In the event of non-payment on a construction project, filing a mechanics lien is usually your best bet to get construction debts paid. Since the potential outcome of a successful lien filing is so severe (for the property owner), just filing a lien if often enough to spur the resolution of the payment issue that was the initial cause of the lien.
But, if filing a mechanics lien doesn’t spur payment, then the claimant may end up having to take the next step in order to get paid: enforcing the mechanics lien which is also called a lien foreclosure. When a lien is foreclosed upon, this means that the lien claimant forces the sale of the underlying property, and the proceeds from the sale are used to satisfy the claimant’s debt.
To be clear, a lien foreclosure action is a lawsuit — it is a real lawsuit in regular court and not small claims court. We’re often asked if you can represent yourself in a mechanics lien foreclosure lawsuit without an attorney.
The short answer: it is rarely if ever a good idea. The longer answer: it depends on who you represent. Please read on for a brief explanation.
If You Want to Represent Yourself…
If you are an individual representing yourself, you will most likely have the right to represent yourself in a mechanics lien foreclosure action, no matter which jurisdiction your case resides in.
As an individual, you have a constitutional right in most states and in federal court to represent yourself in a court proceeding. The legal term for representing yourself is “Pro se”. We have discussed this type of representation in past blogs. Wikipedia defines a “pro se legal representation” as:
“ … advocating on one’s own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding… Pro se is a latin phrase meaning ‘for oneself’ or ‘on one’s one behalf’.”
If you proceed to represent yourself pro se, you’ll have to draft, file, and serve the lawsuit as required by the rules of your jurisdiction. You will prepare the foreclosure action yourself, file the document yourself and litigate (aka conduct the lawsuit) yourself. This all can be done without an attorney if you are representing yourself, your individual self. But just because you can doesn’t mean you should.
If You Want to Represent a Company or Other Entity…
On the other hand, you will most likely NOT be able to represent a company for a mechanics lien foreclosure action without an attorney. In most jurisdictions, companies cannot be represented by a non-lawyer individual in a court proceeding.
A “company” is a generic term that can refer to any of the following: a corporation, limited liability company (also known as “LLC”) or other business entities. Under the law, a business entity is considered a separate judicial person that is independent of the individuals that make up that business entity (like the officers, employees, etc.).
Because a company is considered a separate person under the law, an individual cannot represent a company in court (unless that individual is an attorney) because that individual is representing more than just themselves individually. In fact, it is illegal for an individual that is non-lawyer to represent anyone other than themselves.
That means it’s illegal for a non-lawyer individual to represent a company because that individual is representing “another” person other than themselves. This even applies when an individual owns a company — that individual cannot represent that company because it is representing a separate entity which is “another” person.
There may be exceptions, but they’re few and far between. Plus, as any lawyer or judge will tell you, it’s typically just a bad idea to represent yourself in court – even if you’re an attorney!
For Those That Still Want to Represent Themselves…
Okay, so what? Can you do it anyway? Well, you can try! There are couple scenarios we can imagine that would happen.
The first scenario is that you could get away with it and no one would ever know (note: we are not encouraging this behavior). You could try to file your suit and, depending on how strict the court’s clerk office is, the suit could either be filed or refused. (Good luck with that! Hopefully, it’s not Friday at 5PM).
The last scenario is one that could be potentially damaging to you. You could file your lawsuit and the other party could get you thrown off the case. If that happens, then the lawsuit could be found to be invalid (because it was not properly signed). This last scenario could lead you to miss the lawsuit filing date and even the loss of your entire claim if too much time has passed.
There’s a reason why you often hear the admonition that a person should not represent themselves in court. As we stated in the very beginning of this article, it’s rarely a good idea.
Furthermore, not all attorneys are created equally. If you need an attorney for a mechanics lien foreclosure lawsuit, you should look for someone that specializes in construction law (an area of the law that is not for the faint of heart).
Free Legal Resource from zlien
As part of our mission to provide resources to help educate the construction industry, we have a very helpful, free resource, our Construction Legal Center. Follow the link to ask your own legal question about payments in the industry, and our licensed attorneys will give you an answer.