Wednesday, August 24, 2011

New Wyoming Lien Law

Change in Wyoming lien law – Have you filed your pre-lien notice?
A number of our clients have done work or will soon be doing work or supplying goods and services for projects located in Wyoming.  Unlike Colorado, Wyoming is a pre-lien state and thus a supplier of goods and services must provide a notice to the owner and general contractor within thirty (30) days of FIRST supplying to the project.  Although the pre-lien notice has been a requirement under Wyoming lien law for quite some time, there have been a few loopholes in the statute that would allow a lien claimant to pursue their lien even if the pre-lien notice was not done.   However, the Wyoming statutes changed as of July 1, 2011 doing away with the loopholes.  Thus,  a pre-lien notice is a mandatory requirement to filing a lien in Wyoming and failure to timely do so will bar the claimant from filing a lien.  Wyoming requires that a pre-lien notice be filed even on public projects.
There have also been a number of other changes to the mechanic’s lien law. Among them is extending the time for filing a lien claim.  The old statute required that a lien claim be filed by the general contractor within 120 days of his last work and within 90 days of last work for subcontractors and suppliers.  The statutory changes have lengthened these time periods to 150 days for general contractors and 120 days for subcontractors and suppliers.  Again it is important to remember that without the pre-lien notice a claimant will not be able to file a lien at all.
There are other changes that have occurred in the statute which effect mechanic’s liens claims as well as oil and gas claims and public projects.  I have only touched on two of those changes in this blog.  If your company is doing business or planning on doing business in Wyoming it is best that you know the requirements for protecting your lien rights.  Feel free to contact our office with questions regarding the statutory requirements or any other issues you may have doing business in Wyoming.

Sources:
TITLE 29 Wyoming Statutes
Section 29-2-106 When statement of lien to be filed.
Section 29-2-112 Preliminary Notices

Friday, August 19, 2011

How to get your property back from a debtor who is not paying you.

SELF-HELP REPOSSESSION
A creditor can only use self-help repossession if it has a security interest (UCC filing or a title)  in personal property.   If a creditor has a perfected (it has been filed with the Secretary of State) security interest, it is entitled to use self-help under the UCC.  Section 4-9-609 C.R.S. allows a secured party to take possession of the personal property (collateral), without an order from the court, if the creditor can do so without breaching the peace.  If the collateral is behind a locked door or gate, then repossession would breach the peace.  If the collateral is unreachable or the location is unknown, a creditor can file a replevin action under Rule 104, C.R.C.P.   Rule 104 requires the following to be filed with the Court:

1.         A verified complaint alleging that the Plaintiff is the owner of the property or is entitled to possession, attaching a copy of the document entitling the Plaintiff to possession;
2.         An allegation that the property is being detained by the defendant against the Plaintiff’s right to possession thereof and the specific facts constituting detention against the right of the Plaintiff to possession;  
3.         A particular description of the property, a statement of its actual value, a statement of the location of the property, and;
4.         a statement that the property has not been taken for a tax assessment, or fine; or seized under an execution against the property of the Plaintiff.

The Court reviews the Verified Complaint and issues a show cause order directed at the Defendant to show cause why the property should not be taken from the Defendant and delivered to the Plaintiff.  The hearing shall be not more than 10 days from the date of the issuance of the order and the order must be served on the Defendant at least 5 days prior to the hearing date.  The Plaintiff may request a hearing date longer than 10 days, which waives the right to a hearing not more than 10 days after the date of the order. This hearing takes precedence over all civil actions, except other cases to which special precedence is given by law.  If the Defendant fails to appear for the Show Cause hearing, then the Court will issue an order granting possession of the property to the Plaintiff.

The Court can grant an Order for Possession prior to the hearing, if:
a)                  the defendant gained possession of the property by theft;
b)                  the property consists of negotiable instruments or credit cards;
c)                  the property is perishable or the defendant may destroy, dismantle, remove parts from or in any way substantially change the character of the property; or will conceal or remove the property from the jurisdiction of the court; or
d)                  the defendant, by contract, voluntarily, intelligently, and knowingly waived his right to a hearing prior to losing possession of the property.

The Court can require a bond, in its discretion, not to exceed double the value of the property. The Court can also order the Defendant to preserve the property.

The order for possession will describe the specific property and specify the probable location or locations where the property can be found. The sheriff is directed to take the property and retain it in his custody.  The sheriff can deliver the property to the Plaintiff, after receiving his fees.  The sheriff can also cause a building or enclosure to be broken into, if necessary. The Sheriff generally will require a Writ of Assistance for this. The Sheriff then serves a copy of the order for possession upon the Defendant.

Submitted by Terry Ehrlich, Esq.