[CLC-Discussion] Fwd: Online Lien Co. Hits Ohio State Bar With Antitrust Suit

[Dan Zorrilla]

I will leave the legality of it to the experts, but as a former Project Manager, I’ll tell you what I’ve seen from experience. Subcontractors and contractors prepare and file liens themselves all the time. Similar to their owner contract and subcontract templates, most mid-to large contractors have a form database. If not, the project team uses a lien that someone in the company prepared in the past as a template. Most of these liens either get the attention of the owner or contractor to the point that they are paid, or if there is a dispute, the contractor transfers the lien to his bond (without an attorney) and buys himself a few more months. I don’t have any data to support this, but I think that most lien filings probably get resolved without escalating to the level of needing to foreclose on a lien, so they probably never come across an attorney’s desk.

I’ve seen contractors hire notice companies to prepare liens, but more often than not, they are prepared in-house without even asking in-house counsel for advice (if they even have one).

I think that most smaller contractors and subcontractors don’t even know that construction attorneys exist, much less that preparing a lien is practicing law. They haven’t been paid and know from experience or advice from another contractor, that filing a lien is the next step to get paid and they figure out how to do so as cost effectively as possible. If you’re a small contractor and haven’t been paid $20k to $100k, it’s painful and may jeopardize your solvency. Going to an attorney to spend what you think will amount to thousands, is probably the last thing on your mind. You do whatever your superior or friends in the industry advise. As long as you’re not asking a large GC with in-house and outside counsel for advice,  the advice is most likely going to be to ‘do it yourself, here’s my form;’ or ‘I’ve used this guy, he only charges $99 and I’ve never had a problem with him.’

Thanks,
Dan

Daniel R. Zorrilla
Oxley & Brannon Construction Consultants, Inc.
475 Central Avenue, Suite 200
Saint Petersburg, Florida 33701
Phone: 727-821-9190
Facsimile: 727-821-0430
Email: dz at obcci.com<mailto:dz at obcci.com>
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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Bruce Partington
Sent: Tuesday, December 12, 2017 9:40 AM
To: Dan Vega <DVega at TEVTLaw.com>; Weintraub, Lee <lweintraub at bplegal.com>
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Fwd: Online Lien Co. Hits Ohio State Bar With Antitrust Suit

To me, the preparation of a lien is unquestionably the practice of law. It’s a document that impairs the owner’s title to property, and the nuances of the lien law are a mystery to most lay people, and are perhaps only a bit less a mystery to a lien company. For example, given the issues in determining whether to start the 90 day clock during punchlist work and when, and the nature of the work that may or may not start (or not start) the clock – do any of us think that those folks really do the careful analysis that a lawyer would do. I suspect they ask “when was the last day you were on site working” and that’s about the extent of it. Or what if the lienor gets a request for sworn statement of account or notice of contest of lien?

That said, often the economics of an amount due may not justify the expense of hiring a lawyer, and non-lawyers do things that are unquestionably the practice of law all of the time, from preparing contracts, to title companies closing large real estate transactions – but that doesn’t make it any less the practice of law. The “consumer harm” (which is what the regulators are going to look at) of a small lien is probably likewise small, and the regulator would likely deem it (and evidently has) unworthy of regulation at this point in time.

There’s a balance here – maybe liens of less than $10K are OK for these companies to do, but above that aren’t? I don’t know where the consumer harm/lienor economics balance point is, but it’s a fair consideration.



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Bruce D. Partington
Shareholder • Board Certified in Construction Law


PO Box 13010, Pensacola, FL 32591-3010

O (850) 432.1399 C (850) 982.3875 F (850) 432.7340

clarkpartington.com | <http://clarkpartington.com/> bpartington at clarkpartington.com<mailto:bpartington at clarkpartington.com> |

Clark Partington



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 Dan Vega
Sent: Tuesday, December 12, 2017 8:27 AM
To: Weintraub, Lee <lweintraub at bplegal.com<mailto:lweintraub at bplegal.com>>
Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Fwd: Online Lien Co. Hits Ohio State Bar With Antitrust Suit

So if a non lawyer Non lienor drafts contract, and lienor signs it, the contract is not valid???

Guys, there are many subs who rely on the notice companies to perfect their claims, especially in South Florida.

As long as lienor signs the lien, the law presumes he/she read doc and agreed to it.  Fact that lienor did not fill in blanks on a lien form, is inconsequential.   On the other hand, invalidating a lien based on same may be catastrophic to the lienor, its employees and the company as a whole.

Sent from my iPhone

Daniel R. Vega
Board Certified in Construction Law
Taylor Espino Vega & Touron, 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 tevtlaw.com<mailto:dvega at tevtlaw.com>

On Dec 12, 2017, at 9:20 AM, Weintraub, Lee <lweintraub at bplegal.com<mailto:lweintraub at bplegal.com>> wrote:
In litigation.  They draft their own contracts all the time.

From: Dan Vega [mailto:DVega at TEVTLaw.com]
Sent: Tuesday, December 12, 2017 9:17 AM
To: Weintraub, Lee <lweintraub at bplegal.com<mailto:lweintraub at bplegal.com>>
Cc: Charles B. Hernicz, Esq. <Chernicz at herniczlegal.com<mailto:Chernicz at herniczlegal.com>>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Fwd: Online Lien Co. Hits Ohio State Bar With Antitrust Suit

Lienors are usually companies.  Companies cannot rep themselves.


Sent from my iPhone

Daniel R. Vega
Board Certified in Construction Law
Taylor Espino Vega & Touron, 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 tevtlaw.com<mailto:dvega at tevtlaw.com>

On Dec 12, 2017, at 9:11 AM, Weintraub, Lee <lweintraub at bplegal.com<mailto:lweintraub at bplegal.com>> wrote:
Because a lienor, like any client, can represent itself (other than in litigation of course).  But if a company holds itself out as an expert to others and receives compensation for its services, it needs to know how to do it.  NTO companies don’t know how to handle complex property title issues or figure out what’s lienable and what’s non-lienable, among other issues.

From: Dan Vega [mailto:DVega at TEVTLaw.com]
Sent: Tuesday, December 12, 2017 8:48 AM
To: Weintraub, Lee <lweintraub at bplegal.com<mailto:lweintraub at bplegal.com>>
Cc: Charles B. Hernicz, Esq. <Chernicz at herniczlegal.com<mailto:Chernicz at herniczlegal.com>>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Fwd: Online Lien Co. Hits Ohio State Bar With Antitrust Suit

But if lienor prepares lien it’s ok?

Makes no sense
Sent from my iPhone

Daniel R. Vega
Board Certified in Construction Law
Taylor Espino Vega & Touron, 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 tevtlaw.com<mailto:dvega at tevtlaw.com>

On Dec 12, 2017, at 8:25 AM, Weintraub, Lee <lweintraub at bplegal.com<mailto:lweintraub at bplegal.com>> wrote:

The attorney general held it does matter. Drafting of liens requires legal analyses that could screw a lienor who relies upon such analysis performed by a non-lawyer.
Sent from my iPhone



Lee A. Weintraub
Shareholder
Board Certified in Construction Law
Chair, Public Private Partnerships Practice Group
Vice Chair, Construction Law and Litigation Practice Group

1 East Broward Blvd., Suite 1800 | Fort Lauderdale, FL 33301
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On Dec 12, 2017, at 8:21 AM, Dan Vega <DVega at TEVTLaw.com<mailto:DVega at TEVTLaw.com>> wrote:
Does it matter who prepares the lien form so long as lienor signs it?

The notice companies provide a valuable service to many small companies who otherwise would likely blow their lien rights.



Sent from my iPhone

Daniel R. Vega
Board Certified in Construction Law
Taylor Espino Vega & Touron, 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 tevtlaw.com<mailto:dvega at tevtlaw.com>

On Dec 12, 2017, at 7:41 AM, Charles B. Hernicz, Esq. <Chernicz at herniczlegal.com<mailto:Chernicz at herniczlegal.com>> wrote:
Notice companies in Florida regularly prepare claims of lien in violation of Section 713.08(2); now they jut put the company’s name in the “Return to” block but are still in clear violation of this prohibition.


Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
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 Barry Kalmanson
Sent: Monday, December 11, 2017 4:34 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] Fwd: Online Lien Co. Hits Ohio State Bar With Antitrust Suit

Interesting reading attached regarding a company known as Zlien operating throughout Florida.

After reading the opinion/agreement you may want to look at Section 713.08(2) Florida Statutes.




Sincerely,

Barry Kalmanson
500 N Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215

www.barrykalmanson.com<http://www.barrykalmanson.com>


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