[CLC-Discussion] Can a construction lender bond off aconstruction lien?
Greg Elliott
gelliott at elliott-berger.com
Wed Feb 6 10:25:50 PST 2013
Interesting. I can see why the lender wasn't very happy then. . .
Gregory T. Elliott
ELLIOTT - BERGER, P. A.
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------ Original Message ------
From: "Ian Kravitz" <Ian at mkpalaw.com>
To: "Greg Elliott" <gelliott at elliott-berger.com>
Cc: "Reese J. Henderson, Jr." <Reese.Henderson at gray-robinson.com>;
"Larry Leiby" <Leiby at mkpalaw.com>; "Roberts, Hardy L."
<hroberts at carltonfields.com>; "Construction Law Discussion"
<clc-discussion at lists.flabarrpptl.org>
Sent: 2/6/2013 12:57:55 PM
Subject: Re: Re[2]: [CLC-Discussion] Can a construction lender bond off
aconstruction lien?
>In our case, the lender posted the transfer bond as principal. The GC
>had not been paid by the defaulting owner so had no liability.
>
>Ian Kravitz, Esquire
>Malka & Kravitz, P.A.
>1300 Sawgrass Corp Pkwy
>Suite 100
>Sunrise, FL 33323
>
>Sent from my mobile device so please excuse any typos
>
>On Feb 6, 2013, at 12:56 PM, "Greg Elliott"
><gelliott at elliott-berger.com> wrote:
>
>> Ian:
>>
>> But the lender did not become the bond principal did he, his
>>"short-selling" borrower did, didn't he? I think Hardy's original
>>question places the lender in as bond principal.
>>
>> GTE
>> Gregory T. Elliott
>> ELLIOTT - BERGER, P. A.
>> 10225 Ulmerton Road, Suite 4A
>> Largo, Florida 33771
>> (727) 360-2600 (Phone)
>> (727) 360-6588 (Fax)
>> Board Certified In Construction Law
>> [cid:em32fb1494-ef47-4ca8-baac-950fea43669c at greg-pc]
>>
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>>
>> ------ Original Message ------
>> From: "Ian Kravitz" <Ian at mkpalaw.com<mailto:Ian at mkpalaw.com>>
>> To: "'Greg Elliott'"
>><gelliott at elliott-berger.com<mailto:gelliott at elliott-berger.com>>;
>>"Reese J. Henderson, Jr."
>><Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>>;
>>"Larry Leiby" <Leiby at mkpalaw.com<mailto:Leiby at mkpalaw.com>>;
>>"'Roberts, Hardy L.'"
>><hroberts at carltonfields.com<mailto:hroberts at carltonfields.com>>;
>>"'Construction Law Discussion'"
>><clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
>> Sent: 2/6/2013 12:48:39 PM
>> Subject: RE: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>> We recently had a scenario where the lender needed to clear title in
>>order to proceed on a complex commercial short sale because our lien,
>>and issues too complex to be resolved short of trial, were impeding
>>their ability to foreclose out the interests of the lien holder. As a
>>result, they transferred the lien to bond to effectuate that
>>multi-million dollar transaction.
>>
>> As Larry indicated in his post earlier, the lender was not too happy
>>to then realize that they had waived any right to argue the priority
>>of their loan over the lien, and were forced to satisfy the lien that
>>would have otherwise been worth nothing.
>>
>> That is the one and only time I have experienced such a scenario, but
>>to answer your question, there is at least one scenario where it can
>>become an issue.
>>
>> Ian T. Kravitz, Esquire view my
>>bio<http://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml>
>> Board Certified in Construction Law
>> AV Preeminent Rated by Martindale-Hubbell
>> MALKA & KRAVITZ, P.A.
>> 1300 Sawgrass Corporate Parkway
>> Suite 100
>> Sunrise, FL 33323
>> Telephone 954-514-0984
>> Facsimile 954-514-0985
>> www.YourConstructionLawFirm.com<http://www.mkpalaw.com/>
>>
>>[cid:image015.gif at 01CE0468.48F77590]<https://plus.google.com/110645842525512865234>
>>[cid:image016.gif at 01CE0468.48F77590]
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>>[cid:image018.gif at 01CE0468.48F77590]
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>> From:
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>>[mailto:clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>]
>>On Behalf Of Greg Elliott
>> Sent: Wednesday, February 06, 2013 12:26 PM
>> To: Reese J. Henderson, Jr.; Larry Leiby; 'Roberts, Hardy L.';
>>'Construction Law Discussion'
>> Subject: Re: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>>
>> Still struggling to picture a scenario where a lender would have any
>>legitimate interest in transferring some claimant's lien against their
>>borrower's property off to other security (713.24 bond). In my
>>experience the notion of bonding a lien off usually is something a
>>General Contractor elects do do with one of his subs or materialmen's
>>claim of lien, where he is in a dispute with that sub or materialman
>>over what is due, and does not want his owner's property subjected to
>>the lien. The property owner's lender might consider the encumbrance
>>to be an event of technical default under the mortgage, but why would
>>they care to expend the energy and resources to transfer that inferior
>>claim of interest off. If push came to shove the lender could just
>>foreclose the claim out with every other junior encumberance.
>>
>> G. Elliott
>>
>>
>> Gregory T. Elliott
>> ELLIOTT - BERGER, P. A.
>> 10225 Ulmerton Road, Suite 4A
>> Largo, Florida 33771
>> (727) 360-2600 (Phone)
>> (727) 360-6588 (Fax)
>> Board Certified In Construction Law
>> [cid:image023.jpg at 01CE0468.48F77590]
>>
>> Confidentiality Disclaimer: This email message and any attachments
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>> Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
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>>
>>
>>
>> ------ Original Message ------
>> From: "Reese J. Henderson, Jr."
>><Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>>
>> To: "Larry Leiby" <Leiby at mkpalaw.com<mailto:Leiby at mkpalaw.com>>;
>>"'Roberts, Hardy L.'"
>><hroberts at carltonfields.com<mailto:hroberts at carltonfields.com>>;
>>"'Construction Law Discussion'"
>><clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
>> Sent: 2/6/2013 11:45:46 AM
>> Subject: Re: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>> “is the lien still there along with the bond . . .” – interesting
>>point, Larry. If the lender attempts to transfer the lien through a
>>713.24 lien transfer bond, then by your argument the lienor would
>>still have its lien claim AND now have a claim against that bond,
>>which, because it does not comply with 713.24, is instead a common law
>>bond which is additional – and not substitute – security for the lien.
>>
>>
>> Reese J. Henderson, Jr.
>> Board Certified Construction Attorney
>> GrayRobinson, P.A.
>> 50 North Laura Street, Suite 1100
>> Jacksonville, Florida 32202
>> Main: 904-598-9929 | Fax: 904-598-9109
>> Email:
>>Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>
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>>On Behalf Of Larry Leiby
>> Sent: Wednesday, February 06, 2013 11:27 AM
>> To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
>> Subject: Re: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>>
>> I agree with those who noted that a lender does not have an interest
>>in property, instead it has a mortgage lien, and thus is not covered
>>under 713.24. However that is the tip of the iceberg and begs the
>>question.
>>
>> The concern that I have experienced is where the lender seeks to
>>transfer the lien to bond but the bond form is not conditioned only on
>>proving the lien claim it is also conditioned on proving priority.
>>That is not what 713.24 is about, and the clerks aren’t real students
>>of 713.24 as they have many duties. If that happens the lienor should
>>challenge any certificate of transfer.
>>
>> So a lender is a little nuts wanting to transfer a lien under 713.24
>>without added language (which would not meet the requirements of
>>713.24), because then the lienor need only prove its lien claim and
>>the condition of the bond is performed where the principal and surety
>>on the bond are on the hook (assuming they didn’t sneak in any added
>>language to the 713.24 bond form). The lender loses its argument about
>>the lien not having equity and being inferior to the mortgage by
>>bonding it off and taking the property equity out of the equation. The
>>lienor should be ecstatic about not being worried about the lender’s
>>priority any more, but must watch carefully the language in the bond.
>>If the lender is looking to clear title for some reason of its own, it
>>should not be the principal on the bond – only someone with an
>>interest. If the lender gets cute and adds language to the bond, we
>>have some new issues to address, which I believe are not yet resolved.
>>
>> Thus if the lender uses a 713.24 bond to transfer it off, the
>>question is: Is the lien really transferred off, or is the lien still
>>there along with the bond because the lender cannot meet the
>>requirements of 713.24 by not having an interest in the property?
>>
>>
>> Larry R. Leiby, Esq.
>> Malka & Kravitz, P.A.
>> 1300 Sawgrass Corp. Pkwy., Suite 100
>> Ft. Lauderdale, FL 33323
>> Phone: 954-514-0984
>> Fax: 954-514-0985 e-mail: leiby at mkpalaw.com<mailto:leiby at mkpalaw.com>
>>
>> Board Certified in Construction Law
>> Fla. Supreme Court Certified Circuit Court Civil Mediator
>>
>> Member, Leiby Alexander Brandt ADR Group, LLC
>> Member, JAMS Global Engineering and Construction Panel
>> Fellow, College of Commercial Arbitrators
>>
>> [cid:image024.jpg at 01CE0468.48F77590]
>>
>> From:
>>clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>
>>[mailto:clc-discussion-bounces at lists.flabarrpptl.org]<mailto:[mailto:clc-discussion-bounces at lists.flabarrpptl.org]>
>>On Behalf Of John Campo
>> Sent: Tuesday, February 05, 2013 2:41 PM
>> To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael';
>>'Roberts, Hardy L.'; 'Construction Law Discussion'
>> Subject: Re: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>>
>> As a practical matter, I would welcome a Lien Transfer Bond knowing
>>that a pile of money is readily available for the taking should my
>>client prevail on its lien.
>>
>> John D. Campo, Esq.
>> Florida Bar Board Certified - Construction Law
>> john at npw-law.com<mailto:john at npw-law.com>
>>
>> Niesen|Price|Worthy|Campo|Blakey, PA
>> 5216 SW 91st Drive Gainesville, FL 32608
>> Ph (352) 373-9031 Fax (352) 373-9099
>> http://npw-law.com
>>
>> [cid:image025.jpg at 01CE0468.48F77590]
>>[cid:image026.jpg at 01CE0468.48F77590]
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>> This communication is intended for the sole use of the individual or
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>> From:
>>clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>
>>[mailto:clc-discussion-bounces at lists.flabarrpptl.org]<mailto:[mailto:clc-discussion-bounces at lists.flabarrpptl.org]>
>>On Behalf Of Matthew Belcastro
>> Sent: Tuesday, February 05, 2013 2:16 PM
>> To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.;
>>Construction Law Discussion
>> Subject: Re: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>>
>> I'm not sure I understand why the construction lender wants to bond
>>off the lien? Are they trying to convert to permanent financing and
>>unable as a result of the construction lien?
>>
>>
>>
>> Matthew Belcastro
>> Attorney at Law
>> Henderson, Franklin, Starnes & Holt, P.A.
>> 1715 Monroe Street
>> P.O. Box 280
>> Fort Myers, FL 33902
>> Direct Dial: 239.344.1205
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>> www.henlaw.com<http://www.henlaw.com>
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>> -----Original Message-----
>> 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
>>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:image028.png at 01CE0468.48F77590][cid:image029.jpg at 01CE0468.48F77590]
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>> 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
>>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:image036.jpg at 01CE0468.48F77590]
>>
>> 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?
>>
>> [cid:image037.png at 01CE0468.48F77590]
>> 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> |
>>http://www.carltonfields.com/
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