Using the System to Get Paid Powell Potter PLLC. The information on this page does not constitute...

Using the System to Get PaidUsing the System to Get Paid

Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

Shawn W. Potter, Esq.435-657-0185 Heber435-647-5951 Park Citywww.ppplawyers.com

Six Phases of a ProjectSix Phases of a Project


1) Enthusiasm 2) Disillusionment 3) Panic 4) Search for the Guilty 5) Punishment of the Innocent 6) Praise & Honors for the Non-Participants

How to Get Paid!How to Get Paid! Mechanics Lien Judgment Lien

Small Claims District Court

Residential Lien Recovery Fund Construction Bonds Contracts Promissory Notes & Collateral

(c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

Types of Mechanics LiensTypes of Mechanics Liens

Pre-construction Services Lien

To maintain a preconstruction service lien, a claimant must first file a “notice of retention” with the State Construction Registry within 20 days of commencing preconstruction services.

Construction Services Lien

You must file a preliminary notice with the State Construction Registry within 20 days of commencing its own work on a project.


Construction Services LiensConstruction Services Liens

Notice of Commencement - Only Government jobs require a Notice of Commencement. All other jobs no longer require a Notice of Commencement. A notice of Commencement must be filed within 15 days after work on the job site has begun. If it is not filed on time or accurately, anyone working on the job is not required to file a Preliminary Notice to make a claim on the payment bond.

Preliminary Notice - Original Contractor's are now required to file a Preliminary Notice within 20 days after starting work to maintain their lien rights. The lien priority date for everyone working on the job is now set by the date the first Preliminary Notice is filed and not on the date that actual work began.

Intent to Complete - Original Contractors may file an Intent to Complete at least 45 days before a project is able to be Completed. After an Intent to Complete is filed, anyone who has filed a Preliminary Notice must file a Remaining to Complete stating if they have not been paid or if they owe others. The Intent to Complete only applies to non bonded jobs over $500,000.

Notice of Completion - Original Contractors file a Notice of Completion after the final inspection, certificate of occupancy, or all substantial work is complete. After a Notice of Completion is filed, all remaining Preliminary Notices must be filed within 10 days after the Notice of Completion is filed and the time to file a lien is reduced to 90 days instead of 180 days.


Important DefinitionsImportant Definitions CONTRACTOR - A gambler who never gets to shuffle, cut or deal!

BID OPENING - A poker game in which the losing hand wins.

LOW BIDDER - A contractor who is wondering what he/she has left out.

ENGINEER'S ESTIMATE - The cost of construction in Heaven.

CRITICAL PATH METHOD - A management technique for losing your shirt under perfect control.

OSHA - A protective coating made by half-baking a mixture of fine print, split hairs, red tape and baloney - usually applied at random with a shot gun.

STRIKE - An effort to increase egg production by strangling the chicken.

DELAYED PAYMENT - A tourniquet applied at the pockets.

COMPLETION DATE - The point at which liquidated damages begin.

LIQUIDATED DAMAGES - A penalty for failing to achieve the impossible.


State Construction RegistryState Construction Registry

Indicate the financial advantages for the customer

Compare quality and price with those of the competition


SCR Preliminary NoticeSCR Preliminary Notice


Information for Preliminary Information for Preliminary NoticeNotice

Owner's Name Original Contractor's Name Project Legal Description or Street

Address City, Zip Code & County Property County Tax ID Name & Address of Who You

Contracted With Your Name, Address, Email & Phone(c) Powell Potter PLLC. The information

on this page does not constitute legal advice, and no attorney client relationship is made hereby.

Parcel ID & Legal DescriptionParcel ID & Legal Description

Where to Look County Recorder Website County Recorder Office Title Company Other builders on the site SCR QR Code


What About...What About... I'm doing work in a retail

space for the tenant. I'm working on a federal

government project I'm working on a state

government project I'm doing snow removal

or maintenance.


Do I Have to File With SCR?Do I Have to File With SCR?

No. Only if you might need to record a lien.

Who is your contract with? What is the amount of your contract? Could a mechanics lien help me get

paid? I totally forgot to file with the SCR,

what do I do now to get paid?


Recording a Mechanics LienRecording a Mechanics Lien

Your Work is Lienable. You already properly filed with the SCR. Within 180 days after the date on which

final completion of the original contract occurs, if no notice of completion is filed; or

Within 90 days after the date on which a notice of completion is filed under Section 38-1a-507, but not later than 180 days after the date on which final completion of the original contract occurs.(c) Powell Potter PLLC. The information


Basic Form of Mechanics LienBasic Form of Mechanics Lien

Owner InformationWork CompletedAmount OwedLegal DescriptionStatutory Residence LanguageNotarized


Its Recorded, Now What?Its Recorded, Now What? You Have to File A Lawsuit: Within180 days after the day on which the claimant

files: (i) a notice of preconstruction lien under Section

38-1a-402, for a preconstruction lien; or (ii) a notice of construction lien under Section 38-

1a-502, for a construction lien; or (b) if an owner files for protection under the

bankruptcy laws of the United States before the expiration of the 180-day period under Subsection (2)(a), within 90 days after the automatic stay under the bankruptcy proceeding is lifted or expires.

Lis Pendens(c) Powell Potter PLLC. The information on this page does not constitute legal advice, and no attorney client relationship is made hereby.

Basic LawsuitBasic Lawsuit

Pleadings (Complaint, Answer, Counter)

Discovery (Written & Depositions) Pretrial Motions Trial Post Trial Motions Appeal


Dangers: DeadlinesDangers: DeadlinesMissing a deadline is most likely

fatal to your lien claim. Be aware of the deadlines for

filing a claim with the Residence Lien Recovery Fund.


Dangers: Lien WaiversDangers: Lien Waivers"UTAH CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT

Property Name: _____________________________________________________________

Property Location: ___________________________________________________________

Undersigned's Customer: _____________________________________________________

Invoice/Payment Application Number: __________________________________________

Payment Amount: ___________________________________________________________

Payment Period: ____________________________________________________________

To the extent provided below, this document becomes effective to release and the undersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38, Chapter 1a, Preconstruction and Construction Liens, or any bond right under Utah Code Ann., Title 14, Contractors' Bonds, or Section 63G-6a-1103 related to payment rights the undersigned has on the above described Property once:

(1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and

(2) the check is paid by the depository institution on which it is drawn.

This waiver and release applies to a progress payment for the work, materials, equipment, or a combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer which are the subject of the Invoice or Payment Application, but only to the extent of the Payment Amount. This waiver and release does not apply to any retention withheld; any items, modifications, or changes pending approval; disputed items and claims; or items furnished or invoiced after the Payment Period.

The undersigned warrants that the undersigned either has already paid or will use the money the undersigned receives from this progress payment promptly to pay in full all the undersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or combination of work, materials, and equipment that are the subject of this waiver and release.

Dated: ________________________

___________________________________________________________(Company Name)

_____________________________________________________By:__________________

_____________________________________________________Its:__________________"


Lien WaiversLien WaiversUTAH WAIVER AND RELEASE UPON FINAL PAYMENT

Property Name: ____________________________________________________________

Property Location: __________________________________________________________

Undersigned's Customer: _____________________________________________________

Invoice/Payment Application Number: __________________________________________

Payment Amount: ___________________________________________________________

To the extent provided below, this document becomes effective to release and the undersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38, Chapter 1a, Preconstruction and Construction Liens, or any bond right under Utah Code Ann., Title 14, Contractors' Bonds, or Section 63G-6a-1103 related to payment rights the undersigned has on the above described Property once:

(1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and

(2) the check is paid by the depository institution on which it is drawn.

This waiver and release applies to the final payment for the work, materials, equipment, or combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer.

The undersigned warrants that the undersigned either has already paid or will use the money the undersigned receives from the final payment promptly to pay in full all the undersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or combination of work, materials, and equipment that are the subject of this waiver and release.

Dated: ________________________

___________________________________________________________(Company Name)

_____________________________________________________By:__________________

_____________________________________________________Its:__________________


Going to CourtGoing to Court District Court

File Complaint Serve

Complaint Discovery Pretrial Motions Trial Obtain

Judgment Collect or

Record Judgment Lien

Small ClaimsFile ComplaintServe ComplaintSet Trial DateTrialObtain JudgmentCollect or Record

Judgment Lien

-cannot foreclose a lien in small claims!


District Court vs Small District Court vs Small ClaimsClaims Entity Must Have

Lawyer No Claim Limit Will Take At Least a

Year to Trial Always

Professional Judges Up to 60 days after

trial for a judgment

Owner Can Represent Entity

$10,000.00 Claim Cap

Usually 90 days or so to Trial

Sometimes Professional Judges, sometimes volunteers

Judgment usually same day as trial


I Won at Trial, Now What?I Won at Trial, Now What?

District Court Potential for

Appeal to Supreme Court & Remand

Judgment Lien Garnishment Execution Sale Supplemental

Proceedings

Small Claims CourtPotential for

Appeal to District Court

Judgment LienGarnishmentExecution SaleSupplemental

Proceedings


Residential Lien Recovery Residential Lien Recovery FundFund

To Collect from the LRF you must: Be registered with the LRF. Timely file a civil action against the

nonpaying party and the homeowner. Provide the homeowner with the required

the application for a Certificate of Compliance.

Obtain judgment against the nonpaying party.

Attempt to collect on the judgment. Complete and submit the claim application.


Mechanics Lien vs. Judgment Mechanics Lien vs. Judgment LienLien

Can Only Foreclose Property Where You Worked

Can Foreclose Any of Debtor's Property


Construction BondsConstruction Bonds

Failure to Obtain a Bond – Commercial Projects

Payment Bond Claims


Failure to Obtain a Payment Failure to Obtain a Payment BondBond 14-2-2. Failure of owner to obtain payment bond --

Liability. (1) An owner who fails to obtain a payment bond

required under Section 14-2-1 is liable to each person who performed labor or service or supplied equipment or materials under the commercial contract for the reasonable value of the labor or service performed or the equipment or materials furnished up to but not exceeding the commercial contract price.

(2) An action to recover on the liability described in Subsection (1) may not be commenced later than one year after the day on which:

(a) the last of the labor or service was performed; or

(b) the equipment or material was supplied by the person.

(3) In an action for failure to obtain a bond, the court shall award reasonable attorney fees to the prevailing party. These attorney fees shall be taxed as costs in the action. (c) Powell Potter PLLC. The information


Failure to Obtain a Payment Failure to Obtain a Payment BondBond (d) (i) "Residential construction" means the

construction, alteration, or repair of: (A) single family detached housing;

or (B) multifamily attached housing up

to and including a fourplex. (ii) "Residential construction"

includes rental housing. (2) Before any original commercial

contract exceeding $50,000 in amount for the construction, alteration, or repair of any building, structure, or improvement upon land is awarded to any contractor, the owner shall obtain from the contractor a payment bond: (c) Powell Potter PLLC. The information


Other Potential Methods of Other Potential Methods of CollectionCollection

UCC for Certain Materials Suppliers Execute a Promissory Note for

Payment Over Time


UCCUCC


Securing Debts under the Securing Debts under the UCCUCC

Have a written agreement for payment or a note identifying collateral.

File the UCC-1 Financing Statement. If you're not paid as agreed, repossess

the collateral and sell it to pay the debt.

File Suit for collection of the Note, not a construction dispute.


Contract Clauses for Contract Clauses for PaymentPayment

AIA Consensus Notice & Remedy Requirement Changes


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