I made the majority payments and downpayment on a land in commerce texas. upon divorce, my husband decided to file for bankruptcy in an attempt to get all of the community estate in a scheme to use his dad as a majority creditor. Instead, I purchased our one property, I didn't have in a trust, back from the bankruptcy court. A property I owned in a trust next door to this property was on a federal program where they pay you not to plant crops. The feds requested that I shred 26 acres and gave me a contact to do this work and said it would cost no more than 3k. I contacted their vendor; I told him the property was in a trust--he agreed to contract with trust and said he would do this closer to when he could get to the work. Instead, he just did the work and sent a bill for 9k, three times what it should have cost. They got a lien, filed suit, didn't sue the trust and then without notice to me or the trust, they foreclosed on the lien and sold the property. How to set aside?
If you never received notice of the lien or the foreclosure action or the sale, then you can move to set aside the default judgment on grounds of unfair surprise. But, you'll have to show the court how you would have likely prevailed on the merits had you been served notice.
I suppose that if this were all an oral contract, that you could claim that you never agreed to anything and that the vendor's actions were entirely fraudulent, i.e., he literally stole your real property to satisfy a fraudulent lien by way of a fraudulent judgment. That would also set aide the judgment -- and would likely result in a law enforcement investigation for at least three or four different felonies, I imagine. If that's what we're talking about here, then you should just contact the county prosecutor and file a report.
Otherwise, you'll need a lawyer to help you move to set aside the judgment.
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Socrateaser, was your practice in Texas, if so, can you help my current lawyer in Texas? I hate to waste all of the money I have paid him--he is smart, but disorganized and spread too thin. He just needs someone to ride herd on him and make sure this issue is resolved. He plans to cloud the title; contact the sheriff to find out why they ignored his fax regarding the improper sale; he plans to file a federal suit with federal question, diversity jurisdiction and an amount over 75k, since this was my IRA and the feds regulate retirement funds. The jurisdictions are multiple, since the property is in commerce texas, i'm in california and the ira trust company is in iowa. With a litte more experienced direction, I think he can handle this case, but with school and kids and lack of "real" legal experience, I'm overwhelmed. Please let me know if you co-counsel on such cases.
You must have missed the word: "retired," down there at the bottom of the page. But, I do appreciate your confidence, especially as I might be a 12 year old kid with no idea of what I'm talking about!
Seems as though your attorney is trying to create an incredibly expensive procedural mess, so as to force your opponents to settle before the cost of litigation outstrips the contract value. That's not a bad idea. The federal question would be jurisdictional in my mind, i.e., which state has authority over the exemption or lack thereof of an IRA, when the judgment is in TX, the debtor in CA, and the trust in IA?
But, it's sort of putting the cart before the horse, because if you get the judgment set aside, then none of this other stuff really matters. On the other hand, I have no idea of the scope of facts of the case, and your attorney does (or, at least he knows them better than me).
I'm talking too much. Sorry.
There are a few active Texas attorneys on this board. I will try to find one who may be interested. But, I wouldn't count on it.
Thank you.
Hi, the other expert sent me a message letting me know you needed help from a Texas attorney, but I noticed you already accepted his answer. Do you still need assistance?
Hi, yes I could still use some assistance. Thank you for your response. Here are the basics: I own two properties in Texas; both are in trusts--one is in a federal program not to plant crops and the other, next door, is being farmed by a sharecropper and that property is owned by a trust in Iowa which is trustee for my IRA. The local farm agency in Commerce told me I needed to have some work done to one of the properties, in order to remain in the no plant crop program. I told him I was in school and just went through a divorce and couldn't afford much; he indicated it was worth it to get the work done, since it shouldn't cost more than $3000-$3500 (one year of CRP program payments). The farm service agent gave me a list of vendors and put a mark on his choice of vendor. I called the trustee in Florida and asked if he wanted me to contact the vendor and do the ground work--he said ok and have the vendor write up a contract for the trustee to sign. I called the vendor and asked him to see the farm service man about the legal description and where to shred the growth (the farm service agent also sends all contracts, etc. to the trustee for signature). The vendor initially went out to the property in the summer of '06 and told me the cost could be around $3,000, but that it would definitely not exceed $5,000, but that he would get back to me with definite numbers when the time came to do the work, since he had to get eye surgery and would not be able to get to the work for awhile. I told him fine, that he should send me a contract when he was ready and I would forward this to the trustee for approval and signature. A month later, I had not heard anything. I called him and he said that he had done the job and would be sending me a bill. I was quite upset, because I did not approve this and he was to send a contract for the trustee to sign. I knew something was up, since why would someone just go on the property and do the work without a contract; I expected the worst--I told him he would have to bill my trust, and forward it to me--I got an invoice to the trust for $9000!!! I called and said I would write the trust and tell them the price this guy gave me would not exceed $5,000--Also, I got mixed up when he billed me, since I was so upset, and I told him the wrong trust name to bill- Based on the name of the trust, instead of getting the property description for the property on which he did the work or from the farm service agency whom he got all of his information initially, he went off of the trust name I gave him for billing and filed a lien on the wrong property--my property next door which is being farmed and not on the CRP program. The vendor then sued with the defending party as Lori Perry IRA and not me personally or the trust. I flew to Texas, took off from school and the judge started the case an hour late (2:30) and then told me that he had to leave by 4:00 for an appointment. Opposing counsel objected to everything and held up the clock; I lost the case and my attorney appealed. Also, the vendor stated in his complaint and invoice that he cleared "large timber" off the property. This was a bold-face lie and there were pictures to prove that there was no large timber--the judge ignored this fact. Everyone was definitely quite cozy in the Greenville Texas court room. In the meantime, my lawyer moved offices and the new address was noted on subsequent filings with the Greenville court and opposing counsel; despite this, they sent notice of foreclosure to my attorney's old address--I received no notice at all. The amount of the judgement was also incorrect--my lawyer said that it was for the amount of the lien plus attorney fees--but that the lawyer failed to plead this in the foreclosure judgment and would have to collect this elsewhere. From what I now understand, the sheriff's office told my attorney this morning that no one bid on the property and it was not sold on Tuesday. So, the question is, if both properties were in a trust, I am the beneficiary of both trusts and I could not and did not contract with this vendor (I can't contract for the trust), and I informed the vendor that he needed to draft a contract to the trustee and they sued me under Lori Perry IRA, instead of Lori Perry or the name of the trust, was this even a valid suit? Also they failed to conduct due diligence and they put a lien on the wrong property, based on billing information and not on the legal description on the property for which they did the clearning work, so is the lien even valid? Can I sue them in federal court to release the lien and for legal costs associated with an improper lien and for this vendor's fraudulent behavior (going on the property without a contract so he could inflate the cost and then put a lien on the property) and for my defending a suit which wasn't even in the name of the correct entity? I have an attorney in Dallas, but I need help making sure this is done properly--he is sort of a generalist. Any suggestions--can your office assist on such a case? What happens if they turn around and file another suit in the proper name of Lori Perry--should we sue now in federal court under diversity jurisdiction for improper lien and fraud--The property value exceeds 75,000 and it is my IRA under federal law--I did rely on the vendor's word, that he would send a contract to the trustee and then he took advantage of me and without authority or a contract to start, he exceeded the price that he said it would cost by 3X. Also, since the suit, the farm service agency rep is making me do work to the property and local farmers are telling me he is just doing it to harass me--that they don't require anyone to do much for the CRP program--this used to be the case, but now he is hounding me--if I did all he wants, it will far exceed what I get for not planting the property-so that defeats the whole purpose of the program. So what do you think of this mess?
You can contract, you just can't bind the trust. So he could sue you directly but to get anything against the property he would need to sue the trust itself, or actually the trustee on behalf of the trust.The lien is still valid, but probably not on the property if it is not in your name.I'm not sure why you would be able to sue in federal court since there must be a total diversity of parties. It would seem that the trust also needs to ba a party to the suit (a "necessary" party) and that would probably destroy total diversity of citizenship. Also, the amount in controversy is less than the required minimum for diversity of citizenship cases. While the property is worth more than the $75k the amoutn in controversy is the amount of the lien, not the value of the property.I don't know that the IRA being involved makes it a federal question.It sounds like a real mess all right. I am not allowed to take cases from the website, and we're not really supposed to refer, but I'm going to make a slight exception and tell you to call a guy named Dan Perkins in Greenville. A fine lawyer. Tell him a "fellow TTLA member from east Texas" told you to call him.You also need to talk to the trustee and see if he will agree to join in the suit since he really should be a party.Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR TEXAS ATTY” in the subject line and I will pick up the next time I am online.
Hi Texas Attorney--the lien is still good, despite being put on the wrong property--the property which he didn't work on? Don't you have to look up an address or something when you put a mechanic's lien on property or can they strictly rely on the client's mistake?
I don't know that I would say the lien is still good. I think it is good until challenged. Then, with the facts you've described, it shoudl fall apart.Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR TEXAS ATTY” in the subject line and I will pick up the next time I am online.