Payment Security When You’ve Lost Your Lien and Bond Rights in Massachusetts
The best kind of security for work performed on public jobs is a payment bond, which allows for recovery of labor and material costs and attorney’s fees. On private jobs, claimants have lien rights, and may also have the added security of a bond. The technical procedures for preserving one’s rights to these types of security vary, and it’s possible to lose the benefit of these protections if you do not strictly comply with the requirements for each.
Should you find that you’ve missed a critical step to enforcing your bond or lien rights, you may still be able to get prejudgment security in the form of a “property attachment,” a “trustee process attachment,” or a “reach and apply attachment.” A property attachment is a court-ordered lien on a defendant’s real estate or personal property. A trustee process attachment is an order freezing funds held for the defendant by someone else, typically a bank. Finally, a reach and apply attachment targets the defendant’s right to receive funds from another party, such as payments due to the defendant on a construction project other than the one you worked on together.
To obtain any of these forms of security, however, you must file a lawsuit seeking payment of the debt, a motion requesting the attachment, and an affidavit establishing the debt. Unlike a mechanic’s lien or bond claim, your right to an attachment is not automatic, but is instead subject to the discretion of the court. In addition, you have the burden of locating property, assets or funds sufficient to secure the amount of your claim.