Hi, i am needing advise on where to go after filing the Affidavit of lien on homestead by original contractor. I have close to 16k in unpaid material and labor. The homeowner today hired a new person to finish up the work and refuses to pay us. I want to move forward with foreclosing on the property. Can I?
The legal analysis would start with a review of your contract with the owner, and then extend to any communications which have occurred.
If the property is the owner's homestead (meaning that the owner owns the property and lives there) then your contract with the owner would have to satisfy the requirements of Texas Property Code sections 53.254, et seq., which requires specified homestead lien warnings, signing by husband and wife, and recordation in the county property records.
You really should retain a construction attorney to review and evaluate your legal position based on the contract and pertinent documents. The right to be entitled to file a mechanic's lien is set out in Texas Property Code Chapter 53, and you really need to make sure that if you file a lien, you have properly and appropriately done so.
Filing an invalid lien could subject you to liability under the Texas Fraudulent Lien Act, and you could be liable for statutory damages of $10,000, or actual damages, whichever is greater, plus attorney's fees. Facing such a claim would add insult to injury.
You should consider preparing a letter to mail by certified mail, return receipt requested, to the homeowner to set out the facts and to demand the relief that you want. Attach to the letter your invoice, and photographs of the completed work. Make sure that your letter is professional and business like as it may be evidence later.
If the customer does not respond or respond satisfactorily, you should consider filing suit in small claims court, using the letter as evidence.
Good luck.
Hello,
Since you have already filed a lien, you should NOT file suit in small claims court. District Court has original jurisdiction.
The next step is to file suit in District Court for breach of contract, quantum meruit/promissory estoppel, violations of the prompt payment act, Rule 185, and foreclosure (if the paperwork is correct).
E. Aaron Cartwright III
214.799.0779
Aaron@EACLawyer.com