Notice to Commence Suit and Summons & ComplaintNCS Credit - June 02, 2014
Congratulations! You have taken the proper steps to secure your receivables through the mechanic’s lien process. You’ve checked The National Lien Digest© to confirm you completed the necessary steps within the state specific time frame. You properly served your preliminary notice and unfortunately had to proceed with the mechanic’s lien, because you weren’t paid.
While you wait for the mechanic’s lien to prompt payment, you recheck The National Lien Digest, just one more time, to confirm what the deadline is for proceeding with Suit to Enforce the Mechanic’s Lien.
Then… you receive an official document which indicates the deadline to proceed with Suit is different than the deadline you see in The National Lien Digest!
What is going on?!
In many states, the statute provides a remedy for an owner to shorten the deadline for a lien claimant to file suit: the owner can file a Notice to Commence Suit. When properly notified by an owner or the court, any lien claimant who receives a Notice to Commence Suit must proceed with suit by the deadline stated, or they will lose their lien rights. This process allows the owner to “thin out” those who may not have a valid claim.
Another action that can change your suit deadline is when another claimant files suit to foreclose on the property. When filing suit, the plaintiff must notify all other parties with an interest in the property that an action to foreclose is being filed. This filed document is often referred to as a Summons and Complaint.
At first glance, the Summons and Complaint may cause the unwary to believe they are being sued. In actuality, the Summons and Complaint is a legal action which requires all lien claimants to join in the foreclosure action within a specific time frame, by submitting an Answer and Cross Claim.
Frequently an Answer and Cross Claim is required in as little as 20 days from receipt of the Summons and Complaint. If a lien claimant does not respond by the deadline, lien rights may be lost.
When a Notice to Commence Suit or a Summons and Complaint is received by your office, in response to a lien that was filed on your behalf, we recommend taking immediate steps to retain the services of an attorney to protect your rights.