[CLC-Discussion] Can a construction lender bond off a construction lien?
Robert B. Worman
rbworman at wormanlaw.com
Mon Mar 4 13:34:50 PST 2013
Dan,
I doubt you would be thinking it was such a good thing if it was this
past summer, and the surety was First Sealord Surety. Now you would have
no lien and just a claim in its receivership.
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Dan
Vega
Sent: Monday, March 04, 2013 4:03 PM
To: 'Larry Leiby'; 'fred.dudley at hklaw.com'; blc at kirwinnorris.com;
bkpa1 at aol.com; hroberts at carltonfields.com;
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?
Larry, good point.
On the other hand, the entire purpose of transferring liens to bonds is
to free the fee from the encumbrance so the owner can sell, mortgage it,
etc.
Plus, the lien is subject to the existing mortgage anyway and if the
lender forecloses, the lien is for all intents and purposes wiped out.
Heck, if I was representing a lienor with a large lien, I would also
welcome the cash or surety bond regardless of who posts it.
Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega at taylorvega.com <mailto:dvega at taylorvega.com>
TaegTayl
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From: Larry Leiby [mailto:Leiby at mkpalaw.com]
Sent: Monday, March 04, 2013 3:53 PM
To: Dan Vega; 'fred.dudley at hklaw.com'; blc at kirwinnorris.com;
bkpa1 at aol.com; hroberts at carltonfields.com;
clc-discussion at lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?
Dan,
Did anyone ever say that it had to make practical sense? :-)
It is written is what we can say about it. It also doesn't make
practical sense for a lender to transfer a lien and eliminate its
priority position.
Regards,
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
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
From: Dan Vega [mailto:DVega at taylorvega.com]
Sent: Monday, March 04, 2013 3:50 PM
To: Larry Leiby; 'fred.dudley at hklaw.com'; blc at kirwinnorris.com;
bkpa1 at aol.com; hroberts at carltonfields.com;
clc-discussion at lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?
Larry, so a subcontractor can transfer its supplier's lien to a bond but
not a mortgage holder?
This result does not make practical sense.
Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega at taylorvega.com <mailto:dvega at taylorvega.com>
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From: Larry Leiby [mailto:Leiby at mkpalaw.com]
Sent: Monday, March 04, 2013 3:46 PM
To: Dan Vega; 'fred.dudley at hklaw.com'; blc at kirwinnorris.com;
bkpa1 at aol.com; hroberts at carltonfields.com;
clc-discussion at lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?
Dan,
The GC has an interest in the contract under which the lien is claimed,
the other basis justifying transfer in 713.24.
Regards,
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
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
From: Dan Vega [mailto:DVega at taylorvega.com]
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley at hklaw.com'; blc at kirwinnorris.com; bkpa1 at aol.com; Larry
Leiby; hroberts at carltonfields.com; clc-discussion at lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Can a construction lender bond off a
construction lien?
I just read below and for what it is worth, if a GC can transfer a lien
to a bond per 713.24, why would a lender not be able to do it?
GC's transfer liens to bonds all of the time. Practically speaking,
every decent owner/gc contract requires the gc to do so.
It can hardly be argued that a GC has an "interest" in the property
greater than a mortgage holder/lender.
Dan
Daniel R. Vega, Esq.
Board Certified in Construction Law
Taylor Vega, P.A.
2555 Ponce De Leon Blvd., Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
Cell: (305) 962-5186
E-mail: dvega at taylorvega.com <mailto:dvega at taylorvega.com>
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From: clc-discussion-bounces at lists.flabarrpptl.org [
mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
fred.dudley at hklaw.com
Sent: Monday, March 04, 2013 3:15 PM
To: blc at kirwinnorris.com; bkpa1 at aol.com; Leiby at mkpalaw.com;
hroberts at carltonfields.com; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?
This is the statute that makes Florida a "lien theory" state rather than
a "title theory" state like California. The lien (mortgage or
construction) is NOT an interest in real property.
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley at hklaw.com <mailto:fred.dudley at hklaw.com> | www.hklaw.com
<http://www.hklaw.com/>
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From: clc-discussion-bounces at lists.flabarrpptl.org [
mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Bryan
L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby at mkpalaw.com; hroberts at carltonfields.com;
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a
construction lien?
Just to kick this dead horse one more time, note that Florida Statute
Section 697.02
<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&
Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its
entirety, "Nature of a mortgage.-A mortgage shall be held to be a
specific lien on the property therein described, and not a conveyance of
the legal title or of the right of possession." So, whether a lender
has an interest in real property sufficient to support a
transfer-of-lien bond is apparently not a function/subject of case law
alone. Who knew.
Best regards.
Bryan Capps
From: clc-discussion-bounces at lists.flabarrpptl.org [
mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Barry
Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
To: Leiby at mkpalaw.com; hroberts at carltonfields.com;
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lenderbond off
aconstruction lien?
Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1 at aol.com
-----Original Message-----
From: Larry Leiby <Leiby at mkpalaw.com>
To: 'Roberts, Hardy L.' <hroberts at carltonfields.com>; 'Construction Law
Discussion' <clc-discussion at lists.flabarrpptl.org>
Sent: Wed, Feb 6, 2013 11:27 am
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
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
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
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
Niesen|Price|Worthy|Campo|Blakey, PA
5216 SW 91st Drive Gainesville, FL 32608
Ph (352) 373-9031 Fax (352) 373-9099
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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
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
Direct Fax: 239.344.1524
Matthew.Belcastro at henlaw.com
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-----Original Message-----
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/ <http://www.rrobinsonlaw.com/>
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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: 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
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<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: 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?
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 | www.carltonfields.com
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