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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 27692
Experience:  Lawyer
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To get a bit of backstory, we were one of the dozen families

Customer Question

To get a bit of backstory, we were one of the dozen families that were scammed by this company: http://www.click2houston.com/news/pool-for-special-needs-boy-left-unfinished-when-contractor-disappears/34428608
Long story short, we paid 95% of our $50,000 contract and they left town, leaving over $15,000 of work to be completed on our pool. We are now receiving intent to lien notices from the subcontractors who did work on our property and were not paid by the General Contractor. Apparently, this is fully legal in the state of Texas (Fort Bend County) and we are trying to find any missing links of information. Somewhere I read that the lien had to be filed within 20 days of work completed; we just received a letter from a company who left the project on May 29th. I also read that these can expire or be released after 16 months and have no idea if that is true. We need to know what to do and if we actually need to re-pay for our entire pool to these subcontractors or if there is some legal loophole we are missing. Thank you! Lauren and Elvin Sotomayor
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Lucy, Esq. replied 1 year ago.
Hi Lauren and Elvin,

My name is ***** ***** I'd be happy to answer your questions today. I'm sorry to hear that this happened.
Tex. Prop. Code, Section 53.052(b) says that a person requesting a mechanic's lien on residential property must file an affidavit within 15 days after the third month after the debt arises. Under Section 53.053, a debt to a subcontractor arises at the end of the month after the work is done. So, a lien for work completed in May could still be filed in August. I'm not sure where you saw that 20 days, but that's not what the statutes say. The relevant statutes can be found here:
http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.53.htm
Then, after the affidavit is filed, they have 5 days to send it to you. Section 53.055. He is required to have given a notice to the original contractor a month earlier, under Section 53.056. You have the right to ask for proof that this earlier claim was made - that might help you.
Section 53.160 gives you the different defenses you can raise if they try to foreclose the lien:
(1) notice of claim was not furnished to the owner or original contractor as required by Section 53.056, 53.057, 53.058, 53.252, or 53.253;
(2) an affidavit claiming a lien failed to comply with Section 53.054 or was not filed as required by Section 53.052;
(3) notice of the filed affidavit was not furnished to the owner or original contractor as required by Section 53.055;
(4) the deadlines for perfecting a lien claim for retainage under this chapter have expired and the owner complied with the requirements of Section 53.101 and paid the retainage and all other funds owed to the original contractor before:
(A) the claimant perfected the lien claim; and
(B) the owner received a notice of the claim as required by this chapter;
(5) all funds subject to the notice of a claim to the owner and a notice regarding the retainage have been deposited in the registry of the court and the owner has no additional liability to the claimant;
(6) when the lien affidavit was filed on homestead property:
(A) no contract was executed or filed as required by Section 53.254;
(B) the affidavit claiming a lien failed to contain the notice as required by Section 53.254; or
(C) the notice of the claim failed to include the statement required by Section 53.254; and
(7) the claimant executed a valid and enforceable waiver or release of the claim or lien claimed in the affidavit.
They have one year to bring a lawsuit after you were notified of the claim. If the subcontractor does not sue to foreclose the lien within that period, you can seek to have the lien removed. Tex. Prop. Code, Section 53.158(b).
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