Procedure for bringing an action for Mechanics Lein in a circuit court in Missouri
Full Question:
Answer:
Sections 429.010 to 429.340 of Title 27 (Debtor-Creditor Relations) of the Missouri State Code govern Mechanics' and Materialmen's Liens. Since a lot of court procedure is involved, it is always better to get advice of a lawyer.
In Missouri, all actions for Mechanic’s lien must be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment. No lien can continue to exist for more than six months after the lien was filed, unless within that time an action is instituted in court. The pleadings, practice, process and other proceedings are the same as in ordinary civil actions and proceedings in circuit courts. This process includes the filing of a petition or complaint, service of process on the defendant, discovery, various motions, and a hearing before a judge or jury.
The petition filed in court must allege the facts necessary for securing a lien and shall contain a description of the property charged therewith. In all suits, the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties.
The court shall ascertain, by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted, and may render judgment therefore in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs.
The relevant portions of Missouri law read as follows:
§ 429.010 R.S.Mo. discusses the eligiblity for asserting Mechanic's Lien.
§ 429.010. Mechanics' and materialmen's lien, who may assert -- extent of lien
1. Any person who shall do or perform any work or labor upon land, rent any machinery or equipment, or use any rental machinery or equipment, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing, grading, excavating, or filling of the same, or furnish and plant trees, shrubs, bushes or other plants or provides any type of landscaping goods or services or who installs outdoor irrigation systems under or by virtue of any contract with the owner or proprietor thereof, or his or her agent, trustee, contractor or subcontractor, or without a contract if ordered by a city, town, village or county having a charter form of government to abate the conditions that caused a structure on that property to be deemed a dangerous building under local ordinances pursuant to section 67.410, RSMo, upon complying with the provisions of sections 429.010 to 429.340, shall have for his or her work or labor done, machinery or equipment rented or materials, fixtures, engine, boiler, machinery, trees, shrubs, bushes or other plants furnished, or any type of landscaping goods or services provided, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of three acres; or if such building, erection or improvements be upon any lot of land in any town, city or village, or if such building, erection or improvements be for manufacturing, industrial or commercial purposes and not within any city, town or village, then such lien shall be upon such building, erection or improvements, and the lot, tract or parcel of land upon which the same are situated, and not limited to the extent of three acres, to secure the payment of such work or labor done, machinery or equipment rented, or materials, fixtures, engine, boiler, machinery, trees, shrubs, bushes or other plants or any type of landscaping goods or services furnished, or outdoor irrigation systems installed; except that if such building, erection or improvements be not within the limits of any city, town or village, then such lien shall be also upon the land to the extent necessary to provide a roadway for ingress to and egress from the lot, tract or parcel of land upon which such building, erection or improvements are situated, not to exceed forty feet in width, to the nearest public road or highway. Such lien shall be enforceable only against the property of the original purchaser of such plants unless the lien is filed against the property prior to the conveyance of such property to a third person. For claims involving the rental of machinery or equipment to others who use the rental machinery or equipment, the lien shall be for the reasonable rental value of the machinery or equipment during the period of actual use and any periods of nonuse taken into account in the rental contract, while the machinery or equipment is on the property in question.
2. There shall be no lien involving the rental of machinery or equipment unless:
(1) The improvements are made on commercial property;
(2) The amount of the claim exceeds five thousand dollars; and
(3) The party claiming the lien provides written notice within five business days of the commencement of the use of the rental machinery or equipment to the property owner that rental machinery or equipment is being used upon their property. Such notice shall identify the name of the entity that rented the machinery or equipment, the machinery or equipment being rented, and the rental rate. Nothing contained in this subsection shall apply to persons who use rented machinery or equipment in performing the work or labor described in subsection 1 of this section.
§ 429.100. Notification by subcontractors and others
Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of sections 429.010 to 429.340, shall give ten days' notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due. Such notice may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. When served by an officer, his official return endorsed thereon shall be proof thereof, and when served by any other person, the fact of such service shall be verified by affidavit of the person so serving.
§ 429.080. Lien filed with circuit clerk, when
It shall be the duty of every original contractor, every journeyman and day laborer, including persons who use rented machinery or equipment in performing such work or labor, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340, within six months after the indebtedness shall have accrued, or, with respect to rental equipment or machinery rented to others, then, within sixty days after the date the last of the rental equipment or machinery was last removed from the property, to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him.
§ 429.170 R.S.Mo.Actions commenced in six months
All actions under sections 429.010 to 429.340 shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist by virtue of the provisions of said sections, for more than six months after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.
§ 429.180 R.S.Mo.Pleadings as in other civil cases
The pleadings, practice, process and other proceedings in cases arising under sections 429.010 to 429.340 shall be the same as in ordinary civil actions and proceedings in circuit courts, except as herein otherwise provided. The petition, among other things, shall allege the facts necessary for securing a lien under said sections, and shall contain a description of the property charged therewith.
§ 429.190 R.S.Mo. Who may be made parties
In all suits under sections 429.010 to 429.340 the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings.
§ 429.200 R.S.Mo. Personal representative made party, when
In case of the death of any of the parties specified in section 429.190, whether before or after suit brought, the personal representative of such deceased party shall be made plaintiff or defendant, as the case may require, and it shall not be necessary to make the heirs or devisees of such deceased persons parties to the suit; but if there is no personal representative of such deceased person, then his heirs or devisees may be made parties, and if any of the heirs or devisees are minors under the age of eighteen years, their guardians or conservators of their estates shall be made parties with them; but if such minors shall have no guardians or conservators of their estates, the court in which the suit is pending shall appoint guardians ad litem for them in the same manner and under the same rules and regulations as guardians ad litem are appointed in proceedings for partition of real estate, and the judgment and proceedings of such court in any such suits shall be as binding on such minors as if they were over the age of eighteen years.
§ 429.210 R.S.Mo.The judgment
The court shall ascertain, by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted, and may render judgment therefor in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs, although the creditor may have unintentionally failed to enter in his account filed the full amount of credits to which the debtor may be entitled.
§ 429.220 R.S.Mo Judgment by default
Judgment by default shall be rendered against every defendant who, after being summoned or notified according to law, shall not appear and plead within the time allowed in ordinary civil actions.
§ 429.230 R.S.Mo. Judgment on constructive notice
When the debtor has not been served with summons according to law, and has not appeared, but has been lawfully notified by publication, the judgment, if for the plaintiff, shall be that he recover the amount of the indebtedness found to be due, and costs of suit, to be levied of the property charged with the lien therefore, which said property shall be correctly described in said judgment.
§ 429.240 R.S.Mo. Judgment on personal service
When the debtor has been served with summons according to law, or appears to the action without service, the judgment, if for the plaintiff, shall be against such debtor as in ordinary cases, with the addition that if no sufficient property of the debtor can be found to satisfy such judgment and costs of suit, then the residue thereof be levied as provided in section 429.230.
§ 429.250 R.S.Mo.The execution
The execution to be issued shall be a special fieri facias, and shall be in conformity with the judgment, and such writ shall be returnable as ordinary executions; and the advertisement, sale and conveyance of real or personal estate under the same shall be made as under ordinary executions.
§ 429.260 R.S.Mo. Proceeds divided pro rata, when
The liens for work and labor done or things furnished, as specified in sections 429.010 to 429.340, shall be upon an equal footing, without reference to the date of filing the account or lien; and in all cases where a sale shall be ordered and the property sold, which may be described in any account or lien, the proceeds arising from such sale, when not sufficient to discharge in full all the liens against the same without reference to the date of filing the account or lien, shall be paid pro rata on the respective liens; provided, such account or liens shall have been filed and suit brought as provided by said sections.
Further,§ 429.350 R.S.Mo. says about Enforcement of mechanics' liens by associate circuit judge
Associate circuit judges may exercise jurisdiction without special assignment in all actions brought to enforce mechanics' liens when the amount or balance claimed to be due does not exceed the monetary jurisdiction which associate circuit judges may exercise in ordinary civil actions without special assignment.
§ 429.360 R.S.Mo.. Suits for foreclosure, process, procedure--same as other civil suits
The process, practice and procedure, including applications for trial de novo, in suits to enforce mechanics' liens which are heard by an associate circuit judge without special assignment shall be as nearly as practicable the same as provided in other civil suits heard by associate circuit judges. When a case is specially assigned to an associate circuit judge to hear upon a record, the process, practice and procedure, including appeals, shall be the same as if the case was being heard by a circuit judge.
