Notice to Commence & Summons and Complaints to Foreclose

You’ve filed a mechanic’s lien on a project and you are waiting to see whether it prompts payment. You’ve checked The National Lien Digest, and you know the deadline by which you must file suit. Then, you receive an official looking document that gives a different deadline! 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. At their first glance at the Summons and Complaint, the unwary may believe that they are being sued. Instead the Summons and Complaint requires that all lien claimants join in the foreclosure action with an Answer and a Cross Claim within a preset period of time. 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 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.

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