I filed monthly notices on projects I did not file Liens because we got a payment. The payment was returned NSF. Can I still file a lien even though the date has passed?
Hello,
This is tricky. Technically, you can always file a lien. However, the question is whether or not it would be removed as fraudulent or invalid.
With the date having passed, you are not in strict compliance with Chapter 53 of the Texas Property Code regarding the filing of a lien affidavit. However, the question here is whether you would have "substantially complied" with what the statute requires. There is an argument made that you did comply.
If you were to file and send the affidavit claiming lien, the first thing that would happen is you would get a call from a pissed off GC or property owner. They would tell you that you were past the deadline and your lien was invalid and they would try to bully you into removing it voluntarily. You can if you want. HOWEVER, to have the lien removed, they have to sue you in District Court. That gives you the opportunity to find yourself a lawyer and file a countersuit for breach of contract and violation of the Prompt Payment Act to show them you're serious.
100% of these cases go to mediation so you can merely tell the mediator that you will release the lien in return for the funds that should have been given to you in the first place but were given on a bum check. If it gets to trial, they MAY succeed on having the lien removed (maybe) and you have a high likelihood of recovering on breach of contract and the PPA violation. In my experience, this wouldn't make it to trial. Someone will settle.
E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com