[CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
RPPTL CLC-Discussion
clc-discussion at lists.flabarrpptl.org
Thu Oct 7 09:57:36 PDT 2021
I frequently get back documents submitted for e-recording to the Broward recorder within a few hours. The average time from the Miami clerk is 7-10 days.
Charles B. Hernicz, Esq.
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
Chernicz at HerniczLegal.com
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, October 7, 2021 12:09 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
I had a discussion with counsel for a Clerk of Court who advised that the only way to assure a document is recorded as of the day it is received is to hand deliver it. That particular recording office put all mail and e-filings in a queue and got to them when they got to them. Many times I get e-recorded documents back the same day, and usually the next day. I don’t recall week long delays for e-recorded documents. But, there are no guarantees even with e-recording. Moreover, a few counties still do not e-record. Best advice to clients is not to wait until the last minute.
David C. Willis, Board Certified in Construction Law,
Business Litigation and Real Estate
dwillis at rumberger.com | <https://www.rumberger.com/people/dwillis> View my online bio
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, October 7, 2021 11:48 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
It’s a fair and equitable result for the lienor given the facts involved and congrats to Mark for reviving his client’s Lien. However, this is a case in my opinion where a simple PCA would have been preferable. The holding injects unpredictability and uncertainty into title review and lien priority. Formerly, one could look at the filings in the Official Records and rely on them for purposes of determining facial validity of a Lien and date of attachment of the Lien (especially for liens of professional lienors that don’t relate back to an earlier NOC). Now, it seems to me, one has to account for the possibility that though the lien was recorded on x date, payment may have been tendered on y date (which is not part of the readily available Official Records) and the lien may actually attach several days or a week earlier than shown in the Official Records. Besides being the difference between an enforceable and an unenforceable lien, it also can impact lien priority and clear title under certain circumstances.
The advent of e-recording won’t in my experience reduce the likelihood of there being differences between the date of tender of payment and date of recording. Electronic filing queues in some counties result in e-recording several days after submission and tender of payment. The uncertainty for title insurers, lenders and purchasers will produce some new claims and keep us busy but will frustrate commercial actors looking for clarity and efficiency in real property transactions. One possible solution to the issue would be passage of legislation requiring the Clerk to reflect a recording date for a Lien equivalent to the date and time of receipt of tender of payment. Clerks seem to manage back dating litigation filings that are initially received on one date and for various reasons don’t get officially filed in the docket for another few days.
Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600 | Ext: 1378
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LOCAL ROOTS. BROAD REACH. SM
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 RPPTL CLC-Discussion
Sent: Thursday, October 7, 2021 10:40 AM
To: clc-discussion at lists.flabarrpptl.org <mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
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Actually, Pritchett Trucking, the lienor, is represented by Mark Bryan at Lippes & Bryan. It’s Pritchett’s lien which was at issue. TD Farrell Construction, Travelers, and K.T. Carter Contracting would probably have preferred the Clerk’s interpretation of the statutes which would have resulted in Pritchett’s lien being void.
Helen H. Albee
Board Certified in Construction Law
707 Peninsular Place
Jacksonville, FL 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
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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 RPPTL CLC-Discussion
Sent: Thursday, October 7, 2021 10:30 AM
To: clc-discussion at lists.flabarrpptl.org <mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
While I would like to take credit for sending this case out and alerting y’all, it really belongs to Barry Kalmanson, who submitted an Amicus brief on behalf of his client, Zoom Liens, and my client, National Association of Credit Management, Inc., each of whom had a vested interest in the outcome. For some reason Barry could not get the ListServe to accept his submittal, resulting in Barry requesting my assistance.
As for the case holding itself, kudos to the Appellees attorneys: Don Niesen and Ryan Sullivan of Niesen, Price, Worthy, Campo, P.A., Gainesville, for Appellee K.T. Carter Contracting, Inc.; Jonathon D. Pressley and J.D. Humphries, III of Smith Gambrell & Russell, LLP, Jacksonville, for Appellees T.D. Farrell Construction, Inc. and Travelers Casualty & Surety Company of America.
Regards,
Robert B. Worman
Robert B. Worman
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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 RPPTL CLC-Discussion
Sent: Thursday, October 7, 2021 7:43 AM
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Subject: Re: [CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
Thank you Robert,
Brian A. Wolf
Partner
Board Certified Construction Attorney
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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 RPPTL CLC-Discussion
Sent: Wednesday, October 6, 2021 10:34 PM
To: clc-discussion at lists.flabarrpptl.org <mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [EXTERNAL] [CLC-Discussion] [Discussion] 1st DCA Opinion on Clerk's Mandatory Obligation to Record Construction Lien as of Date of Payment for Recording
This Message originated outside of Smith, Currie & Hancock LLP.
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Interesting recent case holding Clerk of Court must show recording date of Construction Lien as of the date payment is received for recording cost, even if there is a delay in the actual recording.
Regards,
Robert B. Worman
Robert B. Worman
Worman & Sheffler, P.A.
2600 Lake Lucien Drive
Suite 405
Maitland, Florida 32751
407 843-5353
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