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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have a mechanics lein on my home because I lost my job before

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I have a mechanics lein on my home because I lost my job before the home was completed. Now they want to sell it. But I noticed the contractors contract did not have any dates on it, i.e. payment dates, completed dates. Can I file a motion to stop the sherrifs sale b0ecause of this?
Submitted: 3 years ago.
Category: Legal
Expert:  TexLaw replied 3 years ago.

Zachary D. Norris :

Hi,

Expert:  TexLaw replied 3 years ago.
The fact that the contract does not contain any dates of completion or dates for payment could potentially provide you with a defense to a claim for breach of contract. However, in your case, the question is simply was the contractor paid for the work performed. If the contractor has not been paid, then they are entitled to place a lien on the property. If the value of the lien is essentially the entire value of the house, then it can be foreclosed on. Thus, the point you raise regarding a potential deficiency in the contract does not give you a basis to stall the foreclosure. Your best choice is to attempt payment or to try and work out another deal that will buy you some time with the contractor.

Please let me know if you need clarification or have another question related to this issue and I will be happy to assist you.

Best Regards,
Zachary D. Norris
Customer: replied 3 years ago.
The house right now is worth $250 k and I owe $100k but it's not completed. Roof not finished windows not in etc I'm looking to buy time to get a loan and his lawyer won't budge.
Expert:  TexLaw replied 3 years ago.
I'm going to research the details of the mechanic's lien statute in Massachusetts. I will get back to you with an answer within 12 hours.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 13 other Legal Specialists are ready to help you
Expert:  TexLaw replied 3 years ago.
Under the Massachusetts Mechanics Lien Statute:

http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleIV/Chapter254/Section2A

The contractor is supposed to file a notice with county or district clerk (where the property deeds are filed in your locality) which states that the work has been substantially completed. The contractor's lien is not technically good unless the contractor can confirm that the work is substantially complete. The law states that substantial completion means that

The law states the following on how the contractor can enforce the lien:
Section 5. A lien upon land for the erection, alteration, repair or removal of a building or other structure or other improvement of real property or a lien established under section seventy-six of chapter sixty-three, section six of chapter one hundred and eighty-three A, or subsection (a) of section twenty-nine of chapter one hundred and eighty-three B shall be enforced by a civil action brought in the superior court for the county where such land lies or in the district court in the judicial district where such land lies. The plaintiff shall bring his action in his own behalf and in behalf of all other persons in interest who shall become parties. An attested copy of the complaint, which shall contain a brief description of the property sufficient to identify it, and a statement of the amount due, shall be filed in the registry of deeds and recorded as provided in section nine within thirty days of the commencement of the action, or such lien shall be dissolved. All other parties in interest may appear and have their rights determined in such action, and at any time before entry of final judgment, upon the suggestion of any party in interest that any other person is or may be interested in the action, or of its own motion, the court may summon such person to appear in such cause on or before a day certain or be forever barred from any rights thereunder. The court may in its discretion provide for notice to absent parties in interest. The terms “party in interest” and “person in interest”, as used in this chapter, shall include mortgages and attaching creditors.

Essentially what this means is that there is a trial. I'm not sure where you are in this process. You mentioned the possibility of a sheriff seizing your house. If you are at this point in the process, that means its probably too late to be able to fight as there has been a judgment issued against you.

If there has not yet been a judgment issued against you, then you need to go to each and every court proceeding. You need to argue that the contractor did not "substantially complete" the house and that you can't use it because it is not complete. If the work is not complete, then they don't have a right to execute the lien.

The contractor had to serve you with notice by certified mail that he had a lien on the house (see the statute). If he did not follow the procedures with serving you with notice of the lien, then he does not yet have the right to execute on the lien.

If possible, you need to go to court and argue that the lien is not enforceable because you did not get proper notice of the lien as required by the statute and the work is not substantially complete. You need to file an "Answer" to the lawsuit filed against you and state that you "generally deny each and every, all and singular, allegations in Plaintiff's petition." You also need to state that you deny that the Plaintiff has complied with the requirements of the mechanic's lien statute in regard to notice. Also state that the Plaintiff has not substantially completed the work it promised to complete under the written agreement and thus is not entitled to enforcement of the lien.

If at all possible, hire an attorney to represent you. However, it sounds like money may be tight and this might not be possible, so you will have to represent yourself. When people come to court the judge will generally help you. Don't let the contractor's attorney run over you. If you stand tough and make arguments against them, then you may be able to negotiate enough time to find a loan to pay the contractor.

I hope this helps. Let me know if there's anything else I can do for you.

Best Regards,
Zachaary D. Norris
Customer: replied 3 years ago.

I believe I am going to file an answer because I did not get proper notification of my ability to answer in the first place. Because I would have argued that there is no dates to pay or dates of completion on the contract. Aslo, what if I have a signed P&L before the sherrif's sale?

Expert:  TexLaw replied 3 years ago.
You need to be sure that they actually served you with a lawsuit. If they did not serve you with "process", you need to file a "Special Appearance" objecting that there was "defect in service of process" and swearing that you were not ever served with the lawsuit and ask that the case be dismissed until then.

However, It sounds like you may be too late. If the sheriff's sale of your home is pending, this means the sheriff is acting on a judgment.

In that case, you need to file a Motion to Stay the Execution of Judgment arguing that you were never served with the lawsuit, the court never had proper jurisdiction over you and that this is a complete injustice. You also need to then file a Motion for a New Trial.

What may have happened is that the court granted a "default judgment" against you, as you never appeared and filed an answer. This could be the result of the fact that the Plaintiff falsely represented that it had obtained service on you, or by the fact that somehow you misunderstood that there was a lawsuit pending on you.

Either way, you need to act quickly. I'm not sure what you mean by "P&L". That generally means a "Profit and Loss" Statement, and in this case I'm not sure how that would come into play.

Finally, when you argue that the contract did not have set dates, what you are really arguing is that there in fact was no contract, so you are not in breach of it and the Plaintiff did not follow the proper procedures for executing a mechanics lien on an oral agreement. The bottom line will always be that you have to pay for the work unless the contractor did not do a good job or somehow breached the agreement between you two.

Good Luck,
Zachary D. Norris
Customer: replied 3 years ago.
I am going to file a stay of execution and a motion for a new trial tomorrow at the superior court where this is filed The sale is set for Thursday the 20th. Also, I want to thank you in this process... you have been a lifesaver ! What I meant was a P&S, not P&L. If I have a signed P&S agreement in hand, does that stop the sherriff's sale automatically?
Expert:  TexLaw replied 3 years ago.

Well...your not out of the woods yet. The motions you are filing are the procedures needed to get a chance to stop the sale. However, they are not a guarantee. In the end, it is up to the judge. Remember to ask for an emergency hearing when you file the motions as the sale is taking place on the 20th.

 

In regard to a Purchase and Sale Agreement, this will not extinguish an executed lien with a judicial sale order unless the Agreement is between you and the contractor.

 

I hope you are able to stop the contractor from executing. Good Luck,

ZDN

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