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I need some more information to go on than what you have here. Can you answer the following questions for me --
1. Was there a written contract? What for and an amount?
2. How many days between the last time he was at the property and when he filed the lien on the property?
You have to bear with me once you answer these questions and give me a half hour or so to review the law and write up an answer to give you the next steps.
1. Was there a written contract? What for and an amount?
yes, but he cancelled the contract after verbal talk over the phone. the amount of 3000 and I had made deposit 1000;
2. he was in the property 1 days (actually 2 hrs). He has not but he sent a letter to my landlord and let my landlord know that he's going to put lien on the property. So my landlord asked me to resolve the problem or he seek legal assistance and I have to pay the fee
Hello Phi -
This is a bit different -- I was under the impression that the lien had already been filed and work almost completed. Under these circumstances, because the work has not been substantially completed and the owner of the property (your landlord) did not sign the contract, this contractor cannot file a lien on your property and if he tries to do so the landlord could challenge him in court and be paid for any and all legal fees that he has to pay to take care of these matters because it is a frivolous and erroneous claim. What you need to do is go to your local county magistrate court immediately and ask them for the paperwork to start a small claims action against this contractor and sue him for the $1,000 that you paid to him and a cease and desist order against him from the court so that he cannot attempt to take the matter any further against the landlord or the property. If you can tell me what county you are located there in Texas I can get you the information for your local magistrates court and you can go from there (the forms may even be online to start a small claims action). You simply complete the paperwork and pay a small fee and the court will notify both parties of the hearing date and then you appear on that date and tell the magistrate what happened -- you do not need an attorney and the magistrate has the power to award up to $5,000 in damages. If you do not want to do it this way then the only other way is to hire an attorney and have the attorney send a cease and desist letter to the contractor and the attorney will most likely take the matter into magistrates court -- which is what you can do yourself.
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I did file small claim court for that $1000 since May 2013, but the hearing is not set up until this Nov. 2013.
Now, he sent a letter to my landlord and tell not true story and he claim $1400 more otherwise he's going to put the lien on the property. The landlord told me I have to resolve the problem before they take action and I will pay the legal fee.
Hello again -
There is nothing more that you can do except wait for the hearing and if he tries to file a lien against the property with a pending hearing set up it will not be permitted to happen. Perhaps your landlord does not understand that? The reason why he sent the letter to the landlord is to scare your landlord into putting pressure on you and the landlord is now playing right into his hands. About the only other thing that you can do at this point is to hire an attorney yourself and it will cost a few hundred dollars to have the attorney write this contractor a "cease and desist" letter which will most likely get the contractor to back off at least until the hearing (the lawyer will threaten him with license violations and anything else he can think of after looking at the contract)
So solution is I have to hire an attorney?
Unless you can get your landlord to relax and wait until the hearing date (try to explain to him that this was the quickest it could be scheduled and an attorney is not going to get anything done any sooner). Otherwise a letter from an attorney is the next step -- but even then, because you already have a small claims hearing scheduled the only thing you need the attorney for is to write a cease and desist threatening letter to try to get him to back off and that is still no guarantee that he will not stop harassing your landlord. I wish I could give you a magic quick legal solution to this but one does not exist and hiring an attorney before the hearing is probably not going to change anything -- he cannot file a lien against property that he did not have a contract with the owner of the property. Your landlord probably simply does not understand this.
so what if he doens't understand the law and still file a lien against the property?
If I want to send him a cease and desist what should I write to him? the thing is I don't want to waste few hundred dollars and the solution can be resolved
The court in November will order him to remove any lien on the property or face fines, etc. But it is doubtful that it will even be permitted in the first place.
If you want to write a letter yourself you can simply tell him to cease and desist from harassing you and your landlord and that he has no right to file a lien against property when the owner did not sign a contract with him. Tell him that the magistrate hearing in November will determine whether or not anyone owes him any money or he owes you money and if he persists in calling you or your landlord you will contact the police and file a claim for harassment. (I cannot write the letter for you because that is against the terms of service here and I could be dismissed if I did -- the website is for educational purposes only and not actual legal representation so I can just offer you suggestions of what to put in the letter). Once you send the letter if you hear from the landlord again or he contacts you again, then contact the police and file a complaint -- at the very least the police should contact him and tell him to cease contact because the matter has been signed up for a magistrate hearing in November (the police will most likely be helpful when they see that you have signed it up for a hearing and this contractor simply refuses to wait for the legal process to happen and wants to harass you for money that you do not owe him -- you never know, you might find out that this contractor has had run-ins with the police in the past -- many of them do).
You said should file magistrate court but actually in the past I did file case at small claim court (it means civil court) so if on the hearing date should I ask the judge to order to stop him file the lien on the property?
Magistrates court and small claims court are the same in Texas. You did it correctly. When you go to court you should ask for an order forbidding him from filing a lien as well as for a refund of your money; If he did nothing then you should be able to get at least some of your money back.
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"When you go to court you should ask for an order forbidding him from filing a lien as well as for a refund of your money"
You mean at the hearing that will happen in November? or at the time I file small claim court? I did file small claim court and just ask for the money
THat's fine because in order to file a small claim you must make a money demand. When you get to court ask for both the money and the order regarding the lien.
Ok, thank you for your answer.
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