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Brian W. Erikson
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Brian Erikson’s Answers

3,072 total


  • What are my rights for completing project? Contractor is threatening a lien and saying we're not letting him complete project.

    We hired a contractor for a $7000 pool renovation. Contract signed may 20 Half paid upfront. His contract requires final payment at completion. There is no written completion date but have in writing via text a June 12 completion date ( not acc...

    Brian’s Answer

    It happens often – the owner pays the contractor in full, but the contractor does not finish the project. Or, the contractor’s work is defective, and he does not return to correct it. Now what?

    First, you need to document the situation. You need to establish that the work is incomplete or defective. Take photographs, preferably with a digital camera which puts the date on the image. Then, write to the contractor by certified mail, to request that he return to complete/correct his work. You need to be specific – list what needs to be completed/corrected. The contractor may return to complete/correct his work, and the matter is resolved. If not, you should take bids to complete/correct the work, making sure that the scope of work for the replacement contractor matches the scope of the original contractor’s work. You cannot charge the original contractor for additional work, unless the additional work is necessary to resolve problems that the original contractor caused. With the replacement contractor bids, you should again write by certified mail to the original contractor and advise that if he does not return to complete/correct his work within five days (or advise in writing that he needs a reasonable amount of additional time), then you will default terminate your contract with the contractor, and hold him responsible for the money paid to the replacement contractor to complete/correct the original contractor’s work. If the original contractor returns and completes/corrects the work, the matter may be resolved. If not, retain the replacement contractor, and write a third time to the original contractor (by certified mail) and advise that your contract with the original contractor has been terminated for default, and that you will hold the original contractor responsible for the money paid to the replacement contractor. Unleash the replacement contractor, and have him complete/correct the original contractor’s work. The replacement contractor needs to keep track of the charges that relate to completing/correcting the original contractor’s work. You cannot charge the original contractor for costs that are enhancements or betterments. For example, if the original contractor was supposed to install a $100 fixture, you cannot charge for a $200 fixture. Once you have the itemized charges from the replacement contractor, you should write to the original contractor and present the charges for reimbursement. If the original contractor pays, or you negotiate an acceptable deal, then the matter is resolved. If not, you may have to file suit to collect your money. If the amount of money is within the jurisdiction of a small claims court, you may wish to file suit there, as you can file the suit yourself, the costs are low, and a court date is fairly quick. If the amount of money exceeds a small claims court’s jurisdiction, you should retain an attorney to undertake collection proceedings. The documentation and letter writing will be evidence in a collection suit.

    Good luck.

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  • Where do i find the proper documents necessary to file a auto mechanics lien

    Do you also help with business plans, & patents. Also, my business partner is of hispanic background. Is the federal government still working with the EOP laws when it comes to filing for a business loan?

    Brian’s Answer

    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.

    Good luck.

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  • What legal rights do I have as a future tenant

    I signed a lease 2 months ago with a new rental apartment unit. All was fine and we were due to move in in 2 weeks, I have booked movers, arranged services and our current lease is due to expire July 11th. I received an email from the new rental...

    Brian’s Answer

    If you cannot wait two months (or more) consider negotiating a resolution of the lease that you signed. Otherwise, the landlord may try to hold you to the lease even though you have given up on the property, and found an apartment elsewhere. In other words, do not blow off the lease. Tie up the loose ends and secure a termination of the lease.

    Good luck.

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  • How do I save my home from foreclosure from the HOA (in 2 wks.), while also challenging the claim that I'm behind on assessments

    The HOA has filed with the county an intent to foreclose in the next 2 wks. on my property for delinquent assessments, which I do not owe. I would like to challenge them on these very excessive charges and the way they have avoided due process by...

    Brian’s Answer

    You should consider paying the money under protest, reserving your rights to seek a refund in the future. That will save you a lot of legal expense in fighting the foreclosure, or trying to redeem the house later.

    After the foreclosure is withdrawn, you can file suit to seek a refund of some or all of what you paid.

    Good luck.

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  • A horse seller withheld information about horse having cancer do I have to honor payment after trying to return & seller denied?

    The seller was rushing the sell and once I got the horse home I removed the ponytails they had the mane in and discovered a tumor hidden in mane under the ponytails. I called the seller right away telling her about it and she admitted she knew abo...

    Brian’s Answer

    You need to write a letter by certified mail, return receipt requested, to detail the facts and the events. The letter can be evidence if someone has to file suit. The letter could also avoid litigation, and help dissuade the seller from seeking legal recourse. The letter could avoid an argument that the horse developed cancer after you took possession.

    Incidentally, you should consider stopping payment on the check, and returning the horse - the sooner the better.

    Good luck.

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  • What happen when the property has damages that was not disclose in the sale contract?

    I am the seller, the first buyer backed out in the 10 days period bc in that period roof had damages caused by hail and the buyer wanted too much money to fix it so no deal. My realtor sold the house to a new buyer, I told her that it was ok to di...

    Brian’s Answer

    I would be very wary of selling a home without disclosing problems or defects about which you know. You do not have to fix the defects or even to pay to fix the defects (it is a matter for negotiations with the buyer). But if you don't disclose the defects, you could face a claim for fraud or violation of your disclosure obligations under Texas law.

    It is probably not too late to disclose the roof damage, or to agree with the buyer that you will turn in a claim to your insurance company.

    Good luck.

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  • How binding is the 2 year statute of limitation on deceptive trade practice act? Didn't pursue at first due to illness/stress

    I recently discovered new details relevant to the case. My dad purchased a luxury car while very ill and extremely confused. It cost our family lots of money, plus loss of his other brand new luxury auto which had life insurance. Have note from do...

    Brian’s Answer

    The discovery rule could apply in some cases where the plaintiff had no reason to know of a claim. Seems like in your case, there may be a claim for fraud. The statute of limitations for fraud is 4 years.

    Proving damages may be a challenge. In fact, proving liability at this point may also be a challenge. Have an attorney review the paperwork to provide an assessment.

    Good luck.

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  • Sold dad's luxury car which he bought while confused. Does this constitute fraud, or is deceptive trade practices statute extend

    Looking for financial comp for the losses incurred. If my dad had kept his brand new luxury car, it would have been paid in full by insurance upon his death. He was terminally ill and very confused when he purchased the new luxury car with negativ...

    Brian’s Answer

    Your facts are not clear. Have you already sold the luxury car? If the car would have been paid off by insurance when your father passed, and he did not have long to live, why would you sell the car?

    What statute do you want to extend? The statute of limitations for fraud (and for breach of contract) is four years.

    Take your paperwork to an attorney for an assessment.

    Good luck.

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  • Can I file suit against an insurance company in small claims court for diminished value on a vehicle accident that was not my f

    The accident was a 2200.00 accident. It was not my fault and Farmers will not respond to my request to settle and close this claim. The car has been fixed and I have ask to file a claim with no response back.

    Brian’s Answer

    You do not indicate whose insurer is in question. You cannot sue another driver's insurer, as Texas is not a direct action state. You would have to sue the other driver and then secure a judgment against that driver for diminished value of your vehicle. Then it depends on the other driver's insurance coverage and policy. If you secure a judgment against the other driver, then at least the other driver is liable.

    if you are concerned about your own insurer, you have to review your policy to see whether it covers the claim.

    Good luck.

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  • Tortuous interference.

    If one called my employer in an employment at will with the intent to get me fired by lying about drugs could they fit. I understand it is defamation but could it also or alternatively be tortuous interference? My ex did it and made real headache ...

    Brian’s Answer

    In Sterner v. Marathon Oil Co., 767 SW2d 686, 688-89 (Tex. 1989), an employee claimed that Marathon improperly demanded that employee's employer fire the employee. The Texas Supreme Court stated:

    A cause of action exists for tortious interference with a contract of employment terminable at will. Texas law protects existing as well as prospective contracts from interference. C F & I Steel Corp. v. Pete Sublett & Co., 623 SW2d 709, 715 (TexCivApp -- Houston [1st Dist.] 1981, writ ref'd n.r.e.). We have held that the unenforceability of a contract is no defense to an action for tortious interference with its performance. A promise may be a valid and subsisting contract even though it is voidable. See Restatement (Second) of Contracts section 7 (1981). Thus third persons are not free to interfere tortiously with performance of the contract before it is avoided. A similar situation exists with regard to contracts terminable at will. Until terminated, the contract is valid and subsisting, and third persons are not free to tortiously interfere with it. Restatement (Second) of Torts section 766 comment g (1979). Sterner v. Marathon Oil Co., 767 SW2d 686, 688-89 (Tex. 1989)(employee claimed that Marathon improperly demanded that employee's employer fire the employee).

    Good luck.

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