Priority disputes happen a lot in mechanics’ lien litigation. Typically, a mortgage lender claims that its first-filed mortgage trumps a later-filed mechanics lien. The “trumps” part is activated if and when the property is sold and there aren’t enough proceeds to pay both the lender and contractor. If the lender’s mortgage has priority, it gets first dibs on the sale proceeds, leaving the contractor with little or nothing.
Section 16 of the Mechanics’ Lien Act (770 ILCS 60/16) governs the lien priority issue. This section provides that (i) prior lien claimants have lien priority up to the value of the land at the time of making of the construction contract; and (ii) mechanics’ lien claimants have a paramount lien to the value of all improvements made to the property after the construction contract is signed.
In re Thigpen, 2014 WL 1246116 examines the mortgage lender-versus-contractor priority question through the lens of a bankruptcy adversary case where the debtors attempt to strip away a mechanics’ lien recorded against their homeresidence.
The debtors filed for Chapter 13 bankruptcy protection and later filed an adversary proceeding to extinguish the lien a contractor recorded against the home.
The debtors claimed that since there was a prior mortgage on the home and the home’s value had dropped to a sum less than the lien amount, the lien should be removed.
In bankruptcy parlance, this is called “lien stripping” and applies where a mechanics lien lacks collateral; usually because of plummeting property values.
The contractor argued that its lien took priority to the value of the improvements/enhancements and moved for summary judgment.
Held: Contractor’s summary judgment motion granted.
Q: Why?
A: Applying Section 16 of the Act, the Court held that where proceeds of a property sale are insufficient to pay competing lienholders, a mechanics’ lien claimant takes priority over a lender up to the value the contractor added to the property.
The Court wrote: “the Illinois Supreme Court has expressly recognized that Section 16 of the Act confers first priority, not something less, on mechanic’s lien holders, and that they trump pre-existing mortgages to the extent of the value of the improvements.” (*2).
While the court found that the contractor’s lien trumped the prior mortgage, the Court did not decide the specific monetary amount of the improvements relative to the home’s value.
The holding is still significant because now the contractor has a secured claim (as opposed to an unsecured one) against the debtors’ estate which must be paid over the life of the Chapter 13 plan.
If the debtors default, the contractor can liquidate the collateral – by forcing a sale of the home – and get paid via the proceeds. An unsecured creditor, by contrast, has no assets securing its claim. It must hope that the debtors have unattached assets (e.g. paycheck, bank accounts, accounts receivable) with which to pay the debt. (Good luck with that!)
Take-away: A big win for the contractor. Instead of having an unsecured claim (with no collateral tied to the claim), its mechanics’ lien claim is secured. This means the contractor’s lien attaches to the debtors’ house.
If the debtor defaults under the plan, the contractor can foreclose its lien and force a sale of the home and take priority to the sale proceeds up to the amount of the improvements (here, about $200,000).
The case’s unanswered question is how does the contractor prove the dollar amount of his improvements? The contractor will likely have to produce expert witness testimony or documents to establish the dollar value of the contractor’s time, labor and materials furnished to the debtors’ home.