A licensed General Contractor was hired to remodel my bathroom. He was fired and wasn't paid the monies he felt he was owed, so he put a Mechanic's Lien on my home. He took me to small claims court and the court declared we don't owe him anything. I have emailed him to remove the lien and have had no response. I've also sent him a certified letter requesting he remove the lien. It's been several weeks and he still hasn't claimed the letter. I want the lien removed so I can begin refinancing my current home loan. I know I can hire a lawyer to petition the court to remove the lien, and then I begin the vicious cycle of then suing him. Can I put a lien on his property? Can I recover ALL the lawyer fees if I do that? What if he files bankruptcy so he won't have to pay?
Real Estate Attorney
Your remedy is to file a Petition to remove the lien if the Contractor fails to file suit to foreclose the lien within 90 days of recording it. If you are the prevailing party, you have the right to recover costs and reasonable attorneys fees as set by the Court. See California Civil Code section 8480 et seq. You may want to hire an attorney to send him a letter enclosing a lien release and informing him of what will happen if he does not sign and reture the lien release.
This answer does not constitue legal advice, nor does it creat an attorney/client relationship. If you are seeking legal advice upon which you intend to rely, you should hire competent cousel familiar with this area of the law in your locale.
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3 lawyers agree
Can I put a lien on his property? -- No. You do not have a judgment for money.
Can I recover ALL the lawyer fees if I do that? -- Probably not.
What if he files bankruptcy so he won't have to pay? -- That is always a possibility. However, all you are entitled to at this point is to have the lien removed. If you get a judgment in your favor you are entitled to attorney's fees and costs but a bankruptcy would prevent you from collecting.
File a complaint with the CA State Contractor's License Board. Retain an attorney to get the lien removed, if necessary. Relatively new legislation removes the cap on attorney's fees necessarily incurred to remove the lien.
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3 lawyers agree
I would agree with the other counsel!
Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.
If you have a certified copy of the Court's order or Judgment determining that you did not owe the lien claimant, you should be able to refinance your property without a problem. I would suggest that you start the refinance process now. If the preliminary title report still shows the mechanic's lien, provide the title officer with the Court's ruling, and insist that the lien be removed from the exceptions to coverage. A Court order dismissing a mechanic's lien claim can also be recorded to clear title.
2 lawyers agree
Construction / Development Lawyer
Petition the court for an order to release the mechanic's lien. The contractor has to pay you lawyers' fees for this order because the dispute was decided in small claim. Edward C. Ip www.lawyer4property.com
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