Our builder is threatening a lien and foreclosure on our new construction.

The contractor has a strict timeline for a lien and you have a timeline for a claim on the contractor's bond. I would redeliver the punchlist with a signature required. If he fails to respond, the bonding company should be notified, and I would encourage mediation before, filing suit. In fact, most counties require a settlement conference prior to trial you may as well get that process going now. Mediation is where you and he are in separate rooms and the mediator works with both of you to narrow the issues and hopefully settle the issues with the punchlist and the retention.
The Contract for Construction of the structure should dictate who pays for the mediation. If the contractor refuses to work with you a breach of contract claim should be used if the retention will not cover the punchlist.
Good Luck

You can also file a complaint with the State. See weblink below. It is contractor complaint form F625-033-000

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

Among other requirements, to properly file and foreclose on a construction lien the contractor must (1) give you a sufficient and timely disclosure statement, and (2) must have filed the lien within 90 days of the last day the contractor worked on the project. Otherwise, the lien may be filed, but is likely defective and cannot be foreclosed upon.

When a contractor works for someone other than the property owner, a timely "pre-claim notice of lien" is required. Both the disclosure statement and the pre-claim notice of lien must follow a detailed format, and examples can be viewed on the Washington State Labor & Industries website. If a lien is improperly filed on your property, you have the right to move the Court to vacate the lien as improper or frivolous, and you can often be awarded your fees and costs in the process of defending against the lien.

If the Contractor has not addressed your punch list items, send a final demand requesting a meeting and requesting that the work be done immediately, and then allow a reasonable time for response (5-10 business days). If you do not receive a response, you almost certainly have the right to have the punch list items finished by another reasonably qualified and priced contractor, and then deduct that amount from the amount you owe the first contractor.

As you can see, it is in your contractor's best interests to communicate with you to resolve these issues, otherwise they risk not receiving their final payments at all.

Good luck. Mark Arend