FRIVOLOUS LIEN MOTIONS BRING RISKS

Washington State recognizes many different types of liens — the familiar mechanic’s lien in the construction industry, at RCW 60.04, plus at least 30 other varieties of lien devices to secure payment for various types of services rendered.  Almost all of those lien statutes bring with them the opportunity for the owner of the liened-upon property to bring a motion to expeditiously dismiss a frivolous lien.

Such motions are available, but as the saying goes, “Just because you CAN, does not necessarily mean that you SHOULD.”  Motions to dissolve liens as frivolous entitle the prevailing party to an award of attorney fees.  Therefore, before one files a motion to dismiss a lien as frivolous, a close examination of all the facts is required.  You may think that you have all the evidence necessary to immediately prevail, but if you are wrong, such motions can typically cost from $3,000 to $8,000.

Moreover, the case law runs strongly in favor of the lien claimant.  While the courts have said that such motions are heard as a “trial by affidavit,” the courts have also stated that the summary procedure does not replace a full trial on the merits where the matters in issue are not clear-cut.  A review of Washington case law, both published and unpublished opinions, reflect that such motions are rarely successful.

In my practice, I have asked other attorneys to send me their briefings and Orders on such motions.  I have encountered only two successful motions briefings in the last five (5) years.  I brought one, and a colleague brought the other.  Both were on facts that show successful motions rest upon the lien itself being invalid on its face.  For example, one lien clearly included amounts earned over the preceding five years relating to multiple projects, but liened against only one property.  Moreover, the owner of the single property was completely unrelated in any way to the owners of the other parcels where work had been performed that was being claimed.

The second lien that was dismissed as frivolous described work performed that could not have been performed on the liened-upon property.  There, the lien sought payment for work performed in common areas of the condominium, where the liened-upon property was a single family residence.  The case law makes it clear that an invalid lien is not necessarily frivolous, but a truly frivolous lien is one so wholly devoid of merit that its dismissal is without question.

Be wary of filing such motions, and be willing to assume the risk of an additional $3,000 to $8,000 in your gamble.  If you haven’t been to the casino lately, perhaps you do not want to play this game, either.