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Monday, October 10, 2016

CMS Prohibits Arbitration Provisions in LTC Admission Agreements

Jared AllenCenters for Medicare & Medicaid Services (CMS) seeks to provide basic protections to residents of long-term care (LTC) facilities in signing an agreement for the arbitration of disputes between residents and LTC facilites. On September 28, 2016, as part of a massive overhaul of consumer protections applicable to LTC facilities, CMS issued a rule prohibiting LTC facilities that accept Medicare or Medicaid from requiring potential residents to enter arbitration agreements as a condition of admission.

The rule places clear restrictions on arbitration agreements entered between LTC facilities and residents after November 28, 2016, the effective date of the rule. Restrictions and/or requirements include the following:

  • Arbitration agreements cannot be entered into prior to the existence of a dispute;
  • Arbitration agreements must be separate agreements in which residents make “an affirmative choice to either accept or reject binding arbitration for disputes between the resident and the facility[;]”
  • The LTC must provide an explanation of the agreement including, at a minimum, that the resident is waiving the resident’s right to judicial relief for any potential cause of action covered by the agreement;
  • The agreement must be voluntary;
  • The agreement must provide for the selection of a neutral arbitrator and a venue convenient to both parties;
  • The agreement must not be contained within another agreement relating to other issues; and
  • Guardians or other representatives entering agreements on behalf of a resident must be permitted to do so under state law and must not have a financial interest in the LTC facility.

Opponents of the new rule have suggested CMS lacks the statutory authority to restrict the use of arbitration, but in addressing those concerns CMS has concluded that the Federal Arbitration Act (FAA) does not limit its ability to regulate how arbitration agreements are reached as a condition of participation in the federal payment programs. Because CMS acknowledges the FAA applies to already existing arbitration agreements, the new rule has no application to such agreements between LTC facilities and current residents. The final rule provides: “[T]he rule we are issuing does not affect already-existing arbitration clauses, but prohibits Medicare-and Medicaid-participating LTC facilities from using them in the future, as a condition of participating in these programs. While we share the same public policy concerns about already-existing arbitration agreements, we are only addressing agreements reached after the effective date of this rule.”

Jared Allen at 4:35 PM No Comments | Post a Comment
Wednesday, April 22, 2015

Beard St. Clair Acquires Unanimous Jury Verdict in Partnership Dispute

Attorneys Jeffrey Brunson and Lindsay Lofgran acquired a unanimous jury verdict finding the existence of a construction and excavation partnership between their client and another individual on April 2, 2015. Over the course of a three-day jury trial, the trial team presented evidence establishing that the parties verbally agreed to form a partnership to provide excavation and construction work, including extensive work done in North Dakota. The team presented further evidence establishing the detailed terms of the parties’ oral partnership agreement, including provisions to split profits and pay wages to each partner. In finding that the parties entered into a partnership, the jury verdict also unanimously determined that the parties orally agreed to all terms advanced at trial by the trial team.
Staff at 9:34 AM No Comments | Post a Comment
News, Litigation
Monday, August 11, 2014

Business Defamation: Keep it to yourself

Sometimes I catch my 12 year-old daughter intensely muttering things to herself.  This typically occurs after my wife or I have committed some perceived wrong, thereby wrecking her pre-teen life.  When asked what she is saying she always says, “nothing.”  My daughter wisely knows that the things she is saying to herself will get her in trouble if spoken to her loving parents.

Things we say out loud can get us all in trouble.  Defamation is what is known in the legal world as a tort.  In order to prove defamation a plaintiff must show that (1) information was communicated concerning the plaintiff to others; (2) the information was defamatory or untrue; and (3) that the plaintiff was damaged because of the communication.  Defamation done in writing is called libel and spoken defamation is called slander.

For example, let’s say Rich Rancher cuts Fred Farmer off in traffic.  Upset at Rich, Fred Farmer tells Craig Coffee that Rich Rancher uses illegal performance enhancing drugs to beef up his beef.  As a result Rich Rancher loses his cattle contract with a major grocery chain.  Rich Rancher can sue Fred Farmer for defamation.

This example also constitutes what could be considered defamation per se.  Defamation per se removes the element of having to show specific harm or damages.  Defamation per se exists if someone spreads false information that a person or business has engaged in: 1) criminal conduct; 2) immoral acts (such as adultery), or 3) dishonest activity as a business person.

Fred Farmer has implicated Rich Rancher in a criminal offense (illegal performance enhancing drugs) and improper business dealings (using the drugs to beef up beef).  Rich Rancher just needs to prove that Fred Farmer made the statement to Craig Coffee and that the statement is not true and he can be awarded significant damages for defamation regardless of whether he can show actual damages.  Fred Farmer may have a valid defense that his statement was true, but he will be required to prove that Rich Rancher was using illegal performance enhancing drugs to beef up his beef.  The process of proving the truth of the statement can be a lengthy and expensive ordeal.

Often times, those involved in business disputes want to proclaim to others about the actions of a partner in business.  To do so runs a high risk due to the fact that these types of statements often either implicate the partner in a crime or attribute the partner with improper business dealings.  For example, saying, “my partner is a thief,” if false, is defamation per se.  Proving the falsity or truthfulness of such a statement can be a costly legal battle.  By saying those words to others, a business person involved in a dispute is giving leverage to the other side and could end up getting less out of the dispute as a result.

The best advice is to follow the example of my 12-year-old and keep it to yourself.  The appearance of schizophrenia notwithstanding, sometimes talking to yourself beats speaking your mind. 

Jeffrey D. Brunson at 8:35 AM 2 Comments | Post a Comment
Business Law, Litigation
Monday, February 24, 2014

The Business of the BBB

Jeffrey D. Brunson

Lawyers get things done.  A truism apparently learned by my 10-year-old son.  During a recent recess at school he used such knowledge in his negotiations with a local mom who was volunteering her time.  The bell had rung and it was time to go back to class.  My son decided he needed more time on the playground.  The local mom volunteer, who happens to be a family friend, gently told him he needed to go back to class.  Additional words were exchanged and ultimately my son proclaimed, “My dad is a lawyer, I can convince you!”  His genetic link to legal prowess notwithstanding, instead of more time on the playground he got a whole lot of laughter and a quick trip back to class.

While lawyers may get things done, hiring a lawyer may not be the best way to handle all disputes and issues that arise in life and in your business.  One such avenue that is not typically discussed by lawyers is the Better Business Bureau (BBB).  In the interest of full disclosure, the author is on the board of the Snake River region of the BBB. 

The BBB is a non-profit organization whose mission is “to be the leader in advancing marketplace trust.”  Its vision is to have “an ethical marketplace where buyers and sellers can trust each other.”  It accomplishes its mission by:

  • Creating a community of trustworthy businesses;
  • Setting standards for marketplace trust;
  • Encouraging and supporting best practices;
  • Celebrating marketplace role models; and
  • Denouncing substandard marketplace behavior.

While the BBB is probably not the best avenue for major legal disputes between businesses, it is a very effective way to deal with more minor business disputes.  Going through the BBB complaint process can arm a business with information and prepare it for small claims court should the need arise.  The complaint process contributes to a business’s BBB rating.  Most companies take their BBB rating seriously, which validates the complaint process and promotes the BBB mission of having an ethical marketplace. 

Responsible businesses want to know about customer complaints so they can address them and make any necessary changes.  The entire design of the BBB is to allow that to happen.  A business can become accredited by the BBB and receive additional benefits including dispute resolution services.

Businesses should give the BBB a chance to help.  The website is a good place to start:  www.snake-river.bbb.org.  Convinced yet?  You should be, I am a lawyer after all and we get things done – just ask my son.

Jeffrey D. Brunson at 9:26 AM No Comments | Post a Comment
Business Law, Litigation
Monday, November 11, 2013

The Appeal of Zeal

Jeffrey D. Brunson

Letterman or Leno?  That was the assignment handed out in my freshman year college English course.  I was to debate which late-night talk show host was better against another student. We walked to the front of the class and exchanged oratorical parries and deflections.  At the end of the carnage, my opponent said something to the effect of, “Hey man it’s not World War III; we’re just talking about late-night talk show hosts here.”   As my 12-year-old daughter says about everything, “Awkward!”   In my mind, I was passionately and zealously advancing my position.  To my fellow student I was creating uncomfortable conflict in regards to an issue that was just not that important and I should give it a rest.

This may come as a shock to some, but lawyers have ethical rules that govern their behavior.  In the preamble to the ethical rules it provides, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  (I.R.P.C. Preamble [2].)  A lawyer has an ethical duty to fight passionately for his or her client’s position.  Too often there is a stigma attached to a lawyer who is passionately representing his or her client.  A lawyer’s primary focus should not be to make opposing counsel happy and comfortable, but instead to put his or her client in the best position possible.

Frequently, lawyers use their passion not for advancing their client’s position, but rather for forcing their client to settle the case.  While settlement may be a good result in some instances, the desire to settle should not dominate a lawyer’s efforts in handling a case.     

In a system designed to deal with conflict, conflict is going to happen.  Combatants in the legal arena should be equipped to deal with this conflict and not allow perceived discomfort to prevent them from zealously advancing the cause.   Even judges at times can seem uncomfortable with passionate representation.  A lawyer must be ready and willing to step into these situations.  In fact, a good lawyer should be causing these “awkward” situations. 

The lawyer one sees at church on Sunday should not be the lawyer one sees in the courtroom.  I am not suggesting that a lawyer should be running around the courtroom screaming “Did you order the Code Red?!” but rather that a lawyer should be passionately fighting on his or her client’s behalf.  At times the comment, “he cares a little too much about that issue” is used to characterize someone who is overly excited about a subject.  A good lawyer should “care a little too much” about his or her client’s case.

Zealous representation is not only okay; it should be desired and applauded.  A lawyer who seems checked out, distracted, or disengaged is not a lawyer worth hiring.  On the other hand, a lawyer who treats your matter like it is World War III is one worth having on your team.  A zealous advocate may not be able to solve all of your problems, but, at a minimum, should at least be able to convince you of the incontrovertible truth that what was true in my freshman English course is still true today – Letterman is better than Leno.

Jeffrey D. Brunson at 9:49 AM 1 Comments | Post a Comment
Monday, September 16, 2013

Embracing Litigation

Jeffrey D. Brunson

I sue people.  In a conservative place like Idaho that job description could cause me to feel like an outcast.  Ralph, from the animated movie Wreck it Ralph, captures this sentiment nicely.  Ralph is a video game villain akin to the ghosts from Pac Man.  In his video game, his job is to wreck things.  In the movie Ralph states, “It’s kind of hard to do your job when no one likes you for doing it.”

Society at large dislikes litigation lawyers.  They have the reputation of charging too much, causing unnecessary problems, filing frivolous claims, ambulance chasing, and representing unethical businesses and people.  Because of this animosity toward litigators, people often resist the legal system as a means of resolving disputes.

At times I feel like Ralph.  It can be hard to do my job when no one likes me for doing it. At a support group involving other like-minded video game villains, the villains all repeat the mantra,  “I’m bad, and that’s good.  I will never be good, and that’s not bad.  There’s no one I’d rather be than me.” 

Fortunately, I do not need a support group to see the vital and positive role litigation plays in our society.  Yes, you read that correctly, litigation plays a positive role in our society.  Litigators fight to protect, enforce, and defend peoples’ property rights.  They seek to enforce the law and at times create new laws for the benefit of society.  They prevent unethical business dealings and promote fairness in the judicial system.  If there were no litigators, the system would erode and there would not be a forum for people to adequately protect their rights. Without confidence in the legal system, businesspeople would be less willing to take the kinds of risks that lead to economic productivity and prosperity.

For example, say you enter a business deal with Peter Promise to buy 100 widgets.  You pay Peter in full and he delivers defective widgets.  You try and make things right with Peter, but he ignores you.  You go to the police and they tell you “it’s a civil matter.”  You could walk away or you could hire a litigator to sue Peter.  If you do nothing then Peter will likely continuing making promises he does not deliver on.  However, if you sue him you can be made whole and you can expose Peter for the over-promising fraud that he is.  Is it morally wrong to engage in litigation or is it morally wrong to do nothing and allow a predatory businessman such as Peter to continue to hurt others?

Litigation’s bad reputation is earned and reaffirmed by the conduct of a minority of lawyers.  Problems arise when your litigator turns out to be of the same moral code as Peter Promise.  Carefully selecting a litigator is key and going with the lowest bidder is usually not advisable.  Interviewing more than one potential lawyer and researching a lawyer’s reputation before you hire will help you hire the right lawyer.

By the end of Wreck it Ralph, one realizes that Ralph is not “bad” but rather plays an important and necessary role for everyone’s well being.  As a litigator, call me bad or call me good, but there is no one I’d rather be than me (except maybe the general manager of the Boston Red Sox).

Jeffrey D. Brunson at 2:46 PM No Comments | Post a Comment
Litigation
Wednesday, May 1, 2013

Lawsuit Avoidance

According to John Davenport, M.D., J.D., Chair of the family medicine department and an attorney and risk manager at Kaiser Permanente Orange County in Irvine, Calif., the typical family physician can expect to be sued about once every seven to 10 years.  And the reasons for these lawsuits are endless.  So what can you do to protect yourself?  According to the American Academy of Family Physicians you must develop a risk-management style of practice involving the four Cs: compassion, communication, competence and charting.

 

Compassion

Billing practices say a lot about your level of compassion.  It goes without saying that health care costs can place a tremendous burden on families and physician and hospital collection practices can exacerbate those pressures. Contrary to popular myths about bankruptcy abuse, and according to actual statistics published by the federal courts which were summarized in a joint report published in 2005 by Harvard Law School and Harvard Medical School, one half  of all bankruptcy filings in the US resulted from catastrophic medical bills. 

 

If a patient is not paying his or her bill it means one of two things, a) the patient cannot afford the bill or b) he or she is not happy with the care they received.  A recommended policy is to send three letters.  The first letter is a gentle reminder, the second is a little more blunt, and the third informs them you are sending them to a collection agency.  This third letter should never be sent without you being aware that the collection action is being taken and without you personally speaking to the patient.  Patients that are angry appreciate the chance to be heard and are often more willing to work out payment terms.  Health care practitioners, like other professionals, need to be more personally involved and proactive in their billing practices.  The patient may not agree with the bill, but they are usually happier that you expressed a willingness to discuss it with them.  Happier patients are less likely to sue.

 

Communication

Be honest and open with communications, not only with your patients and their family members but with colleagues and staff as well.  Don’t engage is chart jousting: a nurse writes one observation, a physician notes a conflicting observation, and a consultant offers yet a third observation.  Plaintiff’s lawyers love to see this as it can be damaging to your defense.  It also makes no sense and makes the practitioners appear unprofessional and incompetent.

 

Competence

Remembering everything that is needed for the care of every patient is impossible.  You can however, improve your competency by using flow sheets, protocols and other tools that help reduce overlooked items.  Also, when a patient isn’t recovering as quickly as expected do not be afraid to seek consultation.

 

Charting

The greatest charting mistake physicians make is writing volumes in some type of attempt to avoid litigation but failing to note what is important.  This has to be one of the greatest myths sold to physicians, i.e. that more is good. Instead it is like the rambling witness at trial who likely would have stayed out of jail had he or she simply stuck to the facts. There is no need to write a novel, instead get to the heart of the problem.  Be as clear and precise as possible.  Other common mistakes are altering records after the fact and making personal comments about the patient.  If you need to alter a chart or note, always initial and date the change with some type of explanation as to why the alteration was made.  Unexplained alterations in documents are one of the most powerful weapons a plaintiff's lawyer has; juries will invariably note the problem and hold it against the practitioner making the alteration. Always approach documentation in an honest and thoughtful manner.  Be objective and legible.  

 

There is no guaranteed immunity from lawsuits; however, expressing compassion for your patients, developing good communication habits, maintaining clinical competence, and producing accurate charts can go a long way toward reducing liability. 

 

*Family Practice Management - www.aafp.org/fpm - March 2004

Michael D. Gaffney at 4:53 PM No Comments | Post a Comment
Litigation
Wednesday, June 26, 2013

Tips for Selecting Malpractice Insurance

Michael D. Gaffney

Malpractice insurance is becoming an expense that more and more physicians can not afford.  However, the costs a physician could incur to successfully defend a single claim of malpractice would likely exceed the annual premium for liability insurance, and this fact alone makes malpractice insurance a sound business expense.  Deciding how much or what type of insurance to purchase is a personal decision based on a number of factors such as (1) your specialty and the risk it entails, (2) practice location, (3) how much of your assets you are willing to risk, and (4) state requirements.  The following tips will help you in your search for the right malpractice insurance.

Tip #1:  Assess Potential Insurance Carriers

The American Medical Association warns, “Do not buy insurance solely on the basis of the premium charged.”  Other important factors to consider are…

- Financial stability - to find out a company’s financial rating visit ambest.com

- Protection against insolvency -  find out what state guaranty funds are available if the insurer becomes financially unable to pay claims

- Performance record – state insurance departments can provide useful information about specific insurance carriers licensed within the state

- Handling claims – know and understand the insurer’s method of handling claims

 

Tip #2:  Compare Coverage and Exclusions

Once you’ve identified two or more potential insurance carriers ask for a copy of the policy so you can compare the coverage and exclusion sections.  Some will cover not only claims of professional negligence but also claims of unprofessional conduct.  Most policies exclude claims involving punitive damages, intentional misconduct and contractual indemnity claims.  Compare the language of each such exclusion in the policies you are considering and seek advice from your insurance agent or attorney.

 

Tip #3:  Carefully Review the “Consent to Settle” Provision

These provisions define the terms under which a settlement might be agreed upon by the insurer and the physician.  These clauses should be reviewed carefully.  You may find that the provision contains a “hammer clause.”  This clause allows the insurer to “cut you loose” if you refuse to settle.  Leaving you responsible for ongoing defense costs and the amount of any verdict that exceeds the amount of the recommended settlement.

 

Tip #4:  Do Not Lie or Shade Your Application

When a malpractice suit is filed, your insurer will try to avoid covering the claim by looking for false or missing information on your application.  When filling out the application you should always err on the side of full disclosure.  To ensure accuracy, you should complete your own application or at the very least review it carefully prior to submission.

Understanding your malpractice policy can be complicated yet critical.  When shopping for a new policy or renewing a current policy, do your homework and if necessary ask an attorney for advice.

 

*Family Practice Management – www.aafp.org/fpm - March 2003

*American Medical Association – www.ama-assn.org – October 2005

Michael D. Gaffney at 4:48 PM No Comments | Post a Comment
Litigation
Wednesday, May 1, 2013

Top Seven Reasons Doctors Get Sued

Michael D. Gaffney

There are myriad reasons why patients end up suing their physicians. According to the American Academy of Family Physicians here are the seven most common ones and tips for avoiding them.

 

1. Failure to diagnose or a delay in diagnosis

This is the most common malpractice allegation made by patients. To prevent an incorrect or missed diagnosis, make sure you are diligent in following patients’ complaints to a full diagnosis. Also, be familiar with the error rates of your diagnostic instruments. The most common problem is over reliance on testing, and overlooking the obvious.  Rely on your years of training and most importantly, listen to your patient; sometimes patients are right about what the problem is.

2. Negligent “handoff” care

The classic story of the failed handoff is the Friday night catastrophe that occurs while the patient’s doctor has gone away for the weekend and the covering physician is inadequately informed and has no prior relationship with the patient. This is particularly common with maternity cases. Developing a routine of signing out patients can go a long way toward reducing the risk of a failed handoff. Make sure there is a number at which you can be reached. In order to avoid lawsuits your patient’s care must be a high priority.

3. Negligent fracture or trauma care

This problem relates to Reason No. 1 and usually starts in the ER. This typically happens when an injury ends up being worse than initially diagnosed because symptoms go unrecognized. Try to exercise a modicum of care in making the initial diagnosis. Although trauma cases in the ER require split second decisions, many times very basic problems are missed because you are conditioned to follow a rigid protocol that may actually militate against an accurate diagnosis. This is not simply a problem that occurs in medicine, it happens in law, engineering, accounting and so forth. Professionals become so fixated on the process that they miss the substance of what they are looking at, but not seeing. Most of the more egregious medical malpractice cases arise under this scenario, a missed vertebral fracture, an aneurism, a compromised nerve.  Listen to your patient or family member's description of what exactly the patient is experiencing.

4. Failure to consult or delay in consultation

Try using the rule of three: If you haven’t figured out and corrected a patient’s problem within three visits, enlist someone to help you. It may be a partner across the hall or a specialist down the road.  In primary care, it can be a challenge to diagnose vague symptoms for early-stage disease at the first visit. By the second visit, the story becomes better clarified. By the third visit, a clear diagnosis and plan should be decided. The main point is to set a plan for diagnosis; when these have not occurred as planned, then get help. If you cannot figure out a problem and are unwilling to admit it, just like any other profession, you have no business doing what you are doing. After all, you are being paid to solve people's problems, not create or prolong them. There is nothing wrong with simply saying "I don't know."

5. Negligent drug treatment

Drug-related iatrogenic injuries cause thousands of hospital admissions each year. A recent Wall Street Journal article highlighted the unbelievable number of pharmaceutical mistakes made in prescribing drugs, from illegible scripts, to incorrect dosages to pharmacists incorrectly filling prescriptions. Many of these injuries are related to the use of warfarin, perhaps the most dangerous prescription drug in America. Because of the drug’s very narrow therapeutic window, the clinical care team needs to use a protocol to insure that patients are well educated about using warfarin and are getting their International Normalized Ratios checked regularly. Another problem is over prescribing because of pressure from pharmaceutical companies and patients. The classic scenario is a drug ad on TV for a drug, the purpose of which is never mentioned, which the patient wants, but rarely needs, e.g. "the purple pill." Make sure the patient  needs the "purple pill" before prescribing it. If you have any doubts, look at Fen-Phen and Vioxx—the science may be out, but the multimillion dollar verdicts are in.

6. Negligent procedures

The most common problem physicians’ face with procedures is not that they are doing procedures they were not trained for, but that they find themselves doing procedures when they’re not at their best – when they’re tired or mentally distracted – and then the procedure goes badly. Although this may sound basic, the best way to prevent these types of injuries is to be prepared physically, mentally and emotionally for the procedure. Distractions such as sleep depravation and pressing personal problems might be good reason to reschedule or have another physician perform the procedure.

7. Failure to obtain true informed consent

If failure to obtain informed consent is the only allegation a plaintiff makes, it usually suggests a weak case on the merits, and the physician has a good chance of winning the claim. Still, it’s best to avoid this risk by actually explaining to patients, then documenting that discussion including expected outcomes, potential risks and reasonable alternatives. Nonetheless, talk to your patient. I recall an anesthesiologist bringing an informed consent form to me to fill out, doing a brief review and holding a pen in front of my face. The first question out of my mouth was "what is your name?"  No introduction, no explanation, simply "sign this, I'm busy." Bedside manner, particularly with anesthesiologists and radiologists will save you a plethora of complaints.

 

*Family Practice Management – www.aafp.org/fpm - March 2003

Michael D. Gaffney at 4:40 PM No Comments | Post a Comment
Litigation
Wednesday, June 26, 2013

Creating Valid Liens

Lean on me

When you’re not strong

And I’ll be your friend

I’ll help you carry on…

- Bill Withers 1972

Leaning on a friend for help is one thing. Liening on real property is quite another. It doesn’t happen often, but when it does, it happens fast – a relationship sours or a check bounces and someone is left without payment.  All at once you are in a scramble to file a lien to protect yourself and your checkbook. Fortunately, Idaho law allows a person who furnishes labor or materials that are used to improve real property to file a lien on that property. In your attempt to file within the 90-day window of opportunity, don’t get your lien thrown out on a technicality. 

Filing a Valid Lien

A proper lien must be filed within 90 days of labor or materials having last been provided and must be recorded with the County Recorder.  The lien must contain:

- A statement of the amount demanded, after deducting all just credits and offsets.

- The name of the owner, or reputed owner, if known.

- The name of the person by whom the claimant was employed or to whom he furnished materials.

- A description of the property to be charged with the lien, sufficient for identification.

The lien must also be verified by oath and contain a statement that the claimant believes the lien to be “just.”  A “duly sworn” oath or affirmation is not sufficient.  Many preprinted forms do not comply with this requirement, so be careful.

Lastly, a copy of the lien must be personally delivered to the owner of the property, or mailed via certified mail, within 5 days of the recording of the lien.

A defective lien will not be upheld in a court of law and will provide the claimant with nothing to lean on. However, a properly recorded lien will protect the claimant and provide him with some assurance of payment.

Foreclosure

If the property owner fails to pay the lien then you must file a complaint to foreclose on the lien within 6 months. Courts enforce labor and materialman’s liens by foreclosing on the lien.  The Court issues an order for the property to be sold by the Sheriff and the proceeds of the sale to be used to satisfy the lien. 

The priority of all liens and other encumbrances determines who gets paid first from the proceeds of the sale. A labor or materialman’s lien is a preferred claim that has priority over any subsequent mortgage or other encumbrances. Because the priority of liens is established when the work was commenced, it is a good idea to clearly document the time you begin work on a project.

In most instances, just the threat of losing property prompts owners to pay a lien.

Attorney Fees

If your lien is valid and you prevail on foreclosing your lien the Court will award you your attorney fees. Even if you prevail on only a portion of your claim, you may be entitled to all of your attorney fees.

Lance J. Schuster at 4:19 PM No Comments | Post a Comment
Litigation