The Lawsuit
A lien claimant has 180 from the date on which the Notice of Lien was filed to commence a lien foreclosure action. This fairly recent change was made by the Utah Legislature in 2004. The time periods for both residential and non-residential construction are now the same.
Utah Code section 38-1-11 now states that:
(1) A lien claimant shall file an action to enforce the lien filed under this chapter within 180 days from the day on which the lien claimant filed a notice of claim under Section 38-1-7. Utah Code Ann. § 38-1-11 (Lexis 2005).
In addition to making the time periods the same for both residential and non-residential construction, the 2004 amendment changed the point from which the foreclosure time period is calculated. The new provision calculates the foreclosure time period from the filing of the claimant’s notice of lien. Thus, if a lien claimant were to wait the full 90 days to file a notice of lien (assuming that a notice of completion was filed pursuant to Utah Code section 38-1-33), and the lien claimant waited the full 180 days to file a foreclosure action, the lien claimant could file a valid foreclosure 270 days after final completion of the original contract under which the lien claimant performed the work. Additionally, if the lien claimant were to wait 180 days (assuming that a notice of completion was not filed pursuant to Utah Code section 38-1-33), the lien claimant could file a valid foreclosure action 360 days after final completion of the original contract under which the lien claimant performed the work.
The “action to enforce the lien” referred to in Utah Code section 38-1-11 is a legal action in which an attorney files a lawsuit to foreclose the mechanic’s lien. This is done by filing a complaint with the appropriate court and serving the complaint along with a summons upon the person being sued. In Utah the appropriate court would be a state district court which has jurisdiction over the case (usually the one for the county in which the property is located) or the Federal District Court for the District of Utah if at least one of the parties is from a state other than Utah or a foreign country and the amount in controversy is more than $75,000.
A Utah court will dismiss any foreclosure action commenced outside of the 180 day period because of lack of jurisdiction. Therefore, it is still crucial to the success of any lien claim that the foreclosure action be commenced in a timely manner.
Utah Code section 38-1-11 now states that:
(1) A lien claimant shall file an action to enforce the lien filed under this chapter within 180 days from the day on which the lien claimant filed a notice of claim under Section 38-1-7. Utah Code Ann. § 38-1-11 (Lexis 2005).
In addition to making the time periods the same for both residential and non-residential construction, the 2004 amendment changed the point from which the foreclosure time period is calculated. The new provision calculates the foreclosure time period from the filing of the claimant’s notice of lien. Thus, if a lien claimant were to wait the full 90 days to file a notice of lien (assuming that a notice of completion was filed pursuant to Utah Code section 38-1-33), and the lien claimant waited the full 180 days to file a foreclosure action, the lien claimant could file a valid foreclosure 270 days after final completion of the original contract under which the lien claimant performed the work. Additionally, if the lien claimant were to wait 180 days (assuming that a notice of completion was not filed pursuant to Utah Code section 38-1-33), the lien claimant could file a valid foreclosure action 360 days after final completion of the original contract under which the lien claimant performed the work.
The “action to enforce the lien” referred to in Utah Code section 38-1-11 is a legal action in which an attorney files a lawsuit to foreclose the mechanic’s lien. This is done by filing a complaint with the appropriate court and serving the complaint along with a summons upon the person being sued. In Utah the appropriate court would be a state district court which has jurisdiction over the case (usually the one for the county in which the property is located) or the Federal District Court for the District of Utah if at least one of the parties is from a state other than Utah or a foreign country and the amount in controversy is more than $75,000.
A Utah court will dismiss any foreclosure action commenced outside of the 180 day period because of lack of jurisdiction. Therefore, it is still crucial to the success of any lien claim that the foreclosure action be commenced in a timely manner.
posted by Randy B. Birch @ 5:15 PM
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