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Brian W. Erikson
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Brian Erikson’s Answers

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  • I signed a swimming pool contractor to renovate my pool, He did not finish the job is the contract binding

    We specified a hand rail that would go from the deck to the bottom step. He ordered the wrong one and we would not except it. he filled the pool refuses to Install the specified rail because of having to drain the pool. He offered a refund for th...

    Brian’s Answer

    First, the contract is binding - there may be a breach of the contract, and you may have sustained damages..

    You should write the contractor a letter by certified mail to request that the contractor return to correct/complete his work. In that letter, you should advise generally what work needs to be corrected/completed. You should also indicate that if the contractor does not return to correct/complete his work, you will have to retain another contractor, and will hold the first contractor responsible for the costs. Finally, indicate in your letter that if the contractor does not advise that he will return to correct/complete his work within one week, you will presume that he has no intention of doing so, and you will hold him responsible for the costs of correcting/completing his work.

    When the contractor does not return, you can retain another contractor to correct/complete the first contractor's work. Make sure that the second contractor itemizes his invoices and lists the costs to correct/complete the first contractor's work. You cannot charge the first contractor with the cost of work that was not within the first contractor's scope of work. For example, if the first contractor was supposed to install a handrail, you cannot charge him for the second contractor's installation of steps.

    Once you have tallied the costs associated with correcting/completing the first contractor's work, you can consider suing him to recover those costs. The jurisdictional maximum for small claims court in Texas is $10,000. So, if your claim exceeds that amount, you will have to sue in County or District Court. In small claims court, you can represent yourself. In County or District Court, you will have to retain an attorney. However, under Texas law, you would be entitled to recover attorney's fees if you prevailed.

    Make sure that you take a lot of photos of the first contractor's work. Digital photos with the date of the photo imprinted on the photo are best. You should document the condition in which the first contractor left the work and what it took to correct/complete the work.

    Please note that you are entitled to withhold enough money to correct/complete the work, but no more. The amount of money you should be withholding should be on the high side of the reasonable range for the cost to correct/complete. If half of the money is too much, you should pay the contractor what he is owed. Otherwise, the contractor could sue you and recover what is owed, plus attorney's fees and interest.

    Finally, unless you signed a proper homestead mechanic's lien contract, the contractor cannot file a valid lien against your home. (I assume that the pool is for your home, you own it, and live there.) Retain a construction attorney to help you write the letter to caution the contractor not to file a mechanic's lien. Then if the contractor ignores the warning, the contractor could have violated the Texas Fraudulent Lien Act, and could be liable for statutory damages of $10,000 or actual damages, whichever is greater plus attorney's fees.

    Good luck.

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  • What can be done when you have been fired but your boss tells unemployment you quit?

    In Feb my mother was hit with a car in a pedestrian hit and run. Her boss told her not to return to work until she could talk because her jaw was hurt along with other injuries. I have Cystic Fibrosis and spent 3 weeks in the hospital which left m...

    Brian’s Answer

    You may need to appeal using the procedures set out by the Texas Workforce Commission. You can review those procedures at the following link:

    http://www.twc.state.tx.us/jobseekers/introduction-unemployment-benefits-appeal-process

    Good luck.

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  • How will I know if an evicted tenant has vacated the property?

    I have obtained an eviction of a tenant. It is still within the time period before the tenant has to vacate the property based on the judgment I received. I know the Tenant has left the area to take a job in another city. If the time period for...

    Brian’s Answer

    First review your lease to see what it states about eviction and abandonment. If the tenant has abandoned the premises, you can usually take possession. I recommend keeping the tenant's possessions for a while to see if the tenant returns or requests them. Take photographs of the possessions. If there is much, you may consider writing to the tenant to advise that you have the possessions and will keep them for a certain period after which you will donate them or toss them.

    Good luck.

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  • What can be done when you have been fired but your boss tells unemployment you quit?

    In Feb my mother was hit with a car in a pedestrian hit and run. Her boss told her not to return to work until she could talk because her jaw was hurt along with other injuries. I have Cystic Fibrosis and spent 3 weeks in the hospital which left m...

    Brian’s Answer

    You may need to appeal using the procedures set out by the Texas Workforce Commission. You can review those procedures at the following link:

    http://www.twc.state.tx.us/jobseekers/introduction-unemployment-benefits-appeal-process

    Good luck.

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  • What are my legal options against Bank of America to obtain a partial release of lien on my homestead in Texas?

    I was sued by an attorney for Bank of America for credit card debt in 2011.. A judgment against me was issued that year.. I now want to sell my house. Under laws in Texas, I am entitled to a partial release of lien as this is my homestead. The pr...

    Brian’s Answer

    If you cannot resolve this on your own, retain an attorney to threaten the Bank of America with persisting with a fraudulent lien, that violates the Texas Fraudulent Lien Act, under the circumstances. The Fraudulent Lien Act provides for statutory damages of $10,000 or actual damages, whichever is greater. In your case, your actual damages may be greater.

    Good luck.

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  • What's the longest a collision repair shop can hold your car until they have the legal right to sell it

    The car was in accident,the case was settled,the other party didn't pay the expenses for car

    Brian’s Answer

    The process for a repair shop to gain the right to arrange for a sale of an unpaid repaired vehicle is set out below.

    A repair shop’s rights to a lien on such cars and to sell them are set out in Texas Property Code sections 70.001, et seq., and Texas Business & Commerce Code sections 9.609, et seq. The process to perfect the right to sell the cars requires notice to the persons with an interest in the cars (typically, the titled owner and lender of record). The repair shop should first prepare and file a UCC-1 financing statement with the Texas Secretary of State to reflect the debt owed for the repair and storage of the car.

    The statutes discussed above set out a process of notification and sale of the cars. If the repair shop has properly complied, the seller can prepare a transfer statement which the buyer can use to apply to the Texas Department of Motor Vehicles for a new title. Under the Business & Commerce Code provisions (set out above), the DMV has to recognize a proper transfer statement.

    The more information that you have concerning the cars and the persons or entities with an interest in the cars, the less expensive it will be to research the interested persons who need to be notified.

    To undertake the process, you would need the following:

    1. Whatever you can find about the persons/entities with an interest in the cars.
    2. The vehicle identification numbers, as well as the vehicle year, make, model, license plate number.
    3. The amount of the unpaid repair invoices.
    4. A copy of the unpaid repair invoices.
    5. The terms of the repair engagement (interest or storage or whatever additional charges have accrued).
    6. Whatever information/documentation you have concerning efforts to contact the persons with an interest in the cars.

    The steps that an attorney would take include:

    1. Prepare and file a UCC-1 financing statement to reflect the outstanding repair and storage charges.
    2. Apply for a certified copy of the title.
    3. Prepare and mail out notices to the persons interested in the cars.
    4. Assist with the public sale of the cars.
    5. Prepare a transfer statement for the buyer of the cars at the public sale.

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  • 10th mo tenant, executive class apartment, last month they informed me of 2 flats on my car, indeed they were flat from puntures

    couple days I got them replaced. Last Monday I stopped by office, told the car had another flat, informed them it was being picked up as soon as rain stopped (6" here last week) I aired it up, it held for about a day, aired tit up told them I woul...

    Brian’s Answer

    First, read your lease and any rules or regulations for the apartment community. What do they say about cars with flats? Is the issue that you had two cars parked? Are you permitted only one car?

    The towing company may have liability if there were no signs demarking the area as no parking.

    I suggest that you consider writing a letter by certified mail both to the towing company and to the property manager to set out the facts and to demand that your car be returned. An illegal possession of someone's property is conversion if the holder refuses a rightful demand for turnover.

    Good luck.

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  • How do I file a mechanics lien on a truck?

    Customer wrote me a bad check for $1840

    Brian’s Answer

    A lien for a repair shop is a possessory lien, meaning that it exists only so long as the repair shop has possession of the vehicle it repaired.

    You should consider reporting the bad check to the Harris County District Attorney. The web link for information is:

    http://app.dao.hctx.net/FAQs/4/Other_Divisions/5/Check_Fraud.aspx

    Or, you can sue in small claims court. I would try the District Attorney first, as there is no charge to you.

    Good luck.

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  • How can I dispute charges with my apartment complex?

    They issued really excessive charges after my lease ended for cleaning and wear and tear. The contractors used charged a lot for cleaning the unit, and they said the carpet had to be replaced. I don't think any of these charges were warranted. ...

    Brian’s Answer

    Under the Texas Property Code, section 92.104, the landlord may not retain from a tenant’s security deposit any money to cover normal wear and tear. A landlord who wrongfully withholds a tenant's security deposit can be liable under Texas Property Code section 92.109 for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit.

    You can review these sections of the Property Code at the following web address:

    Texas Property Code Chapter 92 - Landlord - Tenant Residential Property
    http://www.texaspropertycode.org/

    -Or-

    http://www.statutes.legis.state.tx.us/SOTWDocs/PR/htm/PR.92.htm

    The landlord has an obligation to provide an accounting for the tenant’s security deposit provided that the tenant owed no rent and had provided a forwarding address. See Property Code section 92.104. If the accounting is wrong, or the tenant disputes the accounting, the tenant can sue in small claims court for a wrongful withholding of the security deposit.

    Good luck.

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  • We hired a contractor (Texas). Paid $30k and he isn't finishing the job. Verbal contract, not licensed. Now what?

    He's always late, leaves early, constant excuses. Told us about a 2 week job and we are in 7th month.

    Brian’s Answer

    You should write the contractor a letter by certified mail to request that the contractor return to correct/complete his work. In that letter, you should advise generally what work needs to be corrected/completed. You should also indicate that if the contractor does not return to correct/complete his work, you will have to retain another contractor, and will hold the first contractor responsible for the costs. Finally, indicate in your letter that if the contractor does not advise that he will return to correct/complete his work within one week, you will presume that he has no intention of doing so, and you will hold him responsible for the costs of correcting/completing his work.

    When the contractor does not return, you can retain another contractor to correct/complete the first contractor's work. Make sure that the second contractor itemizes his invoices and lists the costs to correct/complete the first contractor's work. You cannot charge the first contractor with the cost of work that was not within the first contractor's scope of work. For example, if the first contractor was supposed to install carpet, you cannot charge him for the second contractor's installation of ceramic tile.

    Once you have tallied the costs associated with correcting/completing the first contractor's work, you can consider suing him to recover those costs. The jurisdictional maximum for small claims court in Texas is $10,000. So, if your claim exceeds that amount, you will have to sue in County or District Court. In small claims court, you can represent yourself. In County or District Court, you will have to retain an attorney. However, under Texas law, you would be entitled to recover attorney's fees if you prevailed.

    Make sure that you take a lot of photos of the first contractor's work. Digital photos with the date of the photo imprinted on the photo are best. You should document the condition in which the first contractor left the work and what it took to correct/complete the work.

    Good luck.

    See question