I filed a timely mechanic's lien on a property in Montgomery County, TX. What is my next step to collect?
The owners are divorced and selling the home. There is a Homestead on the property but they have not lived there since August of 2011. Hence, no Homestead. How do I enforce my lien with them still refusing to pay? The contract was for 25% completion payments through the repair and remodeling process. They paid just over 50% and I have completed 90% of the job plus extras. The contract was never signed by the owner. It was emailed and agreed on.
You may or may not have a valid mechanic's lien. I would need to know a lot more facts.
To collect from the owners, you probably need to file suit. If the amount owed is less than $10,000, you can file in small claims court. If it is more, you will have to retain an attorney to file in county or district court. If the mechanic's lien is valid, your attorney can include a request for recognition of the lien as an encumbrance on the property, and court approval to be able to arrange for a sheriff's sale of the property after you secure a judgment against the owners.
The fact that the contract was never signed, could be a proof problem. But payments by the owner and your performance of most of the contract can help establish the existence of the contract and the contract terms.
Since you did not fully complete, you need to make sure that your attorney pleads quantum meruit and/or substantial completion and/or that the owners' breach of contract excused you from full completion of the work. Otherwise, you may face a defense of incomplete performance on your part.
Filing a lawsuit to foreclose the lien claim in a Court of competent jurisdiction and venue is your next step, if you have a valid lien and are within the statute of limitations. However, there are several issues of concern that must be first addressed, such as whether you have a valid contract which allows you to claim a lien against a homestead, whether you sent all of the required notices, and whether you are a general vs. sub contractor on the project, just to name a few. You should immediatly seek the advice of a qualified real estate/litigation attorney who regualarly deals with Texas mechanic's lien laws. You may also need to have someone review the Ch. 43 of the Texas Business & Commerce Code concerning the Texas Uniform Electronic Transactions Act for dealing with signatures and current case law using the Electronic Transactions Act in conjunction with the Mechanic's Lien Laws. This is an extremely complicated area and there are potentially severe penalties associated with filing a fraudulent lien. That's not to say one way or the other that your lien is fraudulent, as I don't have enough information to made a determination one way or the other. However, you have indicated certain facts which would require further examination of each of the above issues.
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1. Assuming your lien is valid, you must now foreclose on the lien. If you did not hire an attorney, then I would assume your lien is invalid. Filing liens correctly with the necessary notices and making sure those notices went to the right person with proof of service is difficult.
2. File suit against the owners.
3. You have a contract based on performance but as to exactly you were contracted to do and how much you were to be paid is uncertain.
4. Don't start a job without a signed contract.