The judgment has not been satisfied and the judgment debtor is demanding that the release of lien be executed before payoff of the judgment. The debtor has sent a certified letter to me (creditor) stating the intent to release the lien with the Court if I did not contact the debtor to settle the judgment. However, the debtor did not include a copy of an executed affidavit to release the lien with the certified letter. The debtor has now been corresponding with me in an attempt to pay but is demanding the executed document before payment. I am requesting payment before executing the document. Will the court mediate in the transfer of funds? If payment is not made, how do I go about filing a contradictory affidavit if the debtor chooses to file an affidavit for release of lien?
If the abstract of judgment has created a lien against the judgment debtor's homestead, you may be in trouble.
The property at issue may be the debtor's homestead if the house is in the debtor's name and the debtor lives there. If so, an abstract of lien filing does not create a valid lien on the debtor's homestead.
If the abstract of judgment lien is improper, and the debtor has written a letter by certified mail to demand that the lien be released, pointing out that the property is the debtor's homestead, you need to execute a partial lien release. If you do not voluntarily release the lien, you could be liable for a fraudulent lien under Chapter 12 of the Texas Civil Practice & Remedies Code. Chapter 12 can award damages of $10,000 or actual damages whichever is greater, plus attorney's fees.
The debtor may also demand that the lien be released under Section 53.160 of the Texas Property Code, which provides for a summary procedure (no trial necessary) for the removal of an invalid lien on someone's homestead.
The court will not usually act as a mediator, although you and the debtor could schedule a mediator with a real mediator. Or, you could have the debtor pay the money in escrow to a title company to hold in trust in return for an executed lien release.
The debtor will not likely file an affidavit for release of lien (as you state). The debtor could file suit under Texas Property Code section 53.160, as noted above. That would be a suit, where you can file an answer or otherwise respond.
I strongly suggest that you retain an attorney to help evaluate your legal position before you incur any liability for an invalid lien.
I have a lot of mechanic's lien materials (the law, notice forms, deadline charts, etc.) at my web site, The Construction Report. The web address for The Construction Report is:
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Mr. Erikson's answer above is very good. You should consult a lawyer quickly to find out your legal rights and avoid possible problems. That being said, the reason that you file an abstract of judgment is to get to the point where the debtor is trying to sell something and they can't. It is at that point that you have negotiating power - provided you do not make a mistake and give them a right to sue you! It is not uncommon to execute a release and give that release TO THE TITLE COMPANY in exchange for getting paid at the closing (again assuming that this is not a homestead situation). If you decide to do this, you should make sure that the title company has clear instructions that they are not to give the release to anyone else and are not to file it unless you are paid. You really, really need a lawyer to help you. I urge you to get one.
The above comments are based only on the information presented in your online question and are not meant as specific legal advice and should not be relied upon by you as legal advice. There may be other facts which would impact your situation which may not be included in your question. I have not been retained as your lawyer, and I do not possess enough information to give you a legal opinion on the outcome of your dispute nor can I completely answer your question without an opportunity to fully discuss all of the facts of your situation. I can only be retained as your lawyer by both of us signing a written engagement letter. You should retain a lawyer to advise you before making any decisions relating to the issues raised in your online inquiry. You should retain a lawyer quickly, because there may be time limits which impact your legal situation. I HAVE NOT PROVIDED ANY LEGAL ADVICE TO YOU AND URGE YOU TO GET A LAYWER. I provide a free initial consultation. If you are interested in talking with me, please call 713-666-1981.
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