What Happens to Your Massachusetts Mechanic’s Lien in a Bankruptcy?
This week we shared an article that focused on the impact of bankruptcy on mechanic’s lien claimants for projects in Massachusetts. In How Bankruptcy Affects Mechanic’s Lien Rights, authors Gregory M. Boucher and Steven Reingold, explain what happens under the automatic stay, the importance of complying with the bankruptcy code, and the key element of when a lien “relates back.”
What Happens Under the Automatic Stay?
Once a bankruptcy petition is filed, the automatic stay prevents creditors from further pursuing the collection of debts. This injunction occurs the moment a party files for bankruptcy protection, hence the “automatic” of automatic stay.
If you are furnishing to a construction project and the project owner files for bankruptcy protection, you can still perfect or file your mechanic’s lien without violating the automatic stay. However, you must comply with section 362(b)(3) of the bankruptcy code and should you need to file suit to enforce your mechanic’s lien, you would have to seek relief from the automatic stay.
It’s a bit trickier when another party in the ladder of supply, such as the general contractor, files for bankruptcy protection. According to Boucher & Reingold “…when a general contractor files for bankruptcy, a subcontractor or supplier might violate the automatic stay by taking action to assert or perfect a mechanic’s lien, even if the owner is not in bankruptcy.”
Might is the keyword here. Boucher & Reingold referenced a NJ case where the GC filed for bankruptcy protection and the court determined payments owed from the owner to the GC were property of the bankruptcy estate. And, as with all things in the mechanic’s lien world, whether a lien filing violates an automatic stay may be state-specific and could be based on attachment.
When the Lien Relates Back or Attaches
Authors Boucher & Reingold use the phrase “relates back,” however, you may have also heard it referred to as attachment. When does a lien attach to the property? In the state of Minnesota, liens attach from the time of first furnishing materials or services. In Ohio, liens are “…effective from the date the first visible work or labor is performed or the first materials are furnished by the first original contractor, subcontractor, material supplier, or laborer to work, labor on, or provide materials to the improvement.
Boucher & Reingold cite Massachusetts and Pennsylvania as additional examples of states where the lien attaches or relates back to the date of first furnishing, and the state of Florida, where the lien attaches to the date of the recording of the Notice of Commencement.
“…in Florida, such rights “relate back” to the date of the recording of a Notice of Commencement in the public records concerning the real property improvements, which typically precedes that start of the work. In those states, where the first date of labor or materials, or the recording of a Notice of Commencement, precedes a bankruptcy petition, a claimant may still proceed with asserting and perfecting its mechanic’s lien rights.”
Claimants should be cautious in states where statute doesn’t allow lien rights to relate back, warns Boucher & Reingold. “However, in those states whose mechanic’s lien laws do not provide for a claimant’s rights to “relate back,” such as New Jersey and New York, a claimant has no ability to assert or perfect its mechanic’s lien rights once a party files for bankruptcy protection without first seeking relief from the automatic stay.”
Know Before You Go
Become familiar with the dates lien attach in the various states, so that you are aware of potential problems. If a party within the ladder of supply files for bankruptcy, ensure your potential or existing mechanic’s lien filing is not in violation of the bankruptcy code.
Proactively, you may want to consider monitoring all parties with a service such as bankruptcy monitoring, which will alert you of a party’s bankruptcy filing. Time is of the essence when a party files for bankruptcy protection, and the sooner you know the faster you can act.
