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Failed to send monthly notices. Intent to file sent. Is a lien/collection action still possible?

TexasRecovery OptionsRight to Lien

We are a commercial glass subcontractor. Invoice was sent in October. Intent to file notice sent in December. We're still not getting paid as of today. I would like to know what else we can do at this point. I am filing on behalf of my employer.

1 reply

Feb 7, 2019
That's a good question, and I'm sorry to hear you've had trouble getting paid on this job. Further, I'm glad to hear you sent a Notice of Intent to Lien - that's often a really effective tool to compel payment. Regarding notices - Texas' notice requirements can be a real nightmare, and if notice is not sent, a claimant won't be able to file a valid and enforceable mechanics lien. That's not to say that a lien can't be filed - a recording is still possible, and such a recording could potentially lead to payment. However, if push comes to shove and the lien is challenged or must be enforced, there's a high likelihood that the lien would be held unenforceable. In such a situation, there's a chance that a claimant would open themselves up to liability for damages caused by the lien filing. However, when a debt is actually owed, typically such a filing won't rise to the level of a fraudulent lien. Of course, recall that outside of the mechanics lien process, there are other options to recover payment. For one, threatening legal action (such as breach of contract, unjust enrichment, or a claim under the Texas Prompt Payment laws, to name a few potential options) can go a long way toward compelling payment. Nobody likes dealing with a lawsuit, so much like a Notice of Intent to Lien can help compel payment before a lien filing becomes necessary, threatening suit can also work toward receiving payment. This is especially true when such a threat is coupled with a demand for payment and sent via attorney letter. But, if threats to take action aren't enough, a claimant might need to consider taking the claim to litigation (or even small claims court, depending on the sum). Regardless - when a debt is owed and unpaid and the mechanics lien process might not be available, it may be wise to consult a local construction attorney so they can review the circumstances of your situation and provide advice on how best to proceed.
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