There is a defense to construction liens raised by owners known as the fraudulent lien defense. A party can assert a fraudulent lien as an affirmative defense or as an affirmative claim. This is embodied in Florida Statute s. 713.31.
Recently, with respect to payment bond claims, there is also a defense relating to a party’s fraudulent notice of nonpayment. This fraudulent notice of nonpayment defense mimics the fraudulent lien defense and provides:
A lienor who serves a fraudulent notice of nonpayment forfeits his or her rights under the bond. A notice of nonpayment is fraudulent if the lienor has willfully exaggerated the amount unpaid, willfully included a claim for work not performed or materials not furnished for the subject improvement, or prepared the notice with such willful and gross negligence as to amount to a willful exaggeration. However, a minor mistake or error in a notice of nonpayment, or a good faith dispute as to the amount unpaid, does not constitute a willful exaggeration that operates to defeat an otherwise valid claim against the bond. The service of a fraudulent notice of nonpayment is a complete defense to the lienor’s claim against the bond.
Fla. Stat. s. 713.23(1)(d); 255.05(2)(a)(2).
It can be expected that any party required to serve a notice of nonpayment will receive as an affirmative defense to a payment bond lawsuit that the notice of nonpayment was fraudulent. There has not been a case as of yet to apply a standard to this defense so it is presumed that the standard will be fairly consistent with the standard applied to fraudulent liens. Nonetheless, even if the standard is challenging, this will be an expected defense where notices of nonpayment will be challenged as being fraudulent. Also, a claimant that is not required to serve a notice of nonpayment to preserve its payment bond rights will not have to deal with this notice of nonpayment defense.
If you need to serve a notice of nonpayment to preserve payment bond rights or, alternatively, are the recipient of a notice of nonpayment, it is prudent to consult with counsel to ensure your rights are appropriately preserved and protected. When dealing with fraudulent liens, a lienor can rely on advice of counsel if the lien is prepared by counsel. Presumably, a claimant that serves a notice of nonpayment should be able to rely on advice of counsel too if the notice of nonpayment was prepared by counsel.
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