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Using the System to Get Paid Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is.

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Presentation on theme: "Using the System to Get Paid Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is."— Presentation transcript:

1 Using the System to Get Paid Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby. Shawn W. Potter, Esq Heber Park City

2 Six Phases of a Project Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby. 1) Enthusiasm 2) Disillusionment 3) Panic 4) Search for the Guilty 5) Punishment of the Innocent 6) Praise & Honors for the Non- Participants

3 How to Get Paid! Mechanics Lien Judgment Lien Small Claims District Court Residential Lien Recovery Fund Construction Bonds Contracts Promissory Notes & Collateral (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

4 Types of Mechanics Liens Pre-construction Services Lien To maintain a preconstruction service lien, a claimant must first file a notice of retention with the State Construction Registry within 20 days of commencing preconstruction services. Construction Services Lien You must file a preliminary notice with the State Construction Registry within 20 days of commencing its own work on a project. Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

5 Construction Services Liens Notice of Commencement - Only Government jobs require a Notice of Commencement. All other jobs no longer require a Notice of Commencement. A notice of Commencement must be filed within 15 days after work on the job site has begun. If it is not filed on time or accurately, anyone working on the job is not required to file a Preliminary Notice to make a claim on the payment bond. Preliminary Notice - Original Contractor's are now required to file a Preliminary Notice within 20 days after starting work to maintain their lien rights. The lien priority date for everyone working on the job is now set by the date the first Preliminary Notice is filed and not on the date that actual work began. Intent to Complete - Original Contractors may file an Intent to Complete at least 45 days before a project is able to be Completed. After an Intent to Complete is filed, anyone who has filed a Preliminary Notice must file a Remaining to Complete stating if they have not been paid or if they owe others. The Intent to Complete only applies to non bonded jobs over $500,000. Notice of Completion - Original Contractors file a Notice of Completion after the final inspection, certificate of occupancy, or all substantial work is complete. After a Notice of Completion is filed, all remaining Preliminary Notices must be filed within 10 days after the Notice of Completion is filed and the time to file a lien is reduced to 90 days instead of 180 days. (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

6 Important Definitions CONTRACTOR - A gambler who never gets to shuffle, cut or deal! BID OPENING - A poker game in which the losing hand wins. LOW BIDDER - A contractor who is wondering what he/she has left out. ENGINEER'S ESTIMATE - The cost of construction in Heaven. CRITICAL PATH METHOD - A management technique for losing your shirt under perfect control. OSHA - A protective coating made by half-baking a mixture of fine print, split hairs, red tape and baloney - usually applied at random with a shot gun. STRIKE - An effort to increase egg production by strangling the chicken. DELAYED PAYMENT - A tourniquet applied at the pockets. COMPLETION DATE - The point at which liquidated damages begin. LIQUIDATED DAMAGES - A penalty for failing to achieve the impossible. Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

7 State Construction Registry Indicate the financial advantages for the customer Compare quality and price with those of the competition (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

8 SCR Preliminary Notice (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

9 Information for Preliminary Notice Owner's Name Original Contractor's Name Project Legal Description or Street Address City, Zip Code & County Property County Tax ID Name & Address of Who You Contracted With Your Name, Address, & Phone (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

10 Parcel ID & Legal Description Where to Look County Recorder Website County Recorder Office Title Company Other builders on the site SCR QR Code (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

11 What About... I'm doing work in a retail space for the tenant. I'm working on a federal government project I'm working on a state government project I'm doing snow removal or maintenance. Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

12 Do I Have to File With SCR? No. Only if you might need to record a lien. Who is your contract with? What is the amount of your contract? Could a mechanics lien help me get paid? I totally forgot to file with the SCR, what do I do now to get paid? (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

13 Recording a Mechanics Lien Your Work is Lienable. You already properly filed with the SCR. Within 180 days after the date on which final completion of the original contract occurs, if no notice of completion is filed; or Within 90 days after the date on which a notice of completion is filed under Section 38-1a-507, but not later than 180 days after the date on which final completion of the original contract occurs. (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

14 Basic Form of Mechanics Lien Owner Information Work Completed Amount Owed Legal Description Statutory Residence Language Notarized (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

15 Its Recorded, Now What? You Have to File A Lawsuit: Within180 days after the day on which the claimant files: (i) a notice of preconstruction lien under Section 38-1a- 402, for a preconstruction lien; or (ii) a notice of construction lien under Section 38-1a-502, for a construction lien; or (b) if an owner files for protection under the bankruptcy laws of the United States before the expiration of the 180-day period under Subsection (2)(a), within 90 days after the automatic stay under the bankruptcy proceeding is lifted or expires. Lis Pendens (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

16 Basic Lawsuit Pleadings (Complaint, Answer, Counter) Discovery (Written & Depositions) Pretrial Motions Trial Post Trial Motions Appeal (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

17 Dangers: Deadlines Missing a deadline is most likely fatal to your lien claim. Be aware of the deadlines for filing a claim with the Residence Lien Recovery Fund. (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

18 Dangers: Lien Waivers "UTAH CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT Property Name: _____________________________________________________________ Property Location: ___________________________________________________________ Undersigned's Customer: _____________________________________________________ Invoice/Payment Application Number: __________________________________________ Payment Amount: ___________________________________________________________ Payment Period: ____________________________________________________________ To the extent provided below, this document becomes effective to release and the undersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38, Chapter 1a, Preconstruction and Construction Liens, or any bond right under Utah Code Ann., Title 14, Contractors' Bonds, or Section 63G-6a-1103 related to payment rights the undersigned has on the above described Property once:63G-6a-1103 (1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and (2) the check is paid by the depository institution on which it is drawn. This waiver and release applies to a progress payment for the work, materials, equipment, or a combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer which are the subject of the Invoice or Payment Application, but only to the extent of the Payment Amount. This waiver and release does not apply to any retention withheld; any items, modifications, or changes pending approval; disputed items and claims; or items furnished or invoiced after the Payment Period. The undersigned warrants that the undersigned either has already paid or will use the money the undersigned receives from this progress payment promptly to pay in full all the undersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or combination of work, materials, and equipment that are the subject of this waiver and release. Dated: ________________________ ___________________________________________________________(Company Name) _____________________________________________________By:__________________ _____________________________________________________Its:__________________" (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

19 Lien Waivers UTAH WAIVER AND RELEASE UPON FINAL PAYMENT Property Name: ____________________________________________________________ Property Location: __________________________________________________________ Undersigned's Customer: _____________________________________________________ Invoice/Payment Application Number: __________________________________________ Payment Amount: ___________________________________________________________ To the extent provided below, this document becomes effective to release and the undersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38, Chapter 1a, Preconstruction and Construction Liens, or any bond right under Utah Code Ann., Title 14, Contractors' Bonds, or Section 63G-6a-1103 related to payment rights the undersigned has on the above described Property once:63G-6a-1103 (1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and (2) the check is paid by the depository institution on which it is drawn. This waiver and release applies to the final payment for the work, materials, equipment, or combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer. The undersigned warrants that the undersigned either has already paid or will use the money the undersigned receives from the final payment promptly to pay in full all the undersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or combination of work, materials, and equipment that are the subject of this waiver and release. Dated: ________________________ ___________________________________________________________(Company Name) _____________________________________________________By:__________________ _____________________________________________________Its:__________________ (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

20 Going to Court District Court File Complaint Serve Complaint Discovery Pretrial Motions Trial Obtain Judgment Collect or Record Judgment Lien Small Claims File Complaint Serve Complaint Set Trial Date Trial Obtain Judgment Collect or Record Judgment Lien -cannot foreclose a lien in small claims! (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

21 District Court vs Small Claims Entity Must Have Lawyer No Claim Limit Will Take At Least a Year to Trial Always Professional Judges Up to 60 days after trial for a judgment Owner Can Represent Entity $10, Claim Cap Usually 90 days or so to Trial Sometimes Professional Judges, sometimes volunteers Judgment usually same day as trial (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

22 I Won at Trial, Now What? District Court Potential for Appeal to Supreme Court & Remand Judgment Lien Garnishment Execution Sale Supplemental Proceedings Small Claims Court Potential for Appeal to District Court Judgment Lien Garnishment Execution Sale Supplemental Proceedings (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

23 Residential Lien Recovery Fund To Collect from the LRF you must: Be registered with the LRF. Timely file a civil action against the nonpaying party and the homeowner. Provide the homeowner with the required the application for a Certificate of Compliance. Obtain judgment against the nonpaying party. Attempt to collect on the judgment. Complete and submit the claim application. (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

24 Mechanics Lien vs. Judgment Lien Can Only Foreclose Property Where You Worked Can Foreclose Any of Debtor's Property (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

25 Construction Bonds Failure to Obtain a Bond – Commercial Projects Payment Bond Claims (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

26 Failure to Obtain a Payment Bond Failure of owner to obtain payment bond -- Liability. (1) An owner who fails to obtain a payment bond required under Section is liable to each person who performed labor or service or supplied equipment or materials under the commercial contract for the reasonable value of the labor or service performed or the equipment or materials furnished up to but not exceeding the commercial contract price (2) An action to recover on the liability described in Subsection (1) may not be commenced later than one year after the day on which: (a) the last of the labor or service was performed; or (b) the equipment or material was supplied by the person. (3) In an action for failure to obtain a bond, the court shall award reasonable attorney fees to the prevailing party. These attorney fees shall be taxed as costs in the action. (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

27 Failure to Obtain a Payment Bond (d) (i) "Residential construction" means the construction, alteration, or repair of: (A) single family detached housing; or (B) multifamily attached housing up to and including a fourplex. (ii) "Residential construction" includes rental housing. (2) Before any original commercial contract exceeding $50,000 in amount for the construction, alteration, or repair of any building, structure, or improvement upon land is awarded to any contractor, the owner shall obtain from the contractor a payment bond: (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

28 Other Potential Methods of Collection UCC for Certain Materials Suppliers Execute a Promissory Note for Payment Over Time (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

29 UCC

30 Securing Debts under the UCC Have a written agreement for payment or a note identifying collateral. File the UCC-1 Financing Statement. If you're not paid as agreed, repossess the collateral and sell it to pay the debt. File Suit for collection of the Note, not a construction dispute. (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

31 Contract Clauses for Payment AIA Consensus Notice & Remedy Requirement Changes (c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.


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