Lien was filed and served regular mail. Affirmation of service was timely served. Then, I followed with RRR service, but didn't file an affirmation on that service. And it was a few days late. Are there any defenses that can save my lien? Does the owner have to bring an action to discharge the lien? And then can I defend this? I know it sounds like a total nightmare. Thank you for helping me.
If you are still within the window for filing a mechanic's lien, file a new one (and serve it properly), and then file a discharge for the old one. If not, then the lien will be considered defective.
There is no laches defense, and the lien is extendable up to 5 years. (As a practical matter, it takes years of inaction before a court will determine that you sat on your rights for too long; besides, extending the lien demonstrates that you are still protecting your rights.)
Yes, even if you are successful in demanding a foreclosure and getting the lien discharged when one is not initiated, the contract claim remains.
Keep in mind that a mechanic's lien is a derivative remedy, derivative of what is owed to the general contractor, that permits people who have no agreement with the owner to sue against the owner's asset (the property) . As a matter of public policy, the legislature balanced the interest of the contractor to secure its payment against the interest of the landowner to be able to compel a quicker resolution to matters, and not have a mechanic's lien sit on his or her property until the contractor deemed it fit to foreclose.