Avionics News August 2013 - 76

LEGAL EASE

Continued from page 67

In the event you have relinquished
possession of the aircraft, you may seek
to recover it under the laws of replevin.
Replevin is a legal action by which a party
may recover property withheld from him or
her. Upon recovery of the goods, you may
enforce your lien as above. Being forced to
undertake a replevin action demonstrates
the value of retaining possession of the
aircraft, if you are able. The complexity of
Missouri’s lien-enforcement laws also is a
good example of why consultation with an
attorney in these matters is always a good
idea.
Enforcing a lien in Kansas, on the other
hand, looks a little more familiar and simple.
In Kansas, actions to enforce a lien must
be commenced within one year of filing
the lien; otherwise, it will be deemed abandoned and void.
Sale of the aircraft must be by public auction for cash. Before the aircraft is sold, if
the name and residence of the owner thereof
is known, notice of sale must be given to
the owner in writing, either personally or
by mail, or by leaving a notice in writing at
the person’s place of residence or business.
The notice must state that if the amount due
(including costs of storage and sale) is not
paid within 15 days from the date of mailing (or otherwise posting notice), the aircraft
will be sold at public auction.
If an address of the owner is not known,
you must publish a notice of the time and
place of sale, and a description of the aircraft,
in a newspaper. In Kansas, this publication
must occur at least once a week for three
consecutive weeks. If there is no newspaper
published in the county, then the notice must
be published in some newspaper of general
circulation in the county. As in other states,
proceeds from the sale go to satisfy your
lien, with the remainder to the owner. If the
owner is not known, the remainder must be
deposited with the treasurer of the county in
which the auction occurred.
Enforcement of your lien in California
will depend on which lien provision you
relied upon. Recall that California permits liens dependent upon possession or
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avionics news

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august

2013

without possession by recording with the
FAA registry.
If the aircraft is in your possession and
you are not paid the amount due within 10
days after it becomes due, you, the lien holder, may sell the property at public auction to
recover the amount owed. Prior to initiating
a sale of the aircraft, you must give the legal
owner appearing on the registration certificate 20 days’ notice by registered mail.
You must then, 10 days before the aircraft is
to be sold, publish a notice of the sale in a
newspaper published in the county in which
the aircraft is located. In the rare event there
is no newspaper published in the county,
this notice requirement may be satisfied by
posting notice of the sale in three of the most
public places in the city or place where the
aircraft is to be sold.
Once again, upon sale of the aircraft, the
proceeds must be applied to the settlement
of the lien and any cost of storing and selling
the aircraft. Remaining proceeds must be
paid to the legal owner.
If the aircraft is not in your possession
but you have perfected your lien, you are
entitled to an issuance by the court of an
order to show cause why the aircraft should
not be sold at auction to satisfy the debt. You
are required to personally serve the order
to show cause on the customer, registered
owner and anyone else with an interest in
the aircraft (this means other lien holders)
within five days of the issuance of the order.
You also must send a copy of the order to
each person by first class mail.
If the interested parties are unable to
show cause why the aircraft should not be
sold, you may then sell the aircraft to satisfy your lien. Upon satisfaction of the lien,
California specifically requires that you file
with the FAA registry a notice of cancellation of the lien.
Finally, we consider enforcing a lien in
the state of Texas. Prior to a sale of the aircraft to recover amounts owed, and within
60 days of completion of the work for which
you have retained possession of the aircraft,
you must provide certain notice to the owner
shown on the registration certificate, and
any other lien holders on the FAA registry
or with the secretary of state. Notice to the
owner and other lien holders must include

your contact information, the amount due,
a description of the aircraft, and a statement
of your rights to sell the aircraft and apply
the proceeds in satisfaction of the lien. This
notice must be sent by certified or registered
mail, return receipt requested.
Assuming such notice has been properly
given to the owner and other lien holders,
90 days after the completion of the work for
which the amount is owed you may sell the
aircraft at a public sale and apply the proceeds to the amount owed. Any remaining
proceeds must be paid to the persons entitled,
which may be the owner or other lien holders.
If you are no longer in possession of the
aircraft, Texas permits you to recover the
property prior to a public sale in satisfaction
of the amounts owed to you. This allowance does not, however, permit repossession
from a bona fide purchaser who purchased
the aircraft without knowledge of the lien,
and prior to the date the lien was recorded
with the FAA. So if you are seeking to
repossess the aircraft to settle the lien, be
sure you know who currently owns the
property.
Repossession of the aircraft may be done
either by relying on the judicial process,
whereby you would obtain a court order
that the property be transferred to you, or
without judicial process. Please note the
requirement that repossession without judicial process must not “breach the peace.”
The last thing we want is for someone to get
hurt resorting to personal remedies when the
courts are available to assist.
CONCLUSION
As can be seen, although the enforcement
of liens in various states bears many similarities to one another, each state has its own
discrete differences and idiosyncrasies. It is,
therefore, of vital importance to know and
understand the applicable laws of your state
and to consult with legal counsel as needed
to ensure your rights are protected. If there is
one takeaway from the preceding analysis,
it is that, when in doubt of payment, one
should retain possession of the aircraft in
question at least until you consult with an
attorney to determine how to proceed with
obtaining, and subsequently perfecting and
enforcing, your lien. q
Avionics News August 2013

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