What options do I have to remove the lien by the subcontractor since the contractor did not pay him?
Full Question:
We had a riding arena built on our property. The job was completed and we paid the contractor in full. It turns out the contractor has now filed for bankruptcy and he did not pay one of his subs in full. Now I have a lien against my property and the sub is asking for the $14,000 the contractor owes. What can I do? I have a signed contract signed by the contractor stating all his subs have been paid in full.
04/03/2009 |
Category: Contractors ยป Construction... |
State: Oregon |
#15874
Answer:
A property owner may post a bond with the county recorder and serve a lien claimant with a demand to release the lien. An affidavit of service of the demand must also be filed withthe county recorder. If the lien is not released within 10 days after delivery of the demand and notice and the lien claimant or an assignor of the lien claimant does not bring a suit to foreclose the lien within the time provided in ORS 87.055, and if the person making the demand has complied with this section, ORS 87.078 and 87.081, then the person failing to release and foreclose the lien shall be liable to the person making the demand for the actual costs incurred by the person making the demand in complying with this section, ORS 87.078 and
87.081 or the sum of $500, whichever is greater, in addition to any
other remedy provided by law or equity.
The following are OR statutes:
87.076 Bond or deposit of money; amount; demand for release of
lien; effect.
(1) The owner of an improvement or land against which a lien
perfected under ORS 87.035 is claimed, or any other interested person,
may file with the recording officer of the county in whose office the
claim of lien is filed a bond executed by a corporation authorized to
issue surety bonds in the State of Oregon to the effect that the
principal or principals on the bond shall pay the amount of the claim
and all costs and attorney fees that are awarded against the
improvement or land on account of the lien. The bond shall be in an
amount not less than 150 percent of the amount claimed under the lien,
or in the amount of $1,000, whichever is greater.
(2)
(a) In lieu of the surety bond provided for in subsection (1) of
this section, the owner of an improvement or land against which a lien
perfected under ORS 87.035 is claimed, or any other interested person,
may deposit with the treasurer of the county in which the claim of
lien is filed a sum of money or its equivalent equal in value to 150
percent of the amount claimed under the lien, or in the amount of
$1,000, whichever is greater.
(b) The court in which any proceeding to foreclose the lien may be
brought may, upon notice and upon motion by a person who makes a
deposit under paragraph (a) of this subsection, order the money
invested in such manner as the court may direct. A person who makes a
deposit under paragraph (a) of this subsection shall be entitled to
any income from the investments and the treasurer of the county shall
pay the income when received to the depositor without order.
(3) A bond or money may be filed or deposited under subsection (1) or
(2) of this section at any time after the filing of the claim of lien
under ORS 87.035.
(4)
(a) Any person entitled to post a bond under subsection (1) of this
section or a cash deposit under subsection (2) of this section may
deliver pursuant to ORS 87.018 a written demand that a lien perfected
under ORS 87.035 be released and a notice that if it is not released
the party making the demand may be entitled to recover the actual
costs incurred by the party making the demand in complying with this
section, ORS 87.078 and 87.081 or the sum of $500, whichever is
greater. If the lien is not released within 10 days after delivery of
the demand and notice and the lien claimant or an assignor of the lien
claimant does not bring a suit to foreclose the lien within the time
provided in ORS 87.055, and if the person making the demand has
complied with this section, ORS 87.078 and 87.081, then the person
failing to release and foreclose the lien shall be liable to the
person making the demand for the actual costs incurred by the person
making the demand in complying with this section, ORS 87.078 and
87.081 or the sum of $500, whichever is greater, in addition to any
other remedy provided by law or equity.
(b) In any action to recover damages under this subsection in which
the plaintiff prevails, there shall be allowed to the plaintiff, at
trial and on appeal, a reasonable amount for attorney fees to be fixed
by the court for prosecution of the action, if the court finds that a
written demand for payment of the claim was made on the defendant not
less than 20 days before commencement of the action. However, attorney
fees shall not be allowed to the plaintiff, but shall be allowed to
the defendant, if the court finds that the defendant tendered to the
plaintiff prior to commencement of the action an amount not less than
the damages awarded to the plaintiff.
(c) If a lien claimant or an assignor of the lien claimant is served
with a demand under paragraph (a) of this subsection and is a
prevailing party in the suit to foreclose the lien, then in addition
to such other costs and attorney fees to which the lien claimant or
the assignor of the lien claimant is entitled, the court shall allow
the actual costs incurred in addressing the demand or the sum of $500,
whichever is greater.
87.055 Duration of lien; when suit to enforce lien commences.
No lien created under ORS 87.010 shall bind any improvement for a
longer period than 120 days after the claim of lien is filed unless
suit is brought in a proper court within that time to enforce the
lien, or if extended payment is provided and the terms thereof are
stated in the claim of lien, then 120 days after the expiration of
such extended payment, but no lien shall be continued in force for a
longer time than two years from the time the claim of lien is filed
under ORS 87.035 by any agreement to extend payment. For purposes of
this section:
(1) Subject to subsection (2) of this section, a suit to enforce the
lien shall be deemed commenced as provided in ORS 12.020.
(2) With regard to other parties who are construction lien claimants
under ORS 87.035, a suit to enforce the lien shall be deemed to
commence when the complaint is filed, whether or not summons or
service with regard to such parties is completed within the time
required by ORS 12.020.
87.078 Notice of filing bond or depositing money; contents of
notice; effect of failure to give notice.
(1) A person who files a bond or deposits money under ORS 87.076
shall cause to be served upon the lien claimant a notice of the filing
or deposit and, if a bond, a copy thereof, not later than 20 days
after the filing or deposit. The notice shall state the location and
time of the filing or deposit.
(2) If a person does not notify the lien claimant as required by
subsection (1) of this section, the filing of the bond or the deposit
of money is of no effect and the provisions of ORS 87.083 shall not
apply in a suit to foreclose the lien for which the filing or deposit
is made.
87.081 Filing affidavit with county officer.
(1) When a person files a bond with the recording officer of the
county under ORS 87.076 and serves notice of the filing upon the lien
claimant, the person shall file with the same recording officer an
affidavit stating that such notice was served.
(2) When a person deposits money with the treasurer of a county under
ORS 87.076 and serves notice of the deposit upon the lien claimant,
the person shall file with the recording officer of the same county an
affidavit stating that the deposit was made and notice was served.
87.058 Stay of foreclosure proceedings; requirements; procedure;
duration of stay.
(1) As used in this section:
(a) Notwithstanding ORS 87.005, "contractor" has the meaning given
that term in ORS 701.005.
(b) "Board" means the Construction Contractors Board established in
ORS 701.205.
(2) If a person files a suit to enforce a lien perfected under ORS
87.035 and the owner of the structure subject to that lien files a
complaint that is being processed by the board under ORS 701.145
against a contractor who performed work on the structure, the owner
may obtain a stay of proceedings on the suit to enforce the lien if:
(a) The owner already has paid the contractor for that contractor's
work that is subject to this chapter on the structure;
(b) The person suing to enforce the lien perfected under ORS 87.035:
(A) Performed work that is subject to ORS chapter 701 on the structure
for the contractor who has been paid by the owner;
(B) Furnished labor, services or materials or rented or supplied
equipment used on the structure to the contractor who has been paid by
the owner; or
(C) Otherwise acquired the lien as a result of a contribution toward
completion of the structure for which the contractor has been paid by
the owner; and
(c) The continued existence of the lien on which the suit is pending
is attributable to the failure of the contractor who has been paid by
the owner to pay the person suing for that person's contribution
toward completion of the structure.
(3) The owner may petition for the stay of proceedings described in
subsection (2) of this section by filing the following papers in the
circuit court in which the suit on the lien is pending:
(a) A certified copy of the complaint filed for processing by the
board under ORS 701.145; and
(b) An affidavit signed by the owner that contains:
(A) A description of the structure;
(B) The street address of the structure;
(C) A statement that the structure is the structure upon which the
suit to enforce the lien is pending; and
(D) A statement that the petitioner is the owner of the structure.
(4) Upon receipt of a complete petition described in subsection (3) of
this section, the circuit court shall stay proceedings on the suit to
enforce the lien.
(5) After the board order on the complaint becomes final and the board
issues any required notice for payment against the contractor's bond
or deposit, the circuit court shall dissolve the stay ordered under
subsection (4) of this section.
87.035 Perfecting lien; filing claim of lien; contents of claim.
(1) Every person claiming a lien created under ORS 87.010(1) or
(2) shall perfect the lien not later than 75 days after the person has
ceased to provide labor, rent equipment or furnish materials or 75
days after completion of construction, whichever is earlier. Every
other person claiming a lien created under ORS 87.010 shall perfect
the lien not later than 75 days after the completion of construction.
All liens claimed shall be perfected as provided by subsections (2) to
(4) of this section.
(2) A lien created under ORS 87.010 shall be perfected by filing a
claim of lien with the recording officer of the county or counties in
which the improvement, or some part thereof, is situated.
(3) A claim of lien shall contain:
(a) A true statement of demand, after deducting all just credits and
offsets;
(b) The name of the owner, or reputed owner, if known;
(c) The name of the person by whom the claimant was employed or to
whom the claimant furnished the materials or rented the equipment or
by whom contributions are owed; and
(d) A description of the property to be charged with the lien
sufficient for identification, including the address if known.
(4) The claim of lien shall be verified by the oath of the person
filing or of some other person having knowledge of the facts, subject
to the criminal penalties for false swearing provided under
ORS 162.075.
162.075 False swearing.
(1) A person commits the crime of false swearing if the person makes
a false sworn statement, knowing it to be false.
(2) False swearing is a Class A misdemeanor.
