§11.5 - Action on Lien

• Jurisdiction: Washington

§11.5 ACTION ON LIEN

The action to foreclose a mechanics' or materialmen's lien is brought in the county in which all or a portion of the property subject to the lien is located. RCW 2.08.210; RCW 60.04.141. The claimant also may seek a personal judgment against any party liable for the debt out of which the lien arose. RCW 60.04.181(2).

A suggested form of complaint is provided as Form 11-6 on the CD accompanying this deskbook.

Lien foreclosures, including those based upon contract extras, are equitable proceedings. Accordingly, neither party is entitled to a jury, and if one is impaneled it is only advisory unless the parties stipulate otherwise. Alpine Indus., Inc. v. Gohl, 30 Wn.App. 750, 637 P.2d 998 (1981), modified, 645 P.2d 737, review denied, 97 Wn.2d 1013 (1982).

A favorable judgment in a lien foreclosure proceeding will provide for the sale of the property covered by the lien, as in the case of foreclosure on mortgages. If the real property is not subject to the lien, the court may order the improvement removed and sold, provided the improvements are removable without injury to the underlying property. RCW 60.04.051; Irwin Concrete, Inc. v. Sun Coast Props., Inc., 33 Wn.App. 190, 653 P.2d 1331 (1982). The court must declare the ranking of the various liens, and the sale proceeds are required to be applied accordingly. Any deficiency remaining after the application of the sale proceeds continues as a personal judgment against the party liable and may be collected by execution on other assets of the judgment debtor. RCW 60.04.181.

A lien claimant who brings an action to foreclose a lien is entitled only to the contract price after deducting the claims of others for their performance for that lien claimant. Furthermore, the lien claimant, at its own expense, must defend any action against the owner to foreclose a lien brought by a mechanic or materialman to whom the lien claimant is liable. During the pendency of any such action, the owner (1) may withhold from the prime contractor an amount equal to those claims of such mechanic or materialman; (2) may deduct the amount of such judgment from the amounts the owner would otherwise owe the prime contractor, plus costs and attorney fees; and, if that is insufficient, (3) is entitled to a judgment over and against the prime contractor. RCW 60.04.151.

A lien claimant who has not fully completed its contract work is entitled to a lien only for the work performed. Although the lien...