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why file a mechanic's lien when opposing counsel simply threatens cross legal action?

California

We have placed a mechanical lien on a third person's property due to a non-full payment, after a court appointed Receiver of the third person's property committed fraud and did not properly pay us in full. We filed to enforce the lien and now opposing counsel has said the following: As it sits now, unless your client (ME) recovers $48,000 or more, it constitutes a slander of title which, as I am sure you know, could result in substantial monetary damages and attorney's fees. There are several ways to resolve this. I could bond the lien. However, the bond premium becomes a cost and again, unless your client recovers more than $48,000, he pays the premium. A second way would be for me to file an action against your client to expunge the lien. Because it is on a third party's property and your client's contribution to the project was not a permanent improvement, but rather a service, and also because of the contract language spelling out the overweight charges, which have been paid, I would expect the court to expunge the lien and defer the matter to the arbitration. If that happens, your client gets stuck with the costs and attorney's fees. The final approach would be to have your client release the lien and we can defer the matter of payment, if any, to the arbitration. Why bother filing a mechanical lien if opposing counsel threatens this type of action even though we are valid with our lien?? We are a Dumpster Rental Business and as such do not need to be a contractor to file a lien per Levelset. Opposing counsel says that removing 102 tons of debris from a property is not a "permanent improvement." How is this even possible??

1 reply

Dec 6, 2022

Attorneys frequently make such threates when it comes to liens. I am not aware if a "Dumpster Rental Business" can file a lien or not. A C-21 Demoltion contractor can, and suppliers (who don't have contractors licenses, like lumbar yards) can, so the attorney's argument that you cannot does not make a lot of sense. It's a creative argument, and he may be right, so you or your attorney could ask him for the Statutes and Case Law that supports his argument. If he can't provide it, or says the burden is on you to prove your case, then he may just be using smoke and mirrors. 

Regardless, there are strict requirements to enforcing a foreclosure action based upon a lien, and it sounds like the attorney is going to make it as difficult as possible. So, recommend you consult with a local construction law and/or property law attorney immediately. 

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