervened.  The attorney for the lender (new owner) has demanded that my
client release the lien. 

Any
thoughts or ideas on recourse?  Thank you in advance for your input.  

Andrea 

Andrea M.
Fair-Purcell 
Board
Certified Construction Attorney  
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Tampa, FL  33626                   
(813) 412-1077 phone  
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http://www.fairconstructionliens.com/        

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