Who do I collect from if the property I am owed for work on is in foreclosure?
Full Question:
If I have placed a construction lien for labor and material not payed at the completion of a job under contract and the bank is attempting to foreclose, do I still have a right to seek payment from the bank or property owner?
01/11/2009 |
Category: Contractors ยป Construction... |
State: New Mexico |
#14964
Answer:
A proceeding to enforce a mechanics lien in NM must be brought within two years after the claim of lien has been filed. If a lien, such as a mortgage, was recorded before the mechanics lien, it may have priority. By having priority, the prioritized lien will be paid first, and then any remaining proceeds will be used to pay junior creditors. If a bank is not a party to a construction contract, a mechanics lien may not be enforced against it.
The following are NM statutes:
48-2-5. Preference over other encumbrances.
A. The liens provided for in Sections 48-2-1 through 48-2-17 NMSA 1978
are preferred to any lien, mortgage or other encumbrance which may have
attached subsequent to the time when the building, improvement or
structure was commenced, work done or materials were commenced to be
furnished; also to any lien, mortgage or other encumbrance of which the
lienholder had no notice and which was unrecorded at the time the
building, improvement or structure was commenced, work done or the
materials were commenced to be furnished.
B. Liens filed by registered surveyors shall have priority equal with
other mechanics' and materialmen's liens, but work performed by
registered surveyors shall not constitute the commencement of
construction.
48-2-2.1. Procedure for perfecting certain mechanics'
and material-men's liens.
A. The provisions of Subsections B through D of this
section do not apply to claims of liens made on residential
property containing four or fewer dwelling units, to claims
of liens made by an original contractor or to claims of
liens made by mechanics or materialmen who contract
directly with the original contractor. For purposes of this
section, "original contractor" means a contractor that
contracts directly with the owner.
B. No lien of a mechanic or a materialman claimed in an
amount of more than five thousand dollars ($5,000) may be
enforced by action or otherwise unless the lien claimant
has given notice in writing of the claimant's right to
claim a lien in the event of nonpayment and that notice was
given not more than sixty days after initially furnishing
work or materials, or both, by either certified mail,
return receipt requested, facsimile with acknowledgement or
personal delivery to:
(1) the owner or reputed owner of the property upon which
the improvements are being constructed; or
(2) the original contractor, if any.
C. If the owner or the original contractor claims lack of
notice as a defense to the enforcement of a lien described
in Subsection B of this section, the owner or contractor
shall show that upon the request of the mechanic or
materialman that the owner or contractor furnished to the
lien claimant not more than five days after such request
was made:
(1) the original contractor's name, address and license
number, if there is an original contractor on the project;
(2) the owner's name and address;
(3) a description of the property or a description
sufficiently specific for actual identification of the
property; and
(4) the name and address of any bonding company or other
surety that is providing either a payment or performance
bond for the project.
D. The notice required to be given by the claimant pursuant
to the provisions of Subsection B of this section shall
contain:
(1) a description of the property or a description
sufficiently specific for actual identification of the
property;
(2) the name, address and phone number, if any, of the
claimant; and
(3) the name and address of the person with whom the
claimant contracted or to whom the claimant furnished labor
or materials, or both.
E. A person required by the provisions of Subsection B of
this section to give notice to enforce the person's claim
of lien may elect not to give the notice, but may give the
required notice at a later time. If the person elects to do
so, the lien shall apply only to the work performed or
materials furnished on or after the date thirty days prior
to the date the notice was given. The provisions of
Subsections C and D of this section apply to any notice
given under this subsection.
48-2-6. Time for filing lien claim; contents.
Every original contractor, within one hundred and twenty days after the
completion of his contract, and every person, except the original
contractor, desiring to claim a lien pursuant to Sections 48-2-1 through
48-2-19 NMSA 1978, must, within ninety days after the completion of any
building, improvement or structure, or after the completion of the
alteration or repair thereof, or the performance of any labor in a mining
claim, file for record with the county clerk of the county in which such
property or some part thereof is situated, a claim containing a statement
of his demands, after deducting all just credits and offsets. The claim
shall state the name of the owner or reputed owner, if known, and also
the name of the person by whom he was employed, or to whom he furnished
the materials, and shall include a statement of the terms, time given and
the conditions of the contract, and also a description of the property to
be charged with the lien, sufficient for identification. The claim must
be verified by the oath of himself or of some other person.
