after we fired him. We told him we were waiting for our loan to close (securing a loan was part of our original contract with him) and then would be in touch regarding his payment. There's a foundation issue - he screwed up and didn't build it to the engineered plans and so we fired him and now have to get the foundation fixed. Anyway, yesterday we decided to pay him the random items on his invoice that were not related to the foundation, as sort of a good faith thing. That went out in the mail yesterday. This morning I get the lien notice. Should I stop payment on the check I sent out? Also, if he cashes that check is there some sort of legal loophole that goes "Aha you accepted payment you have to lift the lien!"
Any advice would be helpful. I'm waiting to hear back from the bank to see if we can bond around it before we do ANYTHING, but I'm going stir crazy.
2007-11-27 04:38:17 · 12 answers · asked by Anonymous in Politics & Government ➔ Law & Ethics
I'm in California, by the way.
2007-11-27 04:52:10 · update #1
OK, a mechanics and materialmen's lien is a very old thing in the law, and it has a lot of force. Even if you don't like the work he did, he has the right to a lien for the work and the material he provided while working under contract to you.
Whether or not he actually gets a judgment for that amount is another matter entirely. Now, that he has filed his lien, in order to foreclose it, he has to file a lawsuit in court to get a judgment and then foreclose the lien.
You can do one of two things, both of which require an attorney. You can attack him now. Have your attorney send him a letter stating that he didn't perform the work to the agreement, and if he persists in his lien, he will be subject to whatever causes of action the attorney can find, including, but not limited to, an attack on his builder's license and bond.
Or, you can wait until he files his lawsuit, then answer, denying all liability.
I would NOT stop payment on the check since it represents the work he did that you think he is entitled to payment for. It is everything else that is in dispute.
** Note: This is a general discussion of the subject matter of your question and not legal advice. Local laws or your particular situation may change the general rules. For a specific answer to your question you should consult legal counsel with whom you can discuss all the facts of your case. **
2007-11-27 05:03:31 · answer #1 · answered by scottclear 6 · 1⤊ 0⤋
OK, it sounds like no lein has been filed yet. In California, a contractor must give a 20 day notice before actually filing a lien with the county recorder's office. You probably received the notice.
Since nothing has been recorded yet (presumably), you can negotiate with the contractor. Tell him you will pay such-and-such in exchange for a waiver.
No legal loophole concerning accepting the check, unless you and the contractor agreed that it would be payment in full, or you wrote something conspicuously on the check that the check represented payment in full.
If the contractor actually follows through with recording a lien, then the contractor then has 90 days to file a foreclosure suit. If he doesn't file within 90 days, the lien becomes invalid, and you can file a petition to have it removed, and sue the contractor for the legal expenses involved with the petition action.
Go to the state contractor's licensing website for a brief oveview of the mechanic's lien process. http://www.cslb.ca.gov/
As Scott stated, you can hire an attorney now, or wait to see if the contractor follows through with a foreclosure suit. Or, in addition, you can negotiate now and reach an agreement. You have a 20 day window before this contractor can officially record a lien.
Edit: I just realized the 20 days is for subcontractors, not the primary contractor. Even so, if a lien has been recorded, you can still negotiate for a waiver before the contractor files a foreclosure suit, if he even decides to do that. Also, filing a mechanic's lien is easy. The contractor is not required to present evidence to a judge, or anything. All he needs to do is fill out a form, have it notarized, take it to the county recorder's office, and pay a nominal recording fee. That's it.
2007-11-27 05:48:10 · answer #2 · answered by Mr Placid 7 · 0⤊ 0⤋
Actually it will be the other way around. Since you paid him some you are not totally unsatisfied w. his work..... which will make his case stronger.
It is time to do a full stop. Stop payment now regardless of the particulars. The foundation is a serious issue that could impact you in a very big way later.
Obviously he is well practiced in this if he was able to get a lien. Stop payment now. Speak to a lawyer as there are many things that can be done to turn this around.
2007-11-27 05:33:01 · answer #3 · answered by jackson 7 · 0⤊ 0⤋
get a good attorney and sue him for the cost of repairing the foundation work that you had to get fixed and report him to the better business bureau in your area. He can't place a lien on your property for work that he didn't do and you have paid for the work not related to the foundation. I think I would even stop payment on the check but talk to a lawyer asap to see what he tells you. you should have the stronger hand her and he may be hoping that you are afraid enough to cave in and give him money for something he didn't earn. good luck!
2007-11-27 04:53:36 · answer #4 · answered by Al B 7 · 0⤊ 0⤋
Unfortunately your issue is more complex than can be answered here. The workers lien (in most states) will prevent you from selling/refinancing your property until he is made whole. There's the rub for what you and he believe is fair can only be decided legally.
It will cost, but contact a contract lawyer who has a decent reputation.
good luck
2007-11-27 04:43:41 · answer #5 · answered by we_are_legion99 5 · 1⤊ 0⤋
As a past owner, if the contractor failed to do the work or repair any faulty work he should be held responsible. There are city and or county permits along with license's the contractor should of had before he could do work for your house. Check with the city building department and or the county to see if there was any type of bond he needed before he could work, which insures that if he fails to do the work or never completes or fixes his work , it will pay (he will) for another contractor to complete the work the right way.
2007-11-27 04:49:29 · answer #6 · answered by 1992dodgeman 1 · 1⤊ 0⤋
Cancel the payment and make sure you get a unconditional lein release in exchange for payment. Never pay contractors unless they give you this in exchange for every payment ...
Sounds like you are going to court ...do not pay him !!! it will be a lose lose situation .
2007-11-27 04:43:17 · answer #7 · answered by Bonnie 2 · 0⤊ 0⤋
Get a lawyer ASAP. Liens like this can be very messy and hard to get rid of. Get a lawyer now.
2007-11-27 04:41:36 · answer #8 · answered by Anonymous · 0⤊ 0⤋
maybe wait a day and see if he stops leaning there on your house
then if doesn't go home, buy him a beer and give him a sandwish and see what he wants
maybe he would stop leaning there then, maybe he could go to a park bench or something
2007-11-27 04:41:43 · answer #9 · answered by Anonymous · 0⤊ 1⤋
you can stop the check but if he cashes it then he has excepted payment for services rendered
2007-11-27 04:42:18 · answer #10 · answered by Anonymous · 0⤊ 1⤋