We had previously filed a lien on a project, were talked into releasing the lien, subsequently billed retainage in May and they have still not paid the final bill for retainage which is now 90 days old. Can we file another lien or at least file a Notice of Intent to Lien to try to get them to do something? Thank You
Hello,
You may file a lien for whatever is still under the statutory timelines. Theto work that you were talked into releasing the lien for, you likely may not be able to lien again just because the deadline has passed.
Bonus, you have a fraud and fraudulent inducement cause of action you can add to your lawsuit now. This will pierce the corporate veil, allow you to tag the owner personally in your lawsuit, multiply damages, and survive bankruptcy if he tries to go that route.
E. Aaron Cartwright III
214.799.0776
Info@EACLawyer.com
You really should retain a construction attorney to evaluate your legal situation and to provide advice.
Assuming that you are discussing a commercial project (and not a residential project, and that you are a subcontractor, your deadline for filing a mechanic's lien for retainage is the 15th day of the fourth month after your indebtedness accrued. For retainage, "A claim for retainage accrues on the earliest of the last day of the month in which all work called for by the contract between the owner and the original contractor has been completed, finally settled, terminated, or abandoned." See Texas Property Code sections 53.052 and 53.053.
Depending on the circumstances, you may have a claim for the contractor's violating the Texas Construction Trust Fund Act, which can impose personal liability on the contractor's personnel with authority to determine whom to pay, if they misappropriated or diverted money from you.
Good luck.