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Home>Levelset Community>Legal Help>In Texas, can a mechanic lien filed by the general contractor of a new house be considered superior or on par with the deed of trust if, the mechanic lien contract, the affidavit of commencement (which stated the start date as of the day of filing), and the deed of trust were filed at the same time with the mechanic lien contract being first on record? Also, there are some discrepancies in facts on both documents.

In Texas, can a mechanic lien filed by the general contractor of a new house be considered superior or on par with the deed of trust if, the mechanic lien contract, the affidavit of commencement (which stated the start date as of the day of filing), and the deed of trust were filed at the same time with the mechanic lien contract being first on record? Also, there are some discrepancies in facts on both documents.

TexasLien DeadlinesLien ForeclosureLien PriorityMechanics Lien

hired as general contractor for new home on lake Athens, Texas. Homeowner only borrowed 80,000 from the bank and was to have the remainder of cost himself. he did not and ran out of money. he then fired me. he owes me 27,000 dollars. I have taken him to court and have a judgement for 27,000.00. Then bank is now going to foreclose this tuesday (11/7/2017). I believe I have a superior lien to the banks lien since it was filed after the mechanic lien and an affidavit of commencement is for the date it was filed. Homeowner name is Terry J. Scott and all documents are filed in Henderson county Texas. I hope someone can help.

1 reply

Nov 6, 2017
Presumably, since there is a judgment for $27,000 outstanding and the property hasn't yet been foreclosed, the action initiated giving rise to the judgment wasn't an action to enforce the mechanics lien. This is a bit odd. To be thorough, the judgment should be filed in the records of the county in which the property is located, such that a judgment lien can be obtained - but since there are other prior liens, this may not do too much. The priority of the mechanics lien is a different matter, though.

In Texas, the priority of a properly filed mechanics lien is based on the lien's inception - which is determined by the earlier of one of a few different possibilities: 1) the commencement of visible construction of the improvements; 2) the first delivery of materials to be used in the construction of the improvements to the property; or 3) the recording of an affidavit of commencement. A compliant affidavit of commencement is prima facia evidence of the date of commencement.

Texas mechanics liens have priority over other encumbrances on the property including construction loans and mortgages if the competing encumbrance is recorded after the inception of the mechanics lien as determined by the date above. Accordingly, if the commencement of the work / date of commencement on recording of the notice of commencement was prior to the recording of the deed of trust, the mechanics lien would likely have priority.

With the shortened time-table, you should immediately obtain a lawyer to represent you, and get some emergency motions filed. It is unclear if the bank is actually having the property sold on 11/7 or if they are initiating the foreclosure proceeding, but either way, it appears that you are under the gun here.
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