Service Area: Notice and Mechanic’s Lien Services

Importance of Complying with Arizona State Lien Laws

Posted on March 21, 2016 by - Mechanic's Liens & Bond Claims

Failure to Substantially Comply With State Law Renders Arizona Lien Unenforceable

You put substantial time, energy, and materials towards completion of the project for which you were hired. You serve your preliminary notice, making sure you comply with all your state’s requirements for a valid mechanic’s lien.  You complete the work but unfortunately do not receive payment.

Then you take all the requisite steps to establish a valid mechanic’s lien and have no reason to believe you will not fully recover. However, when you file to foreclose the lien, you learn it is invalid due to your failure to comply with some very specific state requirements concerning the preliminary 20-day notice and claim of lien.

Although you thought you followed the law down to every last detail, you have lost your essential remedy of a mechanic’s lien.

The Case

This tragic scenario is exactly what occurred in the Arizona case of MLM Const. Co., Inc. v. Pace Corp, 172 Ariz. 226, 836 P.2d 439 (1992).  In MLM Construction, Pace Corporation contracted to construct a shopping center on property owned by Garden Lakes Center Associates, in Phoenix, Arizona. BCN lumber was a subcontractor on the project, and MLM Construction Company entered into a subcontract with BCN to provide carpentry labor and materials for $64,945.00.

MLM provided the agreed upon materials and labor and served a preliminary 20-day notice, as required under Arizona Rev. State. Ann. § 33-992.01. The preliminary notice form was titled “Arizona Preliminary Notice in accordance with Arizona Revised Statutes § 33-992.01 and § 33-992.02.”

Arizona Revised Statute § 33-992.01(C)(5) required, however, that the preliminary notice state in bold-faced type, “[i]n accordance with Arizona Revised Statutes § 33-992.01, this is not a lien and this is not a reflection of the integrity of any contractor or subcontractor.”   While MLM’s notice complied with all other requirements set out in § 33-992.01, it failed to include this language. The appellate court was left to grapple with the question of whether MLM complied with the statute sufficiently to have his lien be perfected.

The Court Says No

The court held that the statutory requirements for mechanic’s liens must be strictly followed in order to perfect a lien.  he court found that while substantial compliance with the law can be sufficient to perfect a lien, in this case, the failure to include the language that “this is not a lien…” was a fatal defect.  The omitted language was of sufficient significance, that failure to include it could not result in substantial compliance.  MLM’s lien was held to be unenforceable on this ground.

The deficient preliminary notice was not MLM’s only mistake.

The Arizona court also found that MLM’s lien failed on one additional ground.  Arizona Revised Statute § 33-992.02 requires a lien claimant prove he served his preliminary notice by either obtaining the recipients’ signatures on written documents acknowledging receipt, or by affidavit of the person making the service, showing the time, date, place, and manner of service.

Arizona Revised Statute § 33-993 (A), requires that a copy of the preliminary notice and proof of service must be attached to the notice and claim of lien.  MLM failed to attach any proof of service to his notice of lien.  The court found this failure, even though service was accomplished, rendered MLM’s lien unenforceable.

The case of MLM Construction highlights the technical details involved in the lien process and the ease with which one can make a costly mistake along the way.  MLM believed it took all requisite steps, but MLM’s failure to comply with Arizona’s lien laws on two small technical details cost it.

The takeaway: consult with professionals when securing mechanic’s lien or bond claim rights!

Bankruptcies in the Oil and Gas Industry

Posted on March 18, 2016 by - In Other Commercial Credit News

Bankruptcies in the Oil and Gas Industry and What it Means for You as a Supplier

Do you know it only cost me $20 to fill my tank last weekend? It was awesome! Although low oil prices are great for me at the pump, they are lousy for the oil and gas industry. Oil companies are filing bankruptcy and suppliers, secured & unsecured, are feeling the pain.

This week we shared an article from Fox Rothschild LLP, Rights of Suppliers: An Oil and Gas Industry Primer, which addressed some supplier concerns, in particular what remedies are available.

First on their list: “Adequate Assurance of Future Performance.” Did you know that you, as a supplier, can suspend performance? You can’t just arbitrarily back out of a supply contract, but according to the authors

“UCC § 2-609 provides a supplier who has reasonable grounds for insecurity with respect to the performance of its counterparty the ability to demand request in writing adequate assurance of due performance. The supplier may, if commercially reasonable, suspend any performance for which he has not already received the agreed return until he receives that assurance.”

Suppliers also have the right to recall goods. The article indicates that if your goods are in transit at the time of your customer’s insolvency (i.e. not in your customer’s hands at the time of the bankruptcy filing), you may be able to recall the shipment without violating the automatic stay. “Recall under UCC § 2-705 is generally not a violation of the automatic stay for the simple reason that the goods have not yet become the property of the debtor/buyer.”

Third on their list is good old reclamation! What happens if your customer already has your goods and then they file for bankruptcy protection? As the supplier, you may have the option to reclaim those goods – but be careful; the window of time is short and it’s not without its share of obstacles.

 “…court decisions highlight a number of very substantial hurdles confronting a supplier seeking to assert the right to reclaim goods already received. First, in order to recover, the supplier must make a detailed written demand within the required time frame, which is 10 days after receipt outside of bankruptcy and 20 days if the buyer has filed bankruptcy. Second, the supplier must be able to establish that he did not become aware of the insolvency until after receipt of the goods. This would apply to each particular shipment at issue. Third, the supplier must also prove that the goods sought to be reclaimed are still in fact possessed by the counter party in their original form (and not incorporated into another product) in order for reclamation to be effective. This requirement suggests that a supplier act as quickly as feasible in enforcing their reclamation rights. Finally, and most significant are a number of cases recently decided that tend to establish that the right of reclamation is subject to the rights of other creditors who have obtained liens on the buyer’s inventory and that extend to the supplier’s goods upon receipt by the debtor. Essentially, where the supplier has an inventory finance arrangement by a bank or other financial source, the right to reclamation has proven to be essentially illusory.”

If you have been notified of your customer’s insolvency, seek legal guidance as soon as possible

Here’s What Wikipedia Can’t Tell You About Collections

Posted on March 15, 2016 by - Credit Risk Management, Mechanic's Liens & Bond Claims, UCC Financing Statements

Here’s What Wikipedia Can’t Tell You About the Collection of Past Due Accounts

It seems people recognize that Wikipedia isn’t the most reliable resource for information (not like the ol’ “trusty”, 50 lb, Encyclopedia Britannica – don’t laugh, I have an entire set collecting dust on my bookshelf).

Unfortunately, credit professionals still use Wikipedia to determine mechanic’s lien/bond claim deadlines, the steps for filing UCCs and even for best practices on collecting past due receivables.

“Collection”: A Thoroughbred Racehorse?

I searched the term “collections” in Wikipedia and quickly found various results which included cash collection, artwork, abstract data, horses (including an “Irish bred, Hong Kong based Thoroughbred racehorse”) and various books/novels.

I narrowed my search and the results provided definitions for “past due”, “outstanding”, “overdue” invoices, and “see also: accounts receivable”.

The Wikipedia search of “accounts receivable” explains what accounts receivable is, what payment terms are and bookkeeping information.

It’s an endless click-trail of key terms. Shew! There is a lot of info, such as debt collection began in the summer of 3000 BC (really?!). Unfortunately, I’m not seeing the one thing I was here to find: a how-to for collections.

And Then It Hits Me, Like a Bookshelf Full of Encyclopedias

Wikipedia can tell me the “what”, meaning it can provide me general definitions and the origins of words/topics, but it can’t tell me “how”. Wikipedia can’t tell me how to collect past due receivables.

Wiki-Can’t-How. Fortunately, I work with B2B collections experts, so I don’t have to go far to learn more about HOW to manage the collection process and collect past due receivables.

Here’s Some “Hows”

  • Monitor open invoices | Routinely review open invoices and as soon as an invoice is past due (e.g. If you bill on 30 day terms, day 31) contact your customer and inquire on the invoice.
  • Try multiple mediums | Phone calls, emails, demand letters etc. & make sure you keep track of your communications – good record keeping is important!
  • Pay attention to cues | Social cues & non-verbal cues are frequently early warning signs that an invoice (or customer) is going to be an issue. When people stop communicating they are sending a clear signal “I can’t/won’t pay the invoice, and maybe if I ignore you, you will go away”.
  • Check status | Note changes with your customer’s business such as a disconnected phone number, undeliverable mail & email, and changes in their corporate status with the Secretary of State.
  • Review credit | Credit reports can provide a wealth of information, especially for payment history, DBT changes, recent collection placements or judgments.
  • Cut them off | If you have invoices that a customer isn’t paying, stop extending them additional credit. Debt is like a beast and if you continue to feed it, it will gobble up every last bit and give you nothing in return.
  • Know when to let it go | And by “let it go” I don’t mean toss the invoice into the bad-debt-write-off-pile. “Let it go” from your desk and move it to the desk of a specialized collection agency. Collection agencies are trained and experienced, not to mention, a third party is sometimes more effective simply because they are a third party – removed from the situation.
  • Don’t wait | Whatever steps you take, make sure you don’t let that receivable age for too long. It is a well-known fact, and long studied trend, that the longer an account remains past due the harder it becomes to collect.

Per the results from a survey hosted by the Commercial Law League of America “…the probability of full collection on a delinquent account drops dramatically with the length of delinquency… even after only three months, the probability of collecting a delinquent account drops to 68.6%. After six months, collectability drops to 52.1%. And after one year, the probability of ever collecting a delinquent account drops to 9.3%.”

What Did We Learn?

Wikipedia may tell you “what” a collection is, but it can’t tell you “how” to manage the collection of past due accounts. Need the “hows” of credit management, you should let NCS know! Million-dollar idea: we could change our name to NCS-opedia…

What is a Public Private Partnership (P3)?

Posted on March 1, 2016 by - Preliminary Notices & Construction Credit

What is a Public Private Partnership?

By now it is quite likely you are familiar with, or at least heard of, public-private partnerships; also known as “P3” or “PPP”. These projects are rapidly growing, throughout the country, and over 30 states provide separate mechanic’s lien statute specific to P3 projects.

The National Council for Public-Private Partnerships defines Public-Private Partnerships as a “contractual arrangement between a public agency (federal, state or local) and a private sector entity. Through this agreement, the skills and assets of each sector (public and private) are shared in delivering a service or facility for the use of the general public. In addition to the sharing of resources, each party shares in the risks and rewards potential in the delivery of the service and/or facility.”

The U.S. Department of Transportation defines Public-Private Partnerships similarly, with the exception that it specifically calls out transportation projects.

“Public-private partnerships (P3s) are contractual agreements formed between a public agency and a private sector entity that allow for greater private sector participation in the delivery and financing of transportation projects.”

P3s Can Save Money

Essentially: a P3 is a way to assist public entities with improving public infrastructure by teaming up with a private entity for funding.

More states are partnering with private entities for improvements to public infrastructure; the costs can be much lower for the public entity, and the private entity can profit from their involvement.

P3 Legislation

Each state has individual specifications for what qualifies as a public private partnership; therefore it is important to review each project individually. (I would recommend seeking legal counsel!)

As mentioned above, over 30 states have adopted some form of P3 legislation. Within the last year, D.C., Georgia & Maryland enacted P3 laws, states like Ohio & Alabama updated their statute to provide further clarification, and Arkansas & California have legislation pending*.

For the last few years, The American Subcontractors Association (ASA), in partnership with the National Association of Surety Bond Producers (NASBP) and The Surety & Fidelity Association of America (SFAA), has released a helpful reference guide “Public-Private Partnership Laws in the States, including Surety Bond Requirements.”

Be Cautious: Carefully review P3 legislation, as it may not mandate that the private entity, contracting for the public project, should obtain a payment bond.

It’s Going International

As an aside, the idea of public entities partnering with private entities for improvements to public infrastructure is not just a national phenomenon. It is international. Countries all over the world have adopted similar concepts: South Korea, France, United Kingdom, Brazil & Chile to name a few.

Canada also has its own version of a P3. Per PPP Canada, a P3 is a “…long-term performance-based approach to procuring public infrastructure where the private sector assumes a major share of the risks in terms of financing and construction and ensuring effective performance of the infrastructure, from design and planning, to long-term maintenance.”

PPP Canada expands a little further on defining P3s:

  • Governments do not pay for the asset until it is built;
  • A substantial portion of the cost is paid over the life of the asset and only if it is properly maintained and performs according to specifications; and
  • The costs are known upfront and span the life-cycle of the asset, meaning that taxpayers are not on the financial hook for cost overruns, delays or any performance issues over the asset’s life.

*the legislation is pending as of the date this article was written, 12.15.15

Gootee Construction v. Atkins Could Impact Your Bond Claims

Posted on February 22, 2016 by - Mechanic's Liens & Bond Claims

Decision in Louisiana Court Could Impact Your Bond Claim Deadline

Because the claim was filed before the filing of the notice of completion, it was deemed premature and the claim was subsequently invalidated – this was the ruling from a Louisiana Appeals Court in late 2015.

The Case: Gootee Construction, Inc. v. Dale N. Atkins, et al.

A subcontractor, LandCoast Insulation, Inc. (“Land”), contracted with Gootee Construction, Inc. (“Gootee”) for the improvements to a public project.

There were some disagreements about work completed per the contract, etc. Ultimately, Land filed a Statement of Amount Due (aka bond claim/public improvement lien) because they were not paid for services rendered.

Gootee contested the filing, saying owner had not yet released funds because the project was not complete, therefore no money was actually due to Land, which meant that Land had no right to file a claim.

The Decision

The Court of Appeals agreed with Gootee. The court advised that Land did, in fact, file their claim too early. Here’s the court’s interpretation of statute:

“The statute does not state that the claim must be filed within forty-five days “of” acceptance, but rather, within forty-five days “after” the acceptance.”

When Land proceeded with their claim, they interpreted statute to mean that as long as they filed within 45 days of acceptance, they would be secured.

Land is not the only party to interpret statute this way – previously cited cases, Levingston Supply Co. v. American Employers’ Company and VVP AM., Inc. v. Design Build Dev. Servs., shared Land’s interpretation.

From VVP Am., Inc. v. Design Build Dev. Servs. “…the court reasoned that the statutes do not require an acceptance as a condition precedent to demand for payment or a lien. Thus, a lien can be filed before the 45-day period is activated”

Actual Statute: §2242. B. Any claimant may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done.

Case Law: Please remember, this is case law, and it can vary by court, or it could be overturned at any time!

Mechanic’s Liens: Understanding Ship and Delivery Dates

Posted on February 15, 2016 by - Preliminary Notices & Construction Credit

Should You Use the Ship Date or Delivery Date When Calculating Mechanic’s Lien and Bond Claim Deadlines?

We are often asked “Should I use my ship date or delivery date to calculate my lien deadlines?” Furnishing dates can make or break your rights to file a mechanic’s lien or serve a bond claim. In fact, your first furnishing and last furnishing dates are two of the 5 key pieces of information needed to determine whether you are within your rights to properly secure your claim.

Need a refresher on the other key pieces?

  • the project type
  • who you sold to in the ladder of supply
  • the state in which the project is located
  • first and
  • last furnishing dates

This information, at a bare minimum, typically provides the framework for calculating preliminary notice, mechanic’s lien, bond claim & suit/foreclosure deadlines.

We’ve previously discussed what constitutes a furnishing date, and we talked about those instances where a notice should be served after you begin furnishing and when mechanics lien and bond claim deadlines are based on completion.

Today, let’s answer this question:

“Should I use my ship date or delivery date to calculate my deadlines?”

I would love to make an easy blanket statement that it doesn’t matter… but you and I both know that would be a lie! Each state, as with everything else as it pertains to lien rights, has its own definition of what a furnishing date is.

Now, I will say that we always recommend calculating deadlines conservatively (in most cases it’s better to be a wee bit early than a wee bit late) and using the earlier ship date for furnishing would be more conservative than using the delivery date.

Examples: New Jersey & Ohio

In New Jersey, “furnishing” is defined as the “date you furnish” which could be strongly argued to mean the date you shipped to your customer or jobsite vs. the date the materials actually arrived on the jobsite.

Further, your contract may dictate whether or not the ship date or a delivery date should be used as your furnishing date.  If you are responsible for the freight charges or delivery of the materials, the delivery date can be used – I like to think of it as the date the materials left your hands.

If you are not responsible for shipment (for example, the materials are being shipped F.O.B. by common carrier) the ship date should be used (again, think of it as the date the materials left your hands).

In Ohio, our attorney has advised that first furnishing is based upon when the materials shipped to the jobsite and not when they arrived.  This can be crucial in calculating the timeliness of the preliminary notice or mechanic’s lien.

Invoice Dates vs. Furnishing Dates

Another factor to consider is whether you are basing your deadlines on invoice dates instead of actual shipping or delivery dates. Be careful with invoice dates, be sure that the date you are using is not later than your ship date or, in the case of services, the date the services were actually provided.

Oh no!  What do I do?!

When calculating deadlines, it is always best to be conservative. Be sure to list the earlier of the dates, which will most likely be the actual ship date.

Expected Payment and Expiring Lien Deadlines

Posted on February 2, 2016 by - Preliminary Notices & Construction Credit

“I’m not going to file a mechanic’s lien, my customer says he is going to pay me by the end of the week.”

Time and time again, I hear some version of the same story: “I’m not going to file a mechanic’s lien, my customer says he is going to pay me by the end of the week.” 

And the “end of the week” becomes the end of next week or the end of next month. The lien deadline creeps up, statute is unforgiving, and days before the last possible moment…

“I’m going to wait, there was a mishap with payments, but my customer said he has it squared away and I will see payment soon. You can let the mechanic’s lien deadline expire.”

And then it happens. Bam! Lien deadline has passed, no payment was made, it is the proverbial “up a creek without a paddle”. This is precisely what has happened (and is ongoing) to several construction companies in Connecticut.

The “BackStory”

You may or may not be familiar with Back9Network Inc. “…golf’s premier lifestyle and entertainment destination… Back9Network joins ESPN, NBC Sports and YES Network in Connecticut, which is quickly becoming the sports media capital of the world.” And, you may or may not be aware that Back9Network filed for bankruptcy protection at the end of 2015.

The bankruptcy petition indicates Back9Network has assets and liabilities between $10M-$50M. To be more precise, the company has assets of approximately $15.7 million and unsecured creditors (i.e. those that did not file UCCs or mechanic’s liens) are owed approximately $14.8 million – this is of course, absent those that have secured claims, like the State of Connecticut, who secured over $4.7 million with a UCC filing, which means the liabilities outweigh their assets.

Needless to say, basic math tells me there won’t be enough money to pay the unsecured creditors in full. With that in mind, let’s circle back to the construction companies I mentioned above.

To Lien or Not to Lien

Back9Network was a new venture and required a studio for their production. Back9Network hired contractors, who in turn hired subcontractors and material suppliers, to build their studio in Hartford, CT. Steel beams, drywall and architectural designs are just a few of the contributions that would go unpaid.

Back9Network hit the financial skids, obviously, and were unable to pay the contractors, subs & material suppliers. Fortunately, these parties supplying materials and labor took steps to secure their rights to a mechanic’s lien, right? Well… no – as in no, the parties did not file mechanic’s liens.

But, why? Why wouldn’t these parties secure their lien rights? Especially when working capital is crucial to the construction industry:

“Construction is all about cash flow,” Salamone said. “Cash is king… If you don’t get $50,000 in, that’s a big nut. That’s a weekly payroll. That’s a yearly salary for one of our guys.” – Glenn Salamone, QSR Steel Corporation

If “cash is king”, why wouldn’t you protect your mechanic’s lien rights? Because filing a lien will “rock the boat”.

Do as I Say, NOT as I Do?

Allegedly, the general contractor, Associated Construction, “encouraged” its subs and material suppliers to not file mechanic’s liens.

In an interview with WNPR, Glenn Salamone of QSR Steel a subcontractor, said Associated Construction, asked him not to file a mechanic’s lien:

“He said to me, if we do that, it’s going to scare the investors away,” Salamone said. “It’s going to rock the boat, and chances are nobody’s going to get paid.”

Out of curiosity, I ran a query through LienFinder™ and discovered two parties did, in fact, file mechanic’s liens on this project. As you may have guessed, Associated Construction did not heed their own “advice”, and filed a mechanic’s lien in February 2015 with a claim amount over $400,000.

This quote from Mr. Salamone sums up the frustration “He essentially covered his ass,” Salamone said of the leadership at Associated Construction.” – courtesy of WNPR

Despite this “advice” from the general contractor, the subcontractors & material suppliers should have taken steps to protect their mechanic’s lien rights. As you know, the mechanic’s lien encumbers the physical property that is being improved, and is not necessarily tied to the assets of an entity (although, to disclaim: in this case, the studio was leased by Back9Network, so there are lien/leasehold situations that may arise).

Lesson Learned: Back 2 Basics

It’s scary. Too often, companies are led to believe that by protecting their rights to get paid, they will jeopardize projects and relationships. Companies fear that sending preliminary/prelien notices and securing mechanic’s liens, will somehow align stars so that the world implodes. OK, that may be an exaggeration, but the fear is real and it shouldn’t be.

Mechanic’s Lien and Bond Claim laws are there to protect parties supplying to construction projects. If you take the steps to secure rights and get paid without having to enforce those steps, then no harm no foul, but if you don’t take steps and don’t get paid – well, you find you’re up that creek without a paddle.

All parties supplying materials or labor to a construction project should take the appropriate steps to secure their mechanic’s lien and bond claim rights – all parties, all projects, all the time, no exceptions.

California Lender Search: a Best Practice

Posted on January 25, 2016 by - Preliminary Notices & Construction Credit

California Lender Search: a Best Practice

A customer contacted NCS with the following conundrum:

“I have an $800,000.00 private project in California. My customer returned the completed Job Information Sheet and the lender spot was marked with “no lender-owner financed”.  I know the lender has to receive a copy of the preliminary notice, is this proof that there is no lender?”

Since the client took steps to obtain the project information, including the ladder of supply, is the job information sheet “proof” that he performed the due diligence necessary to secure lien rights?

As you know, I am not an attorney, so I sought a legal opinion from an attorney in our national network:

“… as of right now, there is no case law as to whether or not you can assume the information you are provided is correct as to there being no lender on a project.  Creditors should always perform a search to confirm whether or not there is a construction loan on the project.”

The attorney added that prior to the July 2012 revisions to the California statute, case law indicated that due diligence for obtaining lender information included checking the building permit and checking for a construction loan.

However, current statute says lack of information on the building permit does not relieve the requirement to serve the lender, and also, even though a loan may not be labeled as a construction trust deed, you still have to notify the lender.

NCS Best Practice

Perform formal searches on any party required to receive a copy of a notice. (This goes for liens/bond claims too – you should always confirm the parties within the ladder of supply.) Many attorneys & organizations, like NCS, provide research/investigative services – in fact, we offer a Lender Search specifically.

Not interested in paying a provider to obtain the information for you?

The DIY Best Practice

Contact the GC. According to California statute, the information should be provided in the contract and the GC must provide the name and address for the owner and lender:

"8170. (a) A written direct contract shall provide a space for the owner to enter the following information: (1) The owner's name, address, and place of business, if any. (2) The name and address of the construction lender, if any. This paragraph does not apply to a home improvement contract or swimming pool contract subject to Article 10 (commencing with Section 7150) of Chapter 9 of Division 3 of the Business and Professions Code. (b) A written contract entered into between a direct contractor and subcontractor, or between subcontractors, shall provide a space for the name and address of the owner, direct contractor, and construction lender, if any. 8208. A direct contractor shall make available to any person seeking to give preliminary notice the following information: (a) The name and address of the owner. (b) The name and address of the construction lender, if any."

Bottom Line: Seek legal guidance and always perform the search – better safe than sorry!