The subcontractor filed a lawsuit to foreclose on a lien and doesn't actually try to serve the papers to any of the parties for several months, can they still pursue their foreclosure rights on the property?
I am a home owner, I paid the contractor, the contractor didn't pay the sub. The sub is suing the contractor, and seeking to foreclose on the property to repay debt.
Work was finished in Jan 09, lien filed in 2/09, lawsuit filed in 10/09 and papers were mailed to me on 2/1/10. The papers have not been served to me yet.
The debt may still be valid and they are suing the contractor for this debt. I just want to know if my property is still in jeopardy since they didnt really pursue a lawsuit, rather they filed it as a place holder for the lien.
DUI / DWI Attorney
A contractor’s lien rights are provided pursuant to RCW 60.04 et seq. Lien rights require various notices and statutory timelines to be secured. If the subcontractor did not follow the proper steps, their lien may be invalid or even frivolous against your property.
For instance, a contractor only has 90 days from the last day or work or materials supplied to claim a lien (have it recorded with county auditor). From that date, the contractor only has eight months to bring a foreclosure action (file a lawsuit). If a foreclosure action was filed, the contractor must also serve the owner within 90 days (service of process).
If these steps were not followed, it is not automatic that the lien disappears or the lawsuit goes away. You should consider consulting or hiring an attorney to looking into this for you.
As Mr. Foster states, a lien foreclosure action must be served on the owner within 90 days. RCW 60.04.141. Based on your timeline, it is possible that the sub is utilizing the court rule allowing service by mail. CR 4(d)(4). You should check the case docket to see if a motion was filed and an order entered allowing service by mail, and if so carefully check the papers you received to be sure they comply with the requirements of the court rule. A link to CR 4 is provided below. If service was not properly made within 90 days of filing suit, you would have grounds to ask the court to remove the lien from your property. Good luck!
Casey, you may still want to review the paperwork to see if the publication was done correctly. They are supposed to make a diligent effort to locate and serve you before resorting to publication; if they didn't do so, you could request that the service be nullified and the case dismissed.