[CLC-Discussion] Who can sign liens and releases?

Wed Jul 1 11:05:07 PDT 2020

Larry’s cautionary tale is wise.  The attorney who delves that deeply into the facts in order to swear to the truth of those facts within the lien opens himself up to being a necessary witness in the litigation, especially with regard to making a claim for (or defending) a fraudulent lien.

Thank you.

Evan

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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of leibyl at comcast.net
Sent: Wednesday, July 01, 2020 1:30 PM
To: 'Jeffrey Price' <jeff at npw-law.com>; 'Barry Kalmanson' <bkpa1 at aol.com>; bpartington at clarkpartington.com; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Who can sign liens and releases?

713.08(2) says that the lien may be prepared by  ”the lienor or the lienor’s employee or attorney.”  It separately says that the lienor may be “signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein.”

I have heard the argument that when the legislature deleted “attorney” in 714.08(2) that it eliminated the ability of the attorney to sign the lien.  I don’t believe that but have not seen a decision where that was raised.
When you are local and the client is out of town you may choose to get acquainted with the facts and sign.  However I try to avoid signing since I don’t need to be at a deposition when they ask me about my acquaintance with the facts in the case, and possibly get bounced from the case due to having to testify.

Larry R. Leiby
Larry R. Leiby, Esq.
Adjunct Professor, Florida International University College of Law
Florida Bar Board Certified Construction Law Expert
Emeritus Fellow, American College of Commercial Arbitrators

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Jeffrey Price
Sent: Wednesday, July 01, 2020 1:07 PM
To: Barry Kalmanson <bkpa1 at aol.com<mailto:bkpa1 at aol.com>>; bpartington at clarkpartington.com<mailto:bpartington at clarkpartington.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Who can sign liens and releases?

Hang on there Barry:

The lawyer talks to the client. Takes a look at the NOC and the NTO (if one was necessary). Checks the contract (and prime if necessary). Checks the first day and last day of work documentation to make sure there are no obvious or glaring mistakes (or lies). Sees the emails and letters (if any). Asks for the billing records and/or pay applications. Reviews the payments in and out becoming generally familiar with the events. Might even call the Owner (or their lawyer) and ask what’s up? Then prepares and signs the lien as the lienor’s attorney-in-fact (agent, clearly).

“713.08(2) The claim of lien may be prepared by the lienor or the lienor’s employee or attorney and shall be signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein.”

Acquainted - Verb: past tense: acquainted; past participle: acquainted - make someone aware of or familiar with. Having personal knowledge of something : having seen or experienced something e.g. “lawyer who is well acquainted with the facts in this case.”:  to know<https://dictionary.cambridge.org/us/dictionary/english/know> or be familiar<https://dictionary.cambridge.org/us/dictionary/english/familiar> with something, because you have studied<https://dictionary.cambridge.org/us/dictionary/english/studied> it or have experienced<https://dictionary.cambridge.org/us/dictionary/english/experienced> it before.

I think I’m acquainted with the sum and substance of the lien I prepared and signed. Don’t we still have a safe-harbor for attorney developed liens?

“This makes a fun day in a deposition.” Whose deposition? The client who tells you they gave all this stuff to the lawyer? Or the lawyer’s deposition? (I’ve sat for one deposition and that was really fun for me, not so much the other lawyer). Maybe that’s what you meant.

Jeff

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From: Barry Kalmanson <bkpa1 at aol.com<mailto:bkpa1 at aol.com>>
Sent: Wednesday, July 1, 2020 12:43 PM
To: bpartington at clarkpartington.com<mailto:bpartington at clarkpartington.com>; Jeffrey Price <jeff at npw-law.com<mailto:jeff at npw-law.com>>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Who can sign liens and releases?

As far as the execution of liens the word "attorney" was removed from the statute in 1977. Now Section 713.08(2) does not provide authority for an attorney to execute liens unless the attorney happens to be "acquainted with the facts stated therein." This highly unlikely unless the attorney also works as an employee of the lienor.  This makes a fun day in a deposition.

As far as releases go any individual with authority (including attorneys) can execute releases. Section 713.20 does not include a limitation on who can sign the releases of lien.

Under Section 713.08(2) the discussion becomes much more interesting as to who can prepare the liens . Many throughout the state that are not permitted are preparing liens. This is clearly the unlicensed practice of law.  The Florida Bar has sent cease and desist letters to various companies and non-lawyer individuals for preparing liens.
Sincerely,

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

http://www.barrykalmanson.com/

-----Original Message-----
From: Bruce Partington <bpartington at clarkpartington.com<mailto:bpartington at clarkpartington.com>>
To: Jeffrey Price <jeff at npw-law.com<mailto:jeff at npw-law.com>>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org> <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
Sent: Wed, Jul 1, 2020 10:24 am
Subject: Re: [CLC-Discussion] Who can sign liens and releases?
For what it’s worth, and 692 is part of it, it’s been my policy for years never to sign liens or releases on behalf of clients. Another reason is that the jurat is taking an oath that what is in it is true, and I think it’s best that clients do that. (A release would formally probably only require an acknowledgement, but a lien definitely requires a jurat).

I think the beginning of 692.01 makes it relatively clear:
Any corporation may execute instruments conveying, mortgaging, or affecting any interest in lands by instruments sealed with the common or corporate seal and signed in its name by its president or any vice president or chief executive officer. Assignments, satisfactions, or partial releases of mortgages and acquittances for debts may be similarly executed by any corporate officer.

But, read carefully, that only applies to acknowledgements, not jurats, because pretty much all instruments affecting any interests in lands, except a construction lien, require only an acknowledgement.

Bruce Partington | Shareholder
bpartington at clarkpartington.com<mailto:bpartington at clarkpartington.com> | (850) 432-1399<callto:(850)%20432-1399>
CLARK PARTINGTON
Office: (850) 434-9200 | Fax: (850) 432-7340
125 East Intendencia Street, 4th Floor
Pensacola, Florida 32502
clarkpartington.com<http://clarkpartington.com/>
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Jeffrey Price
Sent: Wednesday, July 1, 2020 9:05 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] Who can sign liens and releases?

Delivered a partial lien release for a single condo where client has a lien on the entire complex. This was the 6th at this condo for routine sales (Miami-Dade) and was no different that the other 5 (or other 20-some in the last 6 months on other complexes). The release was prepared by me (Attorney for Lienor), signed by me as “Agent/Attorney for Lienor.”

Got into a dispute about the release form (not the amount). First they wanted the jurat changed to duplicate the language as of Jan. 1, 2020 (despite the statute saying the jurat “must be in substantially the following form”). Whatever. Fine.

But then this is forwarded to me. I called “Connie” but because I am not a member of “The Fund” she refused to discuss anything and hung up the phone. (You that have dealt with me can understand, hell, I don’t even like talking to me in a mirror).

Question – has anyone ever heard of this line of reasoning? Does 692 have anything to do with 713 liens and releases?

“The release is signed an agent of a Florida corporation.  Under Sec. 692.01, F.S.,  a corporate officer may sign partial releases of mortgages and acquittances for debts. There is no authority for anyone other than a corporate officer to sign such a document.”
connie Clark
Senior Underwriting Counsel

P: 800.432.9594
[FUND-NEW-Logo-FC200]<http://www.thefund.com/>
  www.TheFund.com<http://www.thefund.com/>

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