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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 87565
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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how can I stop a creditor threatening placing a lien against

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how can I stop a creditor threatening placing a lien against my residence when the job was not completed since 12 months ago. Do I place a bond at the public records against this company or force them to sue me. Please advice
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please clarify:

What happened and how did the fail in their contract?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

Twelve months ago a company was going to place window tinting to windows in my house. I signed a contract that they were going to do this for $8,000. They never completed the job. The contract was no payments for one year no interest if payed in full 12 months later. I contact them many times advising them to stop payment to the company since job was not done. Now they say I signed therefore I owe. I am being threatened by them of a lien against my home for the total amount plus 30% interest compounded etc. My question is how can they be stopped without me being ripoff the $8,000.


 

Expert:  Ely replied 1 year ago.
Thank you, friend.

What you have here is arguably breach of contract on their part. Breach of contract may be minor, or material.

A minor breach is substandard performance but one that does not cancel the contract.

A material breach goes to the "heart" of the matter wherein the performance is so bad, or nonexistent, that it validates the other party walking away from the contract.

Is it a minor or material breach? The Court would decide based on the following subjective factors:

1. The extent to which the injured party will be deprived of an expected benefit
2. The extent to which the party can be adequately compensated.
3. The extent to which the breaching party will suffer forfeiture.
4. The likelihood that the breaching party will cure their failure
5. The good faith of the breaching party.

This sounds like a MINOR breach of contract, which allows one to pay LESS - only for whatever work was done.

Here, it seems that you have already done that.

However, the lien is a powerful tool, and the creditor is threatening to lien the property as they assess you owe them the WHOLE amount. If they lien the property, then you may challenge it in Court. Or, if they do not file some time after the lien, the lien simply drops off itself.

But your question is - how to prevent a lien in the first place? Well, there is no way to stop them dead in tracks, but one can threaten to pursue them for malicious prosecution if they do file a lien.

In order to prevail in a malicious prosecution action, a plaintiff must establish that: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. Burns v. GCC Beverages, Inc., 502 So.2d 1217 (Fla. 1986); Adams v. Whitfield, 290 So.2d 49 (Fla. 1974).

In other words, if they file a legal proceeding that lacks merit and is dismissed, then they themselves are liable for doing so. A letter EXPLAINING this may help to deter them from filing a lien. Let me know if you need a sample letter, although one from an attorney may carry more gravitas.

Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 1 year ago.

Or, if they do not file some time after the lien, the lien simply drops off itself.


Thank you ,


but quick what does the above statement mean, as far as when they don't file etc>?


 

Expert:  Ely replied 1 year ago.
Friend,

Once a lien is filed, it does not simply "stay on forever." It lasts one year. If the lienor does not file suit within that one year, the lien falls off. If the lienor does file a suit and loses, then the lien falls off.

Furthermore, you can contest the lien. A website states it best: "An owner has a right to file a Notice of Contest of Lien during the one-year period. Upon the filing of a Notice of Contest of Lien, a lienor must file a lawsuit to enforce the lien within 60 days. Failure of the lienor to timely file a lawsuit renders the lien invalid." *

*http://www.myfloridalicense.com/

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 87565
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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