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Home » Legal Articles » Construction Mortgage Vs Mechanics Lien Win Lose Or Draw

Construction Mortgage vs. Mechanic’s Lien: Win, Lose or Draw?

Recently, I met with a commercial lender who mentioned a problem with one of his projects. Construction had started, but the developer hadn't closed the construction loan. Thus the lender's mortgage hadn't been recorded, but likely would be soon. He wondered how the delay might affect the priority of his bank's mortgage lien. Attorneys representing secured lenders in commercial foreclosure cases, or contractors in mechanic's lien actions, should be conversant with Indiana law in this area.

1910: A Draw. The Indiana Supreme Court's 1910 decision in Ward v. Yarnelle, 91 N.E.7 (Ind. 1910) is the landmark opinion on this subject. At the time, Indiana's mechanic's lien statute "failed to address the lien priority between a [construction mortgage] and the mechanic's liens of those who [completed] the construction." In Re Venture, 139 B.R. 890, 895 (N.D. Ind. 1990) (excellent summary of the law). The Court therefore announced the equitable "doctrine of parity" in which a "real estate mortgage executed while a building was in the process of construction was entitled to equal priority with the claims of [contractors that] worked after [recordation] of the mortgage and with full knowledge of its purpose and effect." Beneficial Finance v. Wegmiller Bender, 402 N.E.2d 41, 47 (Ind. Ct. App. 1980) (no parity because contractor completed its work before lender recorded its mortgage); Brenneman Mechanical v. First Nat. Bank, 495 N.E.2d 233, 242 (Ind. Ct. App. 1986) (parity because contractors had knowledge of loan, which helped pay them).

Whether the contractor had knowledge of the construction mortgage was critical to the Ward analysis. In such instances, the Court felt that lenders and contractors were in a kind of "common enterprise." Ward, 91 N.E. at 15. Under Ward, if funds derived from the mortgage were used in the construction project and if the contractors had knowledge of the loan when they performed their work, then the mortgage and the mechanic's lien had equal priority. Conversely, if the loan was not for purposes of construction or if the contractors worked without knowledge of the purpose of the loan, then the mortgage had priority over mechanic's liens for work performed after recordation of the mortgage. Venture, 139 B.R. at 896

1999: Statutory Amendments. I.C. §32-28-3-5 is the pivotal statute. Subsection (b) provides that a mechanic's lien is "created" when the lien notice is recorded. But the recorded lien relates back to the date the work began, which could pre-date a mortgage. In 1999, the General Assembly added the language now in subsection (d) that says construction mortgages have priority over mechanic's liens if the mortgage is recorded before the notice of mechanic's lien is recorded (not created). My reading is that subsection (d) disposes of Ward's doctrine of parity, at least as to commercial and industrial projects. (Note that section 5(d)(1)-(3) has carve-outs for certain residential and utility projects.) Accordingly, courts should focus on relative filing dates, and not on work dates or contractor knowledge.

Post-1999: One Case. The meaning of section 5(d) has not been tested on appeal, however, and I.C. §32-28-3-2(b)(2) priority, which favors contractors, may to some extent conflict with section 5(d) priority, which favors lenders. For more on this subtlety, read section 2(b), as well as Provident Bank v. Tri-County Southside, 804 N.E.2d 161, reh'g granted, 806 N.E.2d 802 (Ind. Ct. App. 2004), which gives some insight into the potential inconsistency. (Provident Bank also has an amusing result. The opinion dealt with a contractor's improvement [installation of a driveway] at a residence long after a purchase money mortgage had been recorded. Believe it or not, the majority held that the contractor's statutory remedy was to remove and sell the driveway.) Anyway, in the dissenting opinion, Judge Sharpnack toyed with Ward and the new I.C. §32-28-3-5. "In 1999, our legislature amended I.C. §32-28-3-5 and specifically addressed the situation before our supreme court in Ward and again discussed by the bankruptcy court in Venture." Id. at 168. Judge Sharpnack concluded in dicta that I.C. §32-28-3-5(d) applies "where funds from the loan secured by the mortgage are for the project which gave rise to the mechanic's lien. In such an instance, the mortgage lien has priority over the mechanic's liens recorded after the mortgage." Id. at 169

2007: Lender Wins. At least as to a standard commercial project, therefore, the Ward doctrine of parity seems to be a thing of the past. The lender, in the scenario presented to me, shouldn't be forced to share equally with any contractors that started construction before the developer closed the deal. Instead, the lender should hold a superior lien, assuming the lender records its mortgage before a contractor records a notice of mechanic's lien. In other words, if the project goes south, the lender should get paid first. Please e-mail me if you know of any recent trial court or unpublished appellate court opinions touching on the 1999 amendments or the doctrine of parity. Because it's been almost 100 years since Ward, perhaps we're due for another landmark opinion from our Supreme Court. As the law evolves, I'll provide updates on my blog.

And here is another random article you might be interested in...

Tips for getting your first credit card

Most of us get a credit card on our name when we go to college or when we are in our senior years of high school and all of us stumble into the same types of difficulties when it comes to finding an issuer and managing the credit card. Most banks ask for a prior type of credit history that most of the time lacks and for some type of warranty that we will be good payers. It is true, finding the right issuer and building a credit card history is not easy, but it can be done.

When you apply for a credit card the bank will usually ask you questions regarding your previous credit lines. Most young people do not have any type of credit history and this makes the banks unable to positively respond to their application. There are two things that you can do to go around this problem. One is looking for an issuer with a special offer, as there are many banks that offer credit cards for people who are just starting their first credit line. It is true that you will not have an extended credit line at first, but if you prove to be a good-payer and a loyal customer to the bank, you are likely to receive more credit line in time. If, however you cannot find an issuer that will give you a first chance with credit lines, you will need to build a credit history yourself. You can do this by getting credit cards from gas stations or from stores. There are gas stations, as there are supermarkets and department stores, which offer fidelity credit cards to their customers. Once you become the owner of such a card, make sure to balance it wisely and after a couple of months you can re-apply for a bank-issued credit card.

Actually, the most useful tips for those who get their first credit cards now are not those about how to actually obtain the card but about how to use it. Some happy card holders hit the shops as soon as they have the little plastic card and spend much more than they can pay back. The banks will never like that and there are no exceptions or grace periods only because you are new. All late payments count as bad credit and if you make such reckless spending, you are in danger of having your credit ceased as soon as it was approved. You will also be considered a "bad" client if you lose your credit card or if you forget credit card information often. Avoid carelessness when you deal with money and note down all the information regarding your card and the transactions you have made with it. Another good advice that all new card holders should follow is about owning only one credit card in the beginning. This is a good idea because it helps you get familiarized with the banking world, the card system and it is also a test to see if you can balance money. After one year or so, of good credit history you may apply for a second credit card; however, if you've had payment problems it is wise to stick to that one single card until you can correctly manage card-money.

It is always difficult for new-comers to break through in the baking world, yet with patience and a bit of wits you can become the owner of a new credit card. The difficult and tricky part begins when you start balancing it. Keeping records of card information, of the transactions made with it, remembering never to overspend or delay payments and generally having a careful and wise banking-attitude will make you a good client and a satisfied customer at the same time.