Home>Levelset Community>Legal Help>Since we already filed a mechanics lien, can we file a notice to forclosure lien document without having sent the notice to lien document that was required within 15 days of commencement?

Since we already filed a mechanics lien, can we file a notice to forclosure lien document without having sent the notice to lien document that was required within 15 days of commencement?

We are a general contractors that perform commercial and residential renovations. However, our client has refused to pay the final balance that is now past due for the services that we already completed for her home. We then filed a mechanics lien on the property. We are now ready to file a notice to foreclosure lien document since we still haven't received payment. However, we were just informed that a notice to lien document was required first in NC. Should we still proceed with filing the notice to forclosure lien document?

2 replies

Jun 23, 2020

North Carolina GC's must send a Notice to Lien Agent within 15 days of first furnishing labor or materials to the project. This notice is only required when a lien agent has actually been identified by the owner on the job - and lien agents are only required for (1) owner-occupied, single-family residential projects; or (2) other projects exceeding $30,000. Regardless - if there's no lien agent on the job, then no Notice to Lien Agent will be required. If there was a lien agent identified on your project, and if that notice wasn't actually sent, then any subsequent liens could be invalid and unenforceable. Meaning, if a Notice to Lien Agent was required but not sent, filing a lien enforcement (also called a "lien foreclosure") lawsuit might not be a great option since the lien enforcement might be tossed out due to a failure to send the required notice. Still, if the lien enforcement claim is brought along with other legal claims - like breach of contract or under the NC prompt payment laws - it might be worth throwing that claim in there too. Note that the next immediate step after filing a lien isn't always to file an enforcement suit. Rather, taking some additional measures can lead to payment, as discussed here: The 4 Steps to Take After Filing a Mechanics Lien. As mentioned in that article, threatening to foreclose on the lien - with a Notice of Intent to Foreclose - can be useful before actually filing that lien enforcement suit. In any event - before deciding on whether to file a lawsuit, it'd be wise to consult with your lawyer. After all, you'll need one to enforce the lien anyway. For help finding the right construction lawyer: Find a North Carolina Construction Lawyer.

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Jun 23, 2020

Thanks for the helpful and needed response. This definitely provides clarity.

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