Owner/landlord (“Owner”) of commercial multi-tenant property in Texas leased unimproved space to Texas business owner tenant (“Tenant”) for 36 months. Approx. $140K TI anticipated. Lease included a provision whereby: -Owner would contribute cash ($75K) for TI/buildout only, no involvement w/contractor(s), -Tenant would find, hire, manage, pay balance to Contractor to complete TI/buildout. Just before 1st year of lease was up: -Contractor TI buildout 90% complete and paid for using all $75K Owner contribution + Tenant funds for balance owed -Tenant business failed at the location and Owner and Tenant terminated lease by agreement -Notice was provided to Contractor re lease termination, stop buildout. Tenant had NO written contract with Contractor. However, Contractor invoices for materials and work done and corresponding payment records are available and accounted for. Does this add up to a written contract? Would the records equal a contract for the 90% of TI/buildout completed or for the whole enchilada, that is the anticipated and remaining materials and work too…? Contractor claims all TI/buildout complete and demands payment for remaining 10% (+$9K) from Tenant. Tenant (now the ex-tenant) and Owner dispute Contractor’s claim/demand, contend that problems exist with completed TI and 10% of improvements are incomplete. Also, no written contract between Tenant and Contractor, in TX... Contractor hires law firm/attorney to demand payment from Tenant and/or Owner. Tenant’s attorney talks with Contractor’s attorney to see if issues can be resolved. Contractor’s attorney requests payment, sends demand letter, and files Affidavit Claiming a Lien against Owner's property and improvements, in TX county where Owner’s property is located. Lien affidavit indicates lien is claimed by Contractor against Owner’s property and improvements. Contractor’s demand and claim (now lien) remains disputed by Tenant and Owner. Tenant’s attorney continues efforts to contact Contractor’s attorney but is no longer able to make contact. Tenant is almost immediately contacted by the following: Chris Reed Legal Review/ Processing Tucker, Albin & Associates, Inc. 1702 N. Collins Blvd, Suite 100 Richardson, Texas 75080 972-808-7690 Office 554 (214) 865-7166 FAX www.TuckerAlbin.com Mr. Reed and his employer are notoriously aggressive debt collectors. They refuse or are not authorized to negotiate on behalf of Contractor and have resorted to collection efforts bordering on, and possibly including, harassment of Tenant business owner and various uninvolved employees. Contractor’s attorney has apparently been discharged and the claimed debt turned over, possibly sold, to this collections company. This company has a massive amount of complaints against them collected by multiple authorities in multiple states and were even fined $500K for harassment a few years back in another state. Both the particular collections agent and the company can be easily found in a simple internet search. Advice regarding how to dispute/remove/contest and handle the lien, dispute the debt claimed by the Contractor, and how to control or terminate the debt collections company and agent’s activities would be most appreciated.
Your options are going to vary on a party-by-party basis. The tenant is likely in the more difficult position with respect to disputing the contractor's claim. The owner should be demanding that the contractor release the lien against the owner's fee interest in the property because the contractor's lien likely only attached to the leasehold interest of the tenant. You should retain a knowledgeable construction lawyer to gain a full understanding of your options.
I have dealth with Tucker Albin before and been successful in getting them to back down. To address them, your attorney will need to send them a certified cease and desist notifying them of representation. The calls will stop and you can deal with them as normal.
The information you have provided is sufficient, in my opinion, to establish both contract and quasi contract. Under Texas Property Code § 53.001:
"Completion" of an original contract means the actual completion of the work, including any extras or change orders reasonably required or contemplated under the original contract, other than warranty work or replacement or repair of the work performed under the contract.
Under this definition, the argument should be made that the contractor should be paid for what has been completed not the full balance of what is owed because the contractor expended no funds on labor or material for the incomplete parts.
In all likelihood, the contractor spent the money they were given and need the last part to make their "profit" on the job. Was retainage withheld during the project?
There is a possibility that the lien itself is invalid against the commercial landlord/owner.
Based on the facts you have given, the only bundle of sticks owned by the Tenant was a leasehold interest in one space of the commercial property. If the Tenant requested repairs be done and did not pay for them, the Contractor may only lien the leasehold interest of the Tenant. Usually, leases contain a No Lien clause that holds the tenant in default of the lease if a lien is filed. Also, what will usually happen if the Tenant causes a lien to be filed is that the Landlord will terminate the lease and the Contractor will have what remains of the leasehold after termination... which is nothing. There are a LIMITED FEW situations in which a contractor can pierce that relationship and they usually involve the landlord paying the contractor directly, supervising the improvements, or otherwise managing the contractor.
In this situation, the Tenant's leasehold interest was voluntarily terminated. The contractor has no avenue of recovery through the commercial property because, based on the limited facts here, there is no significant connection between the Contractor and the Landlord.
Further, Tucker Albin's people do not seem to realize that an affidavit claiming lien is not, in and of itself, something someone can collect on. For them to have a debt to collect, they need a judgment. A lien is not an order from a court, a signed guarantee for the debt, or anything else that should allow them to collect. It's not even affirmative proof that a debt is owed. Someone is literally just claiming they are owed a debt. The person claiming needs to enforce the lien in a court of law and then the full amount will be decided, if there even is an amount owed. Tucker Albin are being assholes because they can be and someone needs to correct them.
I would begin with a summary motion to remove invalid lien and argue that the lien against the commercial property is an overreach. The actual lien should be against the Tenant's leasehold interest which is terminated. Include the former Tenant in the lawsuit or have them designated as a responsible third party and argue the empty chair (as we like to call it). Tucker
Tucker Albin is not going to litigate, they are going to hire outside counsel who is going to have to actually advise them of what they're up against.
We are more than happy to take a look at all the facts and give you a better idea.
E. Aaron Cartwright III