WHEN TO FILE SUIT TO FORECLOSE YOUR MECHANIC’S AND MATERIALMAN’S LIEN
A Mechanic’s and Materialman’s lien, once filed with the county clerk, is valid for only one (1) year. ?This is because it directly affects the owner’s title, andpublic policy dictates that the lien be enforced within a short period of time. ?Enforcement of a lien is done by filing a lawsuit to foreclose. The courts strictly construe the time limit, i.e., the statute of limitation. ?If you are one day late, the lien may be cancelled by the owner filing an affidavit. Bottom line, do not wait to file suit until the end of the year from the date the mechanic?s lien was filed.
WHERE TO FILE SUIT
Suit must be filed in the district court of the county in which the property is located. Further, it is common for the owner’s construction contract to provide that all disputes will be decided by binding arbitration, as opposed to a court proceeding by judge or jury. In fact, it has long been a tradition to do so in the construction industry. Arbitration is usually quicker and less costly. The decision is final and binding, with almost no right to appeal. There is no right to a jury trial, but that is usually more of a concern to property owners. The Arbitrator is usually an experienced construction attorney or a retired judge. Arbitrations are like a court proceeding with the same general rules of evidence, but much more informal. Since you can only foreclose your lien through a court proceeding, not arbitration, you bring a lawsuit to protect the lien, and then immediately request the court to stay the court proceedings. When the arbitration is done, if you are successful, you go back to court and turn the arbitration award into a judgment.
DO YOU NEED A LAWYER?
Every individual has the right to represent themselves. This means they can prepare all necessary papers, appear at all hearings, and actually try the whole case alone. In so doing, the court considers you to be acting pro se. Before making this decision, consider the following factors:
1. You are a professional and know the ins and outs of not only the construction industry but of the project itself. Your lawyer may not know the facts as well as you.
2. How is your public speaking ability? If you are uncomfortable speaking to a group, you will be even more uncomfortable in court or arbitration. You may not be able to present your arguments. Appearing uncomfortable is often perceived as having deficiencies in your case. People usually think that if you are not comfortable about your own facts, then they must not be that strong.
3. If the other side has a lawyer, you might want to think twice about representing yourself. You will certainly know the facts quite well, but you may be blindsided by legal technicalities.
4. You may also want to think twice if this is a really nasty and emotional case. In other words, if the other side is going for ?blood?. Having a lawyer can shelter you from this emotional trauma. No matter how strong you are, unless you are a lawyer, lawsuits are taxing not only on your time, but on your physical and emotional energies.
5. If you have a good case in which you have complied with all the technicalities and performed good work, you are essentially engaging in a collection action. These actions are typically uncomplicated because there are few defenses or defects alleged by the property owner. This makes it easier for you to represent yourself. ?On the other hand, you will have only yourself to blame if you are unprepared and lose a case that you clearly should have won.
6. If you have a binding arbitration provision, you may consider representing yourself because the arbitrator tends to give you more leeway. There are also fewer rules and not they are usually not quite as strict.
7. You could consider representing yourself but get advice along the way from a lawyer. It is much cheaper that way. On the other hand, the lawyer cannot watch over every move and you might slip up. Many times lawyers can also help you with preparing the forms, simply putting your name on the pleading. You can also bring in your lawyer at the end to actually try the case.
8. Judges and courts do not give legal advice and they cannot make up for you not having a lawyer. ?Judges usually treat you the same as an attorney which means they expect compliance with the rules. Although some judges give you more slack, don?t count on it.