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

Mon Mar 4 14:26:54 PST 2013

When you say it doesn’t make practical sense, the lender’s priority can’t be affected by a lien that occurs later in the chain absent fraud or some other facts. The lender has a practical remedy, foreclose. 

David C. Agee, Esquire

REID & AGEE, PLLC

RIGHT TITLE, LLC

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Bradenton, FL 34205

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Larry Leiby
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?[Scanned]

Dan,

Did anyone ever say that it had to make practical sense?  J  

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> 

 TaegTayl

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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> 

TaegTayl

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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
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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

http://npw-law.com <http://npw-law.com/> 

This communication is intended for the sole use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If the reader of this communication is not the intended recipient, employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please immediately notify me by telephone, delete this communication, and destroy any copies of it.  Thank you.

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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	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 

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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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	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

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