Just Because You Record a Mechanic’s Lien Doesn’t Mean You Get Notice of Foreclosure
September 15, 2016 —
Christopher G. Hill – Construction Law MusingsAs longtime (or new readers for that matter) know, mechanic’s liens are near and dear to my heart here at Construction Law Musings. These powerful tools to collect for your hard work on a construction project are great when prepared and recorded in the very specific fashion required by the Virginia legislature and courts. In most situations, if done properly, a mechanic’s lien gives you some security and priority for your construction claim that you would not have with a simple judgment lien.
Despite the power of a properly perfected and enforced mechanic’s lien (and the fact that the end result of a full mechanic’s lien suit that remains unsettled is in fact a foreclosure), a recent case in the Eastern District of Virginia, Weinberg v. J.P. Morgan Chase, et. al., (thanks for the head’s up on this case to the folks at the Construction Payment Blog) held that under Virginia statute mechanic’s lien holders are not entitled to notice of foreclosure. In the Weinberg case, the plaintiff, a pro se lien claimant that recorded two different liens, one pre-foreclosure and one post-foreclosure, and who had not received notice of the intervening foreclosure, argued, among other things, that he should have been given notice of the foreclosure on the deed of trust on the property by J. P. Morgan Chase.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Mississippi Floods Prompt New Look at Controversial Dam Project
March 16, 2020 —
Autumn Cafiero Giusti - Engineering News-RecordFlooding from the Pearl River in Mississippi has created a renewed sense of urgency for regional flood prevention efforts, with officials set to decide in six months whether to approve a controversial flood control plan, says an attorney for the region’s flood control district.
Autumn Cafiero Giusti, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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U.K. Construction Growth Unexpectedly Accelerated in January
February 05, 2015 —
Tom Beardsworth – Bloomberg(Bloomberg) -- U.K. construction growth unexpectedly accelerated last month as housing strengthened and civil engineering bounced back from a contraction.
Markit Economics said its Purchasing Managers’ Index rose to 59.1 from 57.6 in December. A reading above 50 indicates expansion. Economists forecast the gauge would fall to 57, according to the median estimate in a Bloomberg News survey.
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Tom Beardsworth, BloombergMr. Beardsworth may be contacted at
tbeardsworth@bloomberg.net
No Coverage For Wind And Flood Damage Suffered From Superstorm Sandy
July 27, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe court found that the policy's anti-sequential clause barred coverage for damage caused by Hurricane Sandy. Estate of Doerfler v. Fed. Ins. Co., 2020 N.J. Sup. Unpub. LEXIS 920 (May 14, 2020).
The insureds held identical homeowners policies from Chubb and Federal Insurance Company. Damage resulting from flood was not covered. The policies' "surface water exclusion" stated,
[W]e do not cover any loss caused by: flood, surface water, waves, tidal water, overflow of water from a body of water . . . or spray from any of these even if driven by wind.
The insureds also had separate flood insurance policies, insuring the structure of each home for $250,000.
Superstorm Sandy created wind gusts as high as eighty miles per hour. A severe storm surge caused tides to rise between nine and eleven feet. The storm surge caused surface water to flood onto plaintiffs' properties and their homes ultimately collapsed.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Heavy Rains Cause Flooding, Mudslides in Japan
July 31, 2023 —
Associated Press - BloombergTOKYO (AP) — Torrential rain pounded southwestern Japan, triggering floods and mudslides and leaving two people dead and at least six others missing, officials said Monday.
Rain falling in the regions of Kyushu and Chugoku since the weekend caused flooding along many rivers, triggered mudslides, closed roads, disrupted trains and cut the water supply in some areas.
The Japan Meteorological Agency issued an emergency heavy rain warning for Fukuoka and Oita prefectures on the southern main island of Kyushu, urging residents in riverside and hillside areas to take maximum caution. More than 1.7 million residents in vulnerable areas were urged to take shelter. The emergency warning was downgraded later Monday to a regular warning.
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Bloomberg
Real Property Alert: Recording Notice of Default as Trustee Before Being Formally Made the Trustee Does Not Make Foreclosure Sale Void
February 18, 2015 —
Krsto Mijanovic and Annette F. Mijanovic – Haight Brown & Bonesteel LLPIn Ram, et al. v. OneWest Bank, FSB, et al. (filed 2/6/15, No. A139055), the California Court of Appeal held that a nonjudicial foreclosure sale is not void merely because the notice of default was recorded by an entity who had not yet been substituted as trustee. The court also held that because the sale was voidable, rather than void, the plaintiffs were required to allege an ability and willingness to tender their debt in addition to alleging that they were prejudiced by the irregularity in the foreclosure process.
Plaintiffs were borrowers who purchased a home subject to a deed of trust. After they defaulted on their loan, nonjudicial foreclosure proceedings were initiated, and the beneficiary of the deed of trust, OneWest Bank, FSB ("OneWest"), purchased the property at the foreclosure sale. Plaintiffs sued OneWest and other entities for wrongful foreclosure, alleging that the sale was void because the entity identified as the trustee on the notice of default, Aztec Foreclosure Corporation ("Aztec"), had not been formally substituted as trustee until after the notice of default was recorded. The trial court sustained OneWest's demurrer and plaintiff appealed.
Reprinted courtesy of
Krsto Mijanovic, Haight Brown & Bonesteel LLP and
Annette F. Mijanovic, Haight Brown & Bonesteel LLP
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Ms. Mijanovic may be contacted at amijanovic@hbblaw.com
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Nerves of Steel Needed as Firms Face Volatile Prices, Broken Contracts and Price-Gouging
December 06, 2021 —
Richard Korman, Jonathan Barnes, & Greg Aragon - Engineering News-RecordWhen Elmhurst Group, a Pittsburgh-area developer, started collecting bids for a new mixed-use building last November, the price of the steel frame, roof and cladding panels for the $14-million project came in $382,000 higher than expected—a big enough disappointment to give Elmhurst pause. Overall material costs for the project were running more than $650,000 above what was originally calculated.
Reprinted courtesy of
Richard Korman, Engineering News-Record,
Jonathan Barnes, Engineering News-Record and
Greg Aragon, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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You Are on Notice: Failure to Comply With Contractual Notice Provisions Can Be Fatal to Your Claim
September 26, 2022 —
Jenifer B. Minsky - ConsensusDocsImagine your firm is the construction manager on a multi-million-dollar project. At the end of the project you are five million dollars out-of-pocket. You have a stack of claims for additional and extended work which led to the overrun, payment for which will easily cover the shortfall. However, the owner refuses to compensate you until you can satisfactorily answer their inquiry: “Where are the notices that are expressly required under the terms of the contract?” You had a good relationship with the owner’s field representative who was aware you were performing the work and understood that your company was compiling claims. The once cooperative owner, now suffering financial restraints of their own, is resolute in their refusal leaving you no choice but to expend substantial sums of money to litigate the claims, the success of which is far from assured.
What Contract Language Can Be A Trap For An Unwary Contractor?
While courts are generally hesitant to order a forfeiture and some courts disfavor condition precedents, a judge’s hands may be tied by particular contract language requiring the strict enforcement of notice requirements. Such provisions may include: (1) an explicit clause that there be precise compliance with notice requirements; (2) express consequences for noncompliance (e.g., if the required notice is not provided the claim will be waived, forfeited or abandoned); (3) a statement that the notice requirements are a condition precedent to recovery; (4) language such as “if,” “provided that,” “or else” or “on condition that” (e.g., the owner shall review the claim, “provided such claim” was received within the applicable notice period) or (5) prohibition of any waiver of the notice requirement. To the extent the notice provision includes such language, a contractor can be without recourse even when the owner has actual knowledge of the claims or cannot show prejudice by the lack of notice.
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Jenifer B. Minsky, Peckar & Abramson, P.C.Ms. Minsky may be contacted at
jminsky@pecklaw.com