Checklist: Tools for Foreclosing on a Mechanic’s Lien

A mechanics’ lien is a legal claim a contractor or supplier can file in order to be paid for materials or labor. The law allows a subcontractor or supplier that is not paid to file a lien to foreclose on the property where the work took place. They can then sell the property to pay the debt, even if the property owner paid the primary contractor. Thus even when you, the contractor or supplier, are owed only a few thousand dollars, you may legally file a mechanics’ lien against real property with a value of hundreds of thousands of dollars in order to recover your loss.

If you are working on your case without the help of an attorney, the court will hold you to the same standard as if you were a lawyer. You will be expected to file key documents on time, present evidence and get it admitted for the record, attend hearings – the list goes on. The courts are busy and they have an obligation to keep cases moving. They don’t have time to hold your hand through the process. Their objective is to reach a ruling, not teach you how to file and litigate a mechanic’s lien.

A mechanics lien is a very powerful option for any contractor or supplier to get paid for their work or materials. However, because liens are so powerful, the courts require the rules to be precisely followed within a specific timeframe. They can invalidate the lien if a single piece is missing, and even charge you for any attorney’s fees accumulated by the property owner. As a contractor, you have one chance to get this right before running out of time (and/or running up your liabilities).

The list of the required steps is below, but many have a specific legal meaning or significance. An experienced real estate attorney can work with you to make sure each step is followed carefully and deliberately so that you can effectively pursue the payment owed to you. Contact us for an assessment at (303) 688-0944.

Preliminary

• Title Commitment, Foreclosure Certificate, or Litigation Guarante
• Certificate of Taxes Due
• Retainer ($________)

Pleadings

• Summons
• Complaint (full caption)
• Notice of Commencement of Action (Lis Pendens) (full caption)
• Motion for Appointment of Receiver
• Order Appointing Receiver

Follow Up

• Record Lis Pendens (fill in case number first)
• Update title evidence through recording of Lis Pendens
• Amend Complaint as necessary
• Record Amended Lis Pendens if necessary
• Serve Summons and [Amended] Complaint if possible (personal service)
• Receivers Oath, Bond, Inventory, Reports

Publication (if necessary)

• Motion for Publication with Affidavit
• Order for Publication
• Summons by Publication
• Certificate of Mailing
• Publisher’s Affidavit

Military Attorney (if necessary)

• Motion for Appointment of Military Attorney and for Entry of Judgment
• Affidavit Re: Military Service
• Order Appointing Attorney
• Answer of Attorney Appointed by the Court

Trial

• Notice to Set
• Setting (___, _; ___ _.M.)
• Witnesses and/or Exhibits?
• Affidavits?
• Judgment and Decree of Foreclosure (full caption)

Sheriff’s Sale

• Record Decree
• Obtain and Record Transcript of Judgment Docket in ___ Counties
• Update title evidence through recorded Decree
• Mailing List
• Notice of Sheriff’s Sale
• Notice of Rights
• Certificate of Mailing for notices (and stamped envelopes—sheriff to make copies?)
• Proof published Notice of Sale
• Bid
• Publisher’s Affidavit
• Certificate of Purchase
• Check payable to Sheriff for Sheriff’s fees
• Separate check to Clerk and Recorder to record Certificate of Purchase (if not included in sheriff’s fees)
• Report and Return of Sheriff, with Order attached
• End of Redemption Periods
• Sheriff’s Deed

Follow Up

• Motion to Discharge Receiver
• Order Discharging Receiver and Releasing Surety Bond
• Title Insurance Policy Issued
• Letter to Client