§ 34-28-17 - Dismissal of complaint, notice of lien, and release of lien upon deposit in court.
SECTION 34-28-17
§ 34-28-17 Dismissal of complaint, noticeof lien, and release of lien upon deposit in court. – (a) At any time after the recording of a notice of intention or after thefiling of a complaint to enforce a lien under §§ 34-28-10 and34-28-13, the owner or lessee or tenant of the land described in the notice orcomplaint may pay into the registry of the court in the county in which theland is located cash equal to the total amount of the notice of intention andthe accounts and demands of all persons claiming liens therein under §34-28-1, 34-28-2, 34-28-3 or 34-28-7, including costs, interest at thestatutory rate and reasonable attorney's fees of the lien holder, or may, inlieu of cash, deposit in the registry of the court the bond of a surety companylicensed to do business in this state in the total amount including costs,interest at the statutory rate and reasonable attorney's fees running to allpersons claiming liens under §§ 34-28-10 and 34-28-13, and on properproof of payment or deposit and on motion of the owner or lessee or tenant, anyjustice of the superior court shall enter ex parte an order discharging thenotice of intention and lis pendens and dismissing the cause as to the owner orlessee or tenant and as to all persons having any title, claim, lease,mortgage, attachment or other lien or encumbrance (other than under §34-28-1, 34-28-2, 34-28-3 or 34-28-7), and on the entry of the order, thebuilding, canal, turnpike, railroad or other improvement and the land on whichthe improvement is being or has been constructed, erected, altered, or repairedshall be released and discharged from the notices of intentions and accountsand demands, but the rights of all persons having any title, claim, lease,mortgage, attachment or other lien or encumbrance (other than under §34-28-1, 34-28-2, 34-28-3 or 34-28-7) shall be the same as if no notices ofintention under § 34-28-4 had been mailed or filed and as if no complaintunder §§ 34-28-10 and 34-28-13 had been filed. In the event that apayment is made into the registry of court in accordance with this section, anyperson, having a contract directly with the person making the payment, may bepermitted, after notice to all parties under the complaint and after hearing inopen court, to withdraw from the registry of court the sum of money due to himor her under the contract, provided that the person making the withdrawal firstfurnish a bond, payable to the clerk of court, with good and sufficientcorporate surety, for the repayment of the amount, or as much thereof as may benecessary to satisfy claims thereinafter allowed by the court.
(b) Notwithstanding the foregoing provisions, afterdepositing cash or the bond of a surety company the following shall apply:
(1) In the event that a notice of intention has beenrecorded, but no complaint filed, the person or other entity claiming the lienshall file the complaint against the surety within the time limits as noted in§ 34-28-10. In the event of a cash deposit as noted in § 34-28-17,the complaint shall be brought against the clerk of the respective superiorcourt for any deposit that is posted in the registry within the time limits asnoted in § 34-28-10.
(2) In the event that the complaint has been filed with theappropriate superior court, and after depositing cash or the bond of a suretycompany and discharging the notice of intention and lis pendens, and dismissingthe cause as noted in this section, the lien plaintiff shall amend thecomplaint, to include the surety as defendant within sixty (60) days after theperson or entity claiming the lien is given notice of the order in regard tothe bond. In the event of a cash deposit as noted in § 34-28-17, thecomplaint shall be amended and brought against the clerk of the respectivesuperior court for any cash deposit that is posted in the registry within sixty(60) days after the person or entity claiming the lien is given notice of thisorder in regard to the cash deposit.
(c) The complaint filed against a surety, or the clerk of anyrespective superior court, pursuant to subsection (b) of this section need notcomply with any procedural requirements of §§ 34-28-10, 34-28-11,34-28-12, 34-28-14, or 34-28-15.