[CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

Sat Jul 5 08:59:15 PDT 2014

Agreed

Sent on a Sprint Samsung Galaxy Note® 3 by:

Randall Gilbert, Esq.
GILBERT & CADDY PA
1720 Harrison Street
Penthouse B
Hollywood, FL 33020
Ofc: (954) 620-5000
Fax: (954) 620-5105
Email: Rgilbert at theconstructionlawyers.com

-------- Original message --------
From: REKLAW
Date:07/05/2014 10:07 AM (GMT-05:00)
To: CHernicz at Herniczlegal.com
Cc: ""
Subject: Re: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

Facially, it appears that Your lien is wiped out and I see no way for a fraud claim against the client as the mortgage foreclosure complaint is of public record. Moreover, as your client does not appear to have timely moved to intervene, in the underlying mortgage foreclosure action, (assuming your client was not added as a party defendant in the action) for the purpose of raising your contemplated equitable lien claim, etc... it appears that your client would have no recourse as to purchaser at foreclosure sale.

Sincerely,

Ronald E. Kaufman, Esq.
Board Certified Construction Attorney
Certified Circuit Civil Mediator

Law Offices of Ronald E. Kaufman, P.A.
3399 Ponce De Leon Boulevard, suite 202
Coral Gables, FL 33134
Main Telephone: (305) 444-1500<tel:(305)%20444-1500>
Facsimile: (305) 675-3327<tel:(305)%20675-3327>
Email: rek at reklawfirm.com<mailto:rekesq at gmail.com>
Website: www.miamiconstructionattorney.info<http://www.miamiconstructionattorney.info/>

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On Jul 5, 2014, at 8:42 AM, "Charles B. Hernicz, Esq" <CHernicz at Herniczlegal.com<mailto:CHernicz at Herniczlegal.com>> wrote:

Don’t know how a fraud claim could be maintained since the mortgage action was a matter of public record—that’s why the LP is recorded in the public records, to put other potential claimants on notice.  All persons providing labor or materials to improve the property are put on constructive notice that a mortgage foreclosure is pending.

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz at HerniczLegal.com

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 Fred Dudley
Sent: Thursday, July 03, 2014 2:51 PM
To: Andrea Fair; <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
Subject: Re: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

Maybe a civil thief, but a great example of (1) filing early and (2) ordering a title report (at least an “O and E” before recording a lien (or thereafter if not enough time before).

Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com<mailto:dudley at mylicenselaw.com>

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 Andrea Fair
Sent: Thursday, July 03, 2014 1:10 PM
To: <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
Subject: [CLC-Discussion] 2011 mortgage foreclosure/notice of lis pendens v. 2013 construction lien

I have an issue involving my client’s construction lien and mortgage foreclosure suit that was filed years before my client was even hired.  Here is the chronology of events:

3/30/11 --- mortgage foreclosure filed
4/11/11 --- notice of lis pendens recorded for above suit
6/3/13 --- owners sign contract with my client
8/29/13 --- my client’s construction lien is recorded
11/13/13 --- my client’s lawsuit is filed and notice of lis pendens recorded
1/22/14 --- Final Judgment entered in mortgage foreclosure case
3/17/14 --- public sale in mortgage foreclosure case

I realize that the notice of lis pendens filed in the mortgage foreclosure case (to quote Leiby) “cuts off the rights of any person claiming any interest or lien in the property by virtue of a claim recorded after the recording of the notice of lis pendens, except for any holder of a lien who intervenes within 30 days of the recording of the notice of lis pendens.”  My client could have discovered the notice of lis pendens filed in the mortgage foreclosure case because it’s a matter of public record but we all know that our clients never look for such things.  At any rate, the notice of lis pendens filed in the mortgage foreclosure case was recorded long before my client performed any work and recorded its lien so they had no opportunity to intervene.  Obviously, my client was not a Defendant in the mortgage foreclosure case.

Is my client’s only relief a claim for breach of contract?  What about a fraud claim?  I think the answers are “yes” and “yes.”  The owners knew they were in the middle of a mortgage foreclosure so they likely knew they were making improvements to a home they were going to lose.  So then it’s likely that they never had any intention of paying my client.

What are your thoughts?  Thank you for all of your time and input.

Thanks,
Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
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www.fairconstructionliens.com<http://www.fairconstructionliens.com>

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