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HomeMy WebLinkAbout888203BO~ . RECEIVED LINCOLN CouNT¥ CLERK IN TIlE COUNTI/ CLERK'S OFFICE IN AND FOR LINCOLN COLIN,T,Y .'3., 0 NOTICE OF LAPSE OF LIEN STATE OF WYOMING ) COUNTY OF TETON ) TO: LINCOLN COUNTY CLERK ROB AND BARB WIEBELL, by and through their undersigned attorney, James K. LubMg, hereby give notice that, pursuant to Wyoming Statute §29-2- 109, the Lien Statement filed on behalf of CARMEAN CONSTRUCTION against the following described property has lapsed pursuant to § 29-2-109, a copy of which is attached hereto, and which only allows for the existence of a lien for 180 days after the lien is filed, unless an action to foreclose the lien is instituted. Undersigned counsel on behalf of ROB & BARB WIEBELL advise that no action to foreclose said lien has been filed, and therefore pursuant to §29-2-109 the lien no longer exists. The legal description of the property is as follows: Plat 2, Lot 26, of the Star Valley Ranch, Lincoln County, Wyoming. The Lien was filed on June 19, 2002 at Book 492 Pr. Page 292. DATED this 5th day of March, 2003. [~19I_ ES K. LUB1T/4G LAW OFFICE PO Box 3894 t Jackson, WY 83001-3894 (307) 733-7242 VERIFICATION 288 STATE OF WYOMING ) COUNTY OF TETON ) James K. Lubing being first duly sworn upon his oath, that he has read the foregoing, knows the contents hereof, and that the same is true to the best of his knowledge. SUBSCRIBED AND SWORN t ,2003, by James K. Lubing. County of ,~'~ State of t Teton ~}~ Wyoming ~ b~_Y_C_o~mpq!s sion ~z_xpires 7-17-2~_ _-- ~ Notary Public My Commission Expires: 7/17/2004 774 ) days notice to the ~nt or for materials ~, ch. 81, § 18; R.S. 331, § 66-521; C.S. ss., ch. 17, § 2.) ry. -- Subcontractor' ~chanic's lien against td wife by entirety ts after filing of lien named and wife was dt until over 3 years rs v. Dona, 49 Wyo. Mt. Constr. Co., 609 ,umber Co., 52 Wyo. · Hi-Plains Elevator 978); Foster Lumber · 1982). r.S. references. -- ement of mechanic's :k, 27 ALR2d 1169. ;atement of mechan- ,n or location of real ting time for filing c's lien as against t63. of mechanic's lien ith general contrac- ~h owneL 78 ALR2d ncr in notice, claim 8 ALR3d 153. r of contract as af- .' liens or time for 797. ~tate on mechanic's )lied to vendor but 1017. based on adjoining ~ment, or repair of bridge, 22 ALR5th :tor to owner. ors hired by the ~ct in accordance or his agent may nent is rendered y amount due to 'ontractor in full -~ contractor was S. 1910, § 3816; ~-17; W.S. 1977, breclosure action, ~ be considered an dy, or specific real CONTRACTORS or personal property," within the meaning of Rule 38 (a), W.R.C.P. An action for foreclosure of a mechanic's lien is an equitable proceeding and, as contemplated by Rule 38 (a), W.R.C.P., should be triable by the court without a jury. It is principally au action to bind the property of the owner whose premises have been improved by the labor or materials furnished by the lien claimant for that purpose. True v. Hi-Plains Elevator Mach., Inc., 577 P. 2d 991 (Wyo. 1978). Owner's right to have contractor made party. -- The provisions of this section were evidently incor- porated for the owner's protection, and to accomplish the full purpose thereof, the owner has a clear right to insist that the contractor be made a party, if possible, so that he may be bound by the judgment. While no personal judgment can be rendered against the con- tractor in such a suit unless there has been service of summons upon him within the state, he may never- theless, ifa nonresident of the state, be brought in as a party, for the statutes provided for constructive OR MATERIALMEN ,'~ § 29-2-109 89 service in such a case pursuant to ~ 29-2-116. True v. Hi-Plains Elevator Mach., Inc., 577 F2d 991 (Wyo. 1978). Time for foreclosing mechanic's llen against owner not stayed by contractor's bankruptcy. -- A contractor is not an indispensable party to a lien foreclosure unless the owner of the property subject to hen wants him joined. Since the employees of a contractor who filed for bankruptcy untimely filed their suit for foreclosure of a mechanic's lien, and since the contractor was not an indispensable party, the automatic stay granted the contractor by federal law did not stay foreclosure against the owner under either state or federal law, and the employees had no hen at the time of filing their action. Hamel v. Amer- ican Continental Corp., 713 t~2d 1152 (Wyo. 1986). Cited in American Sur. Co. v. Broadway Imp. & Inv. Co., 39 Wyo. 195, 271 P. 19 (1928); Tottenhoffv. Rocky Mt. Constr. Co., 609 P.2d 464 (Wyo. 1980). § 29-2-109. Limitation of actions; duration of liens. All actions to foreclose or enforce a lien under this chapter shall be commenced within one hundred eighty (180) days after the filing of the lien statement. No lien shall continue to exist except by virtue of the provisions of this chapter for more than one hundred eighty (180) days after the lien is filed unless an action to foreclose the lien is instituted. (Laws 1877, p. 80, § 15; 1886, ch. 25, § 3; R.S. 1887, § 1531; R.S. 1899, § 2902; C.S. 1910, § 3812; C.S. 1920, § 4876; R.S. 1931, § 66-518; C.S. 1945, § 55-216; W.S. 1957, § 29-25; W.S. 1977, § 29-2-123; Laws 1981, Sp. Sess., ch, 17, § 2.) Cross references. -- For other important time periods under this title, see also 8§ 29-2-106, 29-3- 109, 29-5-103, and 29-5-105. Superlntendent's lien for services. -- Superin- tendent and engineer in charge of construction of plant who also performed work and labor was entitled to lien for his salary. Continental & Com. Trust Say. Bank v. North Platte Valley Irrigation Co., 219 F. 438 (Sth Cir. 1915), rev'd on other grounds, 237 F. 188 (Sth Cir. 1916). Timely filing of lien statement. -- Where last materials for job were delivered June 15, 1912, though not actually used, and accounts were kept open con- tinuously until that date, lien statement was properly filed within 90 days from that time. Continental & Com. Trust &Sav. Bank v. North Platte Valley Irriga- tion Co., 219 F. 438 (8th Cir. 1915), rev'd on other grounds, 237 F. 188 (8th Cir. 1916). Lapse of lien. -- Unless suit to foreclose mechan- ic's lien is instituted within 6 months against owner of the premises, the lien lapses and the court is without jurisdiction to proceed with the foreclosure. Peters v. Dona, 49 Wyo. 306, 54 P. 2d 817 (1936). Indispensible party's bankruptcy tolls lien foreelosurer. -- where a corporate debtor-land- owner was an indispensable party to a foreclosure action against nondebtor mortgage holders, an archi- feet's amended petition to foreclose his lien was sub- ject to the automatic stay of the federal Bankruptcy Code, and this section was tolled during the pendency of the debtor's bankruptcy proceedings. Diamond Hill Inv. Co. v. Shelden, 767 P. 2d 1005 (Wyo. 1989). Time for foreclosing mechanic's lien against owner not stayed by contractor's bankruptcy. -- A contractor is not an indispensable party to a lien foreclosure unless the owner of the property subject to lien wants him joined. Since the employees of a contractor who filed for bankruptcy untimely filed their suit for foreclosure of a mechanic's lien, and since the contractor was not an indispensable party, the automatic stay granted the contractor by federal taw did not stay foreclosure against the owner under either state or federal law, and the employees had no hen at the time of filing their action. Hamel v. Amer- ican Continental Corp., 713 P. 2d 1152 (Wyo. 1986). Where wife not made party. -- Subcontractor was not entitled to foreclose mechanic's lien against property held by husband and wife by entirety through deed recorded 2 months after filing of lien statement wherein wife was not named and wife was not made party to foreclosure suit until over 3 years after filing lien statement. Peters v. Dona, 49 Wyo. 306, 54 P. 2d 817 (1936). Mortgagee interest holder, not sued within limitation period, not affected by lien. -- No action was brought within 180 days after the filing of the lien statement to foreclose the interest of the mortgage interest holder, and thus the lien could not affect its ~nterest. The fact that a suit was commenced within 180 days against the owners of the property, to whom the statute of limitations defense was not available, was irrelevant. Seafirst Mtg. Corp. v. Spe- cialty Concrete Constr., 708 P. 2d 1245 (Wyo. 1985). Amendment of pleading to assert mechanic's lien as a contractor instead of as subcontractor made more than 6 months after fihng of lien statement held barred under this section. McDonald Amusement Co. v. Fleming Bros. Lumber Co., 35 F. 2d 638 (10th Cir. 1929) (decided prior to Rule 15, W.R.C.P.). Cited in Tottenhoff v. Rocky Mt. Constr. Co., 609 P. 2d 464 (Wyo. 1980); Miller v. State, 732 P. 2d 1054 (Wyo. 1987).