33-1062. Release of stop notice or bonded stop
notice; surety bond
A. An owner, a construction lender or any original contractor or subcontractor who
disputes any stop notice or bonded stop notice may file with the person on whom notice
was served a release bond. The release bond shall be executed in an amount equal to one
hundred fifty per cent of the amount claimed in the notice, conditioned for the payment
of any amount that does not exceed the penal obligation of the bond and that the claimant
may recover on the claim. A copy of the release bond shall be served on the stop notice
claimant in the same manner required for the delivery of a stop notice. On the filing
and service of the release bond, the monies withheld in response to the stop notice or
bonded stop notice shall be released promptly. A bond to release a stop notice or bonded
stop notice under this section shall be executed by a surety company or companies holding
a certificate of authority to transact surety business in this state, issued by the
director of the department of insurance pursuant to title 20, chapter 2, article 1. The
bond shall be for the sole protection of the claimant who perfected such notice.
B. If an owner, a construction lender or any original contractor or subcontractor
causes to be recorded a surety bond to discharge a lien perfected by the stop notice
claimant pursuant to section 33-1004 with respect to the same labor and material
described in the stop notice or bonded stop notice, the surety bond shall also serve as a
release bond pursuant to this section, and the monies withheld in response to the stop
notice or bonded stop notice shall be released promptly on the recording and service of
the surety bond on the stop notice claimant as prescribed in section 33-1004.
C. In an action to enforce payment of a claim stated in a stop notice or bonded
stop notice, where a bond has been filed and served as provided in this section, a
judgment for the claimant on the bond shall be against the person seeking to release such
stop notice or bonded stop notice as principal and the surety for the amount the claimant
recovers on the stop notice or bonded stop notice claim, including any recovery for
interest, expenses, costs and attorney fees awarded by the court, that does not exceed
the penal sum of the bond. If the amount the claimant recovers on the stop notice or
bonded stop notice claim exceeds the penal sum of the bond, the claimant shall also be
entitled to judgment against the principal for the excess amount.
|