Hi my name is Fernando Lovera I was hired by a subcontractor in Texas to supply specialty glass for a non residential Job my invoice was done in September 22 of 2021 and I forgot to send the second notice! And I'm having trouble to collect the balance due What Should I do?
Hi Fernando,
If you are a subcontractor with a contract with the general contractor, one notice letter (commonly referred to as the third month notice letter) may be all that is necessary so long as it was sent timely. Any lawyer will need to analyze the situation to determine your lien options, but all hope is not necessarily lost.
Even where a lien is not available, you can still hire an attorney to issue a demand and/or file suit to recover what you are owed. It is very often the "squeaky wheel" that gets paid.
Happy to discuss this with you further in a confidential call/setting.
Very best,
Ben House
281-762-1377
ben@houseperron.com
The legal analysis would start with a review of your subcontract, and then extend to any notices that were provided and to your situation on the project, and the type of project. The notice deadlines are different for commercial versus residential projects.
Your situation may also be complicated by your providing for specially fabricated materials, which could require a different sort of notice.
Assuming that you subcontracted directly with the original contractor (the one who contracted with the owner), and that the project was a commercial project, you would be required to provide notice to the owner and original contractor by certified mail by the 15th day of the third month after the end of the month in which you provided materials to advise as to your account receivable, and to trap funds in the owner's hands.
If the project was residential, the notice would be required by the 15th day of the second month.
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.
Good luck.