As we discussed in a previous post, if a South Carolina mechanic’s lien is timely and properly filed, a lawsuit to foreclose on that mechanic’s lien must be filed within 6 months after the claimant ceases to furnish labor or material for the project. The defendants in that lawsuit must include any person or entity which has a lien or mortgage on the real property since the foreclosure suit asks the court sell the real property to satisfy the lien. The petition to foreclose the lien must be filed in the South Carolina Court of Common Pleas in the County where the property is located. That petition must include the following:
- A statement of the contract on which the lien is based
- The amount due
- A description of the property
- And all other material facts and circumstances; and
- A request that the property be sold and the proceeds applied to pay the lien
After the petition has been filed, notice must be given to the property owner and others who claim an interest in the property. That lawsuit is like any other and the defendant in the lawsuit must assert certain compulsory counterclaims and may assert others. For instance, an owner must assert that the work relating to the claim was defective and had to be corrected by others which cost the owner money damages. The owner should also assert any defenses which he has to the lien claim – for instance that the contractor has been paid, that the contractor did not perform the work, or that the contractor’s claim is not accurate.
The court will hold a hearing at which the mechanic’s lien claimant must prove the lien claim and the defendant may prove any counterclaim or defenses. Generally, although not always, a mechanic’s lien foreclosure action is heard by a judge without a jury.