Consumer Protection Law

Consumer protection law questions? Ask a lawyer now.

Ask a Lawyer,
Get an Answer ASAP!

I HAD SOME WORK DONE ON MY LEXUS AT A GARAGE AND THEY DID NOT…

Customer Question
I HAD SOME WORK DONE...
I HAD SOME WORK DONE ON MY LEXUS AT A GARAGE AND THEY DID NOT FIX IT PROPERLY. HOWEVER, I WROTE THEM A CHECK FOR $260.00. WHEN MY CHECK ENGINE LIGHT CAME ON, I WENT TO CHASE ONLINE AND PUT A STOP PAYMENT ON THE CHECK UNTIL I COULD GET MATTERS RESOLVED. I ENDED UP GETTING MY AUTO REPAIRED AT ANOTHER LOCATION. AFTER MUCH THOUGHT, I DECIDED THAT WOULD GO AHEAD AND PAY THE FIRST GARAGE THE $260, BECAUSE I FELT IT WAS THE RIGHT THING TO DO, BUT I DID NOT HAVE THE FUNDS IN MY ACCOUNT. IN THE MEANTIME,THERE WERE SO MANY CHARGES BEING PUT ON OUR CHASE ACCOUNT, THAT WE DECIDED TO CLOSE THE ACCOUNT AND OPEN A NEW ONE. I TOLD THE MANAGER OF THE GARAGE THIS PAST FRIDAY THAT I WOULD BE IN IN A COUPLE OF DAYS AND TAKE CARE OF MY BILL. THIS PAST SATURDAY NIGHT, A TOW TRUCK CAME TO MY HOUSE AND TOWED MY LEXUS OFF. THEY COULD NOT TOW IT WITHOUT THE KEY SINCE IT IS A LEXUS. THE TOWING COMPANY TOLD ME THAT ALL THAT THE GARAGE WANTED WAS THEIR MONEY. I WAS GUARANTEED BY THE TOWING COMPANY THAT IF I WOULD COOPERATE AND GIVE THEM MY KEY AND MY BOUNCED CHECK I WOULD GET MY CAR BACK TODAY. THE OWNER OF THE THE COMPANY IS AT A FUNERAL UNTIL 2:30 TODAY. I'VE BEEN TOLD THAT HE NOW HAS A LIEN ON MY CAR. CAN YOU TELL ME WHAT MY RIGHTS ARE? I WAS GIVEN ZERO NOTICE THAT MY CAR WAS GOING TO BE TOWED.
Submitted: 6 years ago.Category: Consumer Protection Law
Show More
Show Less
Ask Your Own Consumer Protection Law Question
Answered in 19 minutes by:
3/5/2012
Consumer Protection Lawyer: Law Educator, Esq., Lawyer replied 6 years ago
Law Educator, Esq.
Category: Consumer Protection Law
Satisfied Customers: 126,863
Experience: Attorney experienced in commercial litigation.
Verified
Unfortunately, what you did was an unlawful means of resolving a civil dispute and the mechanic could have actually gone to the DA to file for criminal charges against you for issuing bad checks. He has a mechanic's lien on your vehicle now and you will have to pay him the entire amount you owe him and you would also have to pay any towing charges, if he demands them, since you did not make good on the check immediately or he will not release your vehicle and you would have to sue in court for the release of the mechanic's lien. The mechanic did not need to give advance notice on the lien to seize the vehicle. They can charge you reasonable towing charges for the tow and reasonable storage fees.


I hope you found my answer helpful, please click on the GREEN ACCEPT button above for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!

If you have additional questions, please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

PLEASE NOTE WELL, LEGAL ANSWERS TAKE MORE THAN “MINUTES” TO PUT TOGETHER AS WE ARE DEALING WITH LAWS OF 50 STATES PLUS FEDERAL LAWS, AS WELL AS DEALING WITH OTHER CUSTOMERS, SO PLEASE BE PATIENT IT WILL BE MORE THAN “MINUTES” IN SOME CASES BEFORE YOU GET A RESPONSE, BUT BE ASSURED YOU ARE NOT BEING IGNORED.

There can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break.

You can always request me through my profile at http://www.justanswer.com/law/expert-paulmjd/ or beginning your question with “For PaulMJD…”

Ask Your Own Consumer Protection Law Question
Customer reply replied 6 years ago
Relist: Inaccurate answer.
I asked this question over the weekend. When Monday morning came, I called the bureau in Austin that regulates towing and when I got my auto back the man in Austin ran a search on my car and said that the garage never had a lien on my car. In Texas, according, to the constitution, if a mechanic feels a customer owes him money, he has to go to the local county attorney and file a lien on the vehicle. Then, he has to send either a certified letter or a registered letter to the customer giving them a definite amount of time to pay the bill. If the customer refuses to pay the bill, then the garage owner has the right to reposess your vehicle and the vehicle becomes his, legally. He then has the right to sell it as a repossession. This is the law in the state of Texas. I am NOT satisfied with your attorney's answer. Therefore, I am asking for a refund immediately in the morning. The $48.00 casued my account to go into the red.

Laws on Texas Liens written in the Texas Constitution


Sec. 53.023. PAYMENT SECURED BY LIEN . Thelien secures payment for:
(1) the labor done or material furnished for the construction or repair;
(2) the specially fabricated material, even if the material has not been delivered or incorporated into the construction or repair, less its fair salvage value; or
(3) the preparation of a plan or plat by an architect, engineer, or surveyor in accordance with Section 53.021(c).

Acts 1983, 68th Leg., p. 3536, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1995, 74th Leg., ch. 851, Sec. 2, eff. Sept. 1, 1995.



Sec. 53.024. LIMITATION ON SUBCONTRACTOR'S http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitLIEN . The amount of a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claimed by a subcontractor may not exceed:
(1) an amount equal to the proportion of the total subcontract price that the sum of the labor performed, materials furnished, materials specially fabricated, reasonable overhead costs incurred, and proportionate profit margin bears to the total subcontract price; minus
(2) the sum of previous payments received by the claimant on the subcontract.




Sec. 53.025. LIMITATION ON ORDINARY RETAINAGE http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitLIEN . A http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien for retainage is valid only for the amount specified to be retained in the contract, including any amendments to the contract, between the claimant and the original contractor or between the claimant and a subcontractor.



Sec. 53.056. DERIVATIVE CLAIMANT: NOTICE TO OWNER OR ORIGINAL CONTRACTOR. (a) Except as provided by Subchapter K, a claimant other than an original contractor must give the notice prescribed by this section for the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien to be valid.
(b) If the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claim arises from a debt incurred by a subcontractor, the claimant must give to the original contractor written notice of the unpaid balance. The claimant must give the notice not later than the 15th day of the second month following each month in which all or part of the claimant's labor was performed or material delivered. The claimant must give the same notice to the owner or reputed owner and the original contractor not later than the 15th day of the third month following each month in which all or part of the claimant's labor was performed or material or specially fabricated material was delivered.
(c) If the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claim arises from a debt incurred by the original contractor, the claimant must give notice to the owner or reputed owner, with a copy to the original contractor, in accordance with Subsection (b).
(d) To authorize the owner to withhold funds under Subchapter D, the notice to the owner must state that if the claim remains unpaid, the owner may be personally liable and the owner's property may be subjected to a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien unless:
(1) the owner withholds payments from the contractor for payment of the claim; or
(2) the claim is otherwise paid or settled.
(e) The notice must be sent by registered or certified mail and must be addressed to the owner or reputed owner or the original contractor, as applicable, at his last known business or residence address.
(f) A copy of the statement or billing in the usual and customary form is sufficient as notice under this section.



Sec. 53.056. DERIVATIVE CLAIMANT: NOTICE TO OWNER OR ORIGINAL CONTRACTOR. (a) Except as provided by Subchapter K, a claimant other than an original contractor must give the notice prescribed by this section for the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien to be valid.
(b) If the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claim arises from a debt incurred by a subcontractor, the claimant must give to the original contractor written notice of the unpaid balance. The claimant must give the notice not later than the 15th day of the second month following each month in which all or part of the claimant's labor was performed or material delivered. The claimant must give the same notice to the owner or reputed owner and the original contractor not later than the 15th day of the third month following each month in which all or part of the claimant's labor was performed or material or specially fabricated material was delivered.
(c) If the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claim arises from a debt incurred by the original contractor, the claimant must give notice to the owner or reputed owner, with a copy to the original contractor, in accordance with Subsection (b).
(d) To authorize the owner to withhold funds under Subchapter D, the notice to the owner must state that if the claim remains unpaid, the owner may be personally liable and the owner's property may be subjected to a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien unless:
(1) the owner withholds payments from the contractor for payment of the claim; or
(2) the claim is otherwise paid or settled.
(e) The notice must be sent by registered or certified mail and must be addressed to the owner or reputed owner or the original contractor, as applicable, at his last known business or residence address.
(f) A copy of the statement or billing in the usual and customary form is sufficient as notice under this section.

Acts 1983, 68th Leg., p. 3540, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 8, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 8, eff. Sept. 1, 1997.

Sec. 53.057. DERIVATIVE CLAIMANT: NOTICE FOR CONTRACTUAL RETAINAGE CLAIM. (a) A claimant may give notice under this section instead of or in addition to notice under Section 53.056 or 53.252 if the claimant is to labor, furnish labor or materials, or specially fabricate materials, or has labored, furnished labor or materials, or specially fabricated materials, under an agreement with an original contractor or a subcontractor providing for retainage.
(b) The claimant must give the owner or reputed owner notice of contractual retainage not later than the earlier of:
(1) the 30th day after the date the claimant's agreement providing for retainage is completed, terminated, or abandoned; or
(2) the 30th day after the date the original contract is terminated or abandoned.
(b-1) If an agreement for contractual retainage is with a subcontractor, the claimant must also give the notice of contractual retainage to the original contractor within the period prescribed by Subsection (b).
(c) The notice must generally state the existence of a requirement for retainage and contain:
(1) the name and address of the claimant; and
(2) if the agreement is with a subcontractor, the name and address of the subcontractor.
(d) The notice must be sent to the last known business or residence address of the owner or reputed owner or the original contractor, as applicable.
(e) If a claimant gives notice under this section and Section 53.055 or, if the claim relates to a residential construction project, under this section and Section 53.252, the claimant is not required to give any other notice as to the retainage.
(f) A claimant has a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien on, and the owner is personally liable to the claimant for, the retained funds under Subchapter E if the claimant:
(1) gives notice in accordance with this section and:
(A) complies with Subchapter E; or
(B) files an affidavit claiming a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien not later than the earliest of:
(i) the date required for filing an affidavit under Section 53.052;
(ii) the 40th day after the date stated in an affidavit of completion as the date of completion of the work under the original contract, if the owner sent the claimant notice of an affidavit of completion in the time and manner required;
(iii) the 40th day after the date of termination or abandonment of the original contract, if the owner sent the claimant a notice of such termination or abandonment in the time and manner required; or
(iv) the 30th day after the date the owner sent to the claimant to the claimant's address provided in the notice for contractual retainage, as required under Subsection (c), a written notice of demand for the claimant to file the affidavit claiming a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien ; and
(2) gives the notice of the filed affidavit as required by Section 53.055.
(g) The written demand under Subsection (f)(1)(B)(iv):
(1) must contain the owner's name and address and a description, legally sufficient for identification, of the real property on which the improvement is located;
(2) must state that the claimant must file the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien affidavit not later than the 30th day after the date the demand is sent; and
(3) is effective only for the amount of contractual retainage earned by the claimant as of the day the demand was sent.



SUBCHAPTER D. FUNDS WITHHELD BY OWNER FOLLOWING NOTICE

Sec. 53.081. AUTHORITY TO WITHHOLD FUNDS FOR BENEFIT OF CLAIMANTS. (a) If an owner receives notice under Section 53.056, 53.057, 53.058, 53.252, or 53.253, the owner may withhold from payments to the original contractor an amount necessary to pay the claim for which he receives notice.
(b) If notice is sent in a form that substantially complies with Section 53.056 or 53.252, the owner may withhold the funds immediately on receipt of the notice.
(c) If notice is sent under Section 53.057, the owner may withhold funds immediately on receipt of a copy of the claimant's affidavit prepared in accordance with Sections 53.052 through 53.055.
(d) If notice is sent under Section 53.058, the owner may withhold funds immediately on receipt of the notices sent under Subsection (e) of that section. If notice is sent as provided by Section 53.253(b), the owner may withhold funds immediately on receipt of the notice sent as required by Section 53.252.

Acts 1983, 68th Leg., p. 3543, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 12, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 11, eff. Sept. 1, 1997.

Sec. 53.082. TIME FOR WHICH FUNDS ARE WITHHELD. Unless payment is made under Section 53.083 or the claim is otherwise settled, discharged, indemnified against under Subchapter H or I, or determined to be invalid by a final judgment of a court, the owner shall retain the funds withheld until:
(1) the time for filing the affidavit of http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitmechanic 's http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien has passed; or
(2) if a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien affidavit has been filed, until the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claim has been satisfied or released.

Acts 1983, 68th Leg., p. 3544, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 13, eff. Sept. 1, 1989.

Sec. 53.083. PAYMENT TO CLAIMANT ON DEMAND. (a) The claimant may make written demand for payment of the claim to an owner authorized to withhold funds under this subchapter. The demand must give notice to the owner that all or part of the claim has accrued under Section 53.053 or is past due according to the agreement between the parties.
(b) The claimant must send a copy of the demand to the original contractor. The original contractor may give the owner written notice that the contractor intends to dispute the claim. The original contractor must give the notice not later than the 30th day after the day he receives the copy of the demand. If the original contractor does not give the owner timely notice, he is considered to have assented to the demand and the owner shall pay the claim.
(c) The claimant's demand may accompany the original notice of nonpayment or of a past-due claim and may be stamped or written in legible form on the face of the notice.
(d) Unless the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien has been secured, the demand may not be made after expiration of the time within which the claimant may secure the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien for the claim.

Acts 1983, 68th Leg., p. 3544, ch. 576, Sec. 1, eff. Jan. 1, 1984.

Sec. 53.084. OWNER'S LIABILITY. (a) Except for the amount required to be retained under Subchapter E, the owner is not liable for any amount paid to the original contractor before the owner is authorized to withhold funds under this subchapter.
(b) If the owner has received the notices required by Subchapter C or K, if the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien has been secured, and if the claim has been reduced to final judgment, the owner is liable and the owner's property is subject to a claim for any money paid to the original contractor after the owner was authorized to withhold funds under this subchapter. The owner is liable for that amount in addition to any amount for which he is liable under Subchapter E.

Acts 1983, 68th Leg., p. 3545, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 12, eff. Sept. 1, 1997.

Sec. 53.085. AFFIDAVIT REQUIRED. (a) Any person who furnishes labor or materials for the construction of improvements on real property shall, if requested and as a condition of payment for such labor or materials, provide to the requesting party, or the party's agent, an affidavit stating that the person has paid each of the person's subcontractors, laborers, or materialmen in full for all labor and materials provided to the person for the construction. In the event, however, that the person has not paid each of the person's subcontractors, laborers, or materialmen in full, the person shall state in the affidavit the amount owed and the name and, if known, the address and telephone number of each subcontractor, laborer, or materialman to whom the payment is owed.
(b) The seller of any real property shall, upon request by the purchaser or the purchaser's agent prior to closing of the purchase of the real property, provide to the purchaser or the purchaser's agent, a written affidavit stating that the seller has paid each of the seller's contractors, laborers, or materialmen in full for all labor and materials provided to the seller through the date specified in the affidavit for any construction of improvements on the real property and that the seller is not indebted to any person, firm, or corporation by reason of any such construction through the date specified in the affidavit. In the event that the seller has not paid each of the seller's contractors, laborers, or materialmen in full for labor and material provided through the date specified in the affidavit, the seller shall state in the affidavit the amount owed and the name and, if known, the address and telephone number of each contractor, laborer, or materialman to whom the payment is owed.
(c) The affidavit may include:




































(1) a waiver or release of http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien rights or payment bond claims by the affiant that is conditioned on the receipt of actual payment or collection of funds when payment is made by check or draft, as provided by Subchapter L;
(2) a warranty or representation that certain bills or classes of bills will be paid by the affiant from funds paid in reliance on the affidavit; and
(3) an indemnification by the affiant for any loss or expense resulting from false or incorrect information in the affidavit.
(d) A person, including a seller, commits an offense if the person intentionally, knowingly, or recklessly makes a false or misleading statement in an affidavit under this section. An offense under this section is a misdemeanor. A person adjudged guilty of an offense under this section shall be punished by a fine not to exceed $4,000 or confinement in jail for a term not to exceed one year or both a fine and confinement. A person may not receive community supervision for the offense.
(e) A person signing an affidavit under this section is personally liable for any loss or damage resulting from any false or incorrect information in the affidavit.



(2) During construction and for 30 days after final completion, termination, or abandonment of the contract by the contractor, you should withhold or cause your lender to withhold 10 percent of the amount of payments made for the work performed by your contractor. This is sometimes referred to as "statutory retainage.' If you choose not to withhold the 10 percent for at least 30 days after final completion, termination, or abandonment of the contract by the contractor and if a valid claim is timely made by a claimant and your contractor fails to pay the claim, you may be personally liable and your property may be subject to a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien up to the amount that you failed to withhold.
"If a claim is not paid within a certain time period, the claimant is required to file a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitmechanic 's http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien affidavit in the real property records in the county where the property is located. A http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitmechanic 's http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien affidavit is not a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien on your property, but the filing of the affidavit could result in a court imposing a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien on your property if the claimant is successful in litigation to enforce the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien claim.
"SOME CLAIMS MAY NOT BE VALID. When you receive a written notice of a claim or when a http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitmechanic 's http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien affidavit is filed on your property, you should know your legal rights and responsibilities regarding the claim. Not all claims are valid. A notice of a claim by a subcontractor or supplier is required to be sent, and the http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitmechanic 's http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien affidavit is required to be filed, within strict time periods. The notice and the affidavit must contain certain information. All claimants may not fully comply with the legal requirements to collect on a claim. If you have paid the contractor in full before receiving a notice of a claim and have fully complied with the law regarding statutory retainage, you may not be liable for that claim. Accordingly, you should consult your attorney when you receive a written notice of a claim to determine the true extent of your liability or potential liability for that claim.
"OBTAIN A http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitLIEN RELEASE AND A BILLS-PAID AFFIDAVIT. When you receive a notice of claim, do not release withheld funds without obtaining a signed and notarized release of http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien and claim from the claimant. You can also reduce the risk of having a claim filed by a subcontractor or supplier by requiring as a condition of each payment made by you or your lender that your contractor furnish you with an affidavit stating that all bills have been paid. Under Texas law, on final completion of the work and before final payment, the contractor is required to furnish you with an affidavit stating that all bills have been paid. If the contractor discloses any unpaid bill in the affidavit, you should withhold payment in the amount of the unpaid bill until you receive a waiver of http://www.constitution.legis.state.tx.us/DocViewer.aspx?K2DocKey=odbc%3a%2f%2fTCAS%2fASUPUBLIC.dbo.vwTCAS%2fPR%2fS%2fPR.53%40TCAS2&QueryText=mechanics%3cOR%3eliens&HighlightType=1 - nexthitlien or release from that subcontractor or supplier.

Consumer Protection Lawyer: Brent Blanchard, Esq, Lawyer replied 6 years ago
Brent Blanchard, Esq
Category: Consumer Protection Law
Satisfied Customers: 1,975
Experience: Thirteen years' experience in consumer transactions and litigation
Verified
I'm sorry that you are unhappy with the Answer my colleague gave you.

As I was reading your original question, I wondered whether local TX law had been followed in such a short time, as most states do require some effort (not success, just reasonable effort) to notify the owner of a lien before resorting to seizure and sale of a liened asset. Your understanding of TX law after you looked it up is correct.

However, as a practical matter, I can honestly tell you that it is almost-certain that putting a stop order on a check will upset a business owner and could provoke rash and vindictive actions.

And as a legal matter, I must agree with PaulMJD's warnings about stopping payment on a check as being the wrong way to resolve a payment/warranty/quality of work dispute.

As stated by one court:
"Article 3 of the Uniform Commercial Code (UCC) [1] establishes a comprehensive scheme governing the procedures, liabilities, and remedies pertaining to negotiable instruments, including checks.[2] As part of that scheme, when a bank dishonors a check, the drawer [3] of the check is obligated to pay the amount of the check to the check's holder [4] according to its terms at the time it was issued. TEX. BUS. & COM.CODE § 3.414(b).[5] Neither section 3.414,"
The reason for the bank dishonoring the check is generally irrelevant. That's why a rubber check does not work for payment.

Further, TX law specifically allows a mechanic to take possession of a vehicle after a check used to pay for the repairs bounces...IF the rest of the procedures are followed, including notice of possible repossession/seizure of the vehicle at the time of the services being contracted for:

Section 70.001 of the Texas Property Code provides in pertinent part:

(a) A worker in this state who by labor repairs an article, including a vehicle, ... may retain possession of the article until:

(1) the amount due under the contract for the repairs is paid; or

(2) if no amount is specified by contract, the reasonable and usual compensation is paid.

(b) If a worker relinquishes possession of a motor vehicle... in return for a check, money order, or a credit card transaction on which payment is stopped, has been dishonored because of insufficient funds, no funds or because the drawer or maker of the order or the credit card holder has no account or the account upon which it has been drawn or the credit card account has been closed, the lien provided by this section continues to exist and the worker is entitled to possession of the vehicle... until the amount due is paid, unless the vehicle... is possessed by someone who became a bona fide purchaser of the vehicle after a stop payment order was made....

(c) A worker may take possession of an article under Subsection (b) only if the person obligated under the repair contract has signed a notice stating that the article may be subject to repossession under this section."

The mention of a stop order in that statute is part of a protection for the NEXT buyer who pays a fair price for the vehicle after the stop order on the check is issued. The non-paying customer now has money from THAT buyer and should not be allowed to reap a windfall by selling something he or she (or the business) has not fully paid for.

I hope this helps you understand some of the hazards of "self-help" outside of the legal system in the form of issuing a stop payment order on a check.

Thank you.

BAB.
Ask Your Own Consumer Protection Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a consumer protection lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask Brent Blanchard, Esq Your Own Question
Brent Blanchard, Esq
Brent Blanchard, Esq
Brent Blanchard, Esq, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 1,975
1,975 Satisfied Customers
Experience: Thirteen years' experience in consumer transactions and litigation

Brent Blanchard, Esq is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Infolawyer

Infolawyer

Lawyer

7,125 satisfied customers

Licensed attorney helping individuals and businesses.

Ely

Ely

Counselor at Law

3,436 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

Barrister

Barrister

Lawyer

1,679 satisfied customers

Attorney,17 years experience in consumer protection areas

P. Simmons

P. Simmons

Lawyer

1,227 satisfied customers

16+ yrs. of legal experience.

LADY LAWYER

LADY LAWYER

Lawyer

748 satisfied customers

Consumer Lawyer

RGMacEsq

RGMacEsq

Lawyer

604 satisfied customers

Licensed Texas General Practice Attorney

RobertJDFL

RobertJDFL

Lawyer

517 satisfied customers

Experienced in multiple areas of the law.

< Previous | Next >

Related Consumer Protection Law Questions
I have a used car issue, It's s, Texas its a 2007 jeep
Texas its a 2007 jeep commander bought on Dec 31st of 2016 and it overheated this past Fri night and the engine was damaged … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,766 satisfied customers
I purchased a 2013 Chrysler 300 S on March 12, 2016 from a
Hi, I purchased a 2013 Chrysler 300 S on March 12, 2016 from a KIA dealer on Ohio. Within a week I noticed a jerking of the car when I applied the brakes. I then returned the car for service, the repr… read more
LegalGems
LegalGems
Juris Doctorate
12,814 satisfied customers
I purchased a car about 8 days ago in Columbia Missouri and
I purchased a car about 8 days ago in Columbia Missouri and on Friday 11/20 the car broke down on my way home to Illinois. I had AAA tow the car to a local recommended auto shop in Normal IL. Since th… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
Had an oil change by Pep Boys and 1160 miles later the drain
Hi, had an oil change by Pep Boys and 1160 miles later the drain plug came out and the engine quit. Had it towed to an auto repair facility who told me the drain plug was out the engine destroyed. Cal… read more
Phillips Esq.
Phillips Esq.
Attorney
JD
20,508 satisfied customers
A California tow truck company damaged my car while towing.
Hi A California tow truck company damaged my car while towing. They admitted dropping the vehicle but refused to provide the name of the companies insurance carrier. I filed a claim with my auto insur… read more
Phillips Esq.
Phillips Esq.
Attorney
JD
20,508 satisfied customers
My question is I just purchased a used 2006 Lexus GS300 12/19/2014
My question is I just purchased a used 2006 Lexus GS300 12/19/2014 and the check engine light came on the next day called the dealership to let them know what was going on and they said it was fine it… read more
P. Simmons
P. Simmons
Lawyer
Doctoral Degree
1,227 satisfied customers
I am trying to find if there is a way to recover my car from
I am trying to find if there is a way to recover my car from towing company that was towed away from their parking garage about a year ago (11/2013). My son parked my car-registered under me but that … read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
I purchased a 5-years extended warranty for my SC-430 Lexus.
I purchased a 5-years extended warranty for my SC-430 Lexus. When I took the vehicle to Lexus dealership for an oil leak service, I specifically instructed the dealership to CALL and OBTAIN a claim nu… read more
Law Educator, Esq.
Law Educator, Esq.
Lawyer
126,863 satisfied customers
I cosigned on an auto loan for my former wifes son. Two months
I cosigned on an auto loan for my former wife's son. Two months later he blew up the engine on the car. In order to protect my credit (knowing he would never pay for a car that didn't run) I agreed to… read more
P. Simmons
P. Simmons
Lawyer
Doctoral Degree
1,227 satisfied customers
I bought a used 2006 Suzuki Forenza from MyDriveyTime in November
I bought a used 2006 Suzuki Forenza from MyDriveyTime in November of 2011. It was in the shop on day 4, 1 day after I could return it back. It had to have an engine bolt and struts replaced. I have re… read more
MShore Law
MShore Law
Doctoral Degree
1,233 satisfied customers
In Arizona. My car was stolen on May 5 of this year. I initially
In Arizona. My car was stolen on May 5 of this year. I initially believed my car was towed because i parked in a handicap spot. It was 10pm on a Saturday night. I walked the parking lot and found a to… read more
Law Educator, Esq.
Law Educator, Esq.
Lawyer
126,863 satisfied customers
On April 9, 2012, I found out my car was in a garage storage
On April 9, 2012, I found out my car was in a garage storage and was being charged $20/day for storage. The garage sent the bill to my daughter. The car is in my name and my daughter was using it. She… read more
JBaxLaw
JBaxLaw
Attorney
Doctoral Degree
8,080 satisfied customers
Hello, I just purchased a used 2011 Dodge grand Caravan from
Hello, I just purchased a used 2011 Dodge grand Caravan from a dealer in Stroudsburg, PA. I purchased the car on Saturday 3/24 and by Monday 3/26 my husband had to return the vehicle to the dealer bec… read more
MShore Law
MShore Law
Doctoral Degree
1,233 satisfied customers
I bought a used car but had a buyers survey done before I
I bought a used car but had a buyer's survey done before I took it. That garage said all major vehicle sysatems were in good condition. The car died 34 miles later. The garage that it was towed to sid… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
I have a major problem with Jiffy Lube. On Saturday my 94
I have a major problem with Jiffy Lube. On Saturday my '94 jeep started to overheat. I pulled into the store with smoke coming out from under my hood. When the hood was opened there was coolant all ov… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,125 satisfied customers
Chase Auto Finance had my husband vehicle repossessed on 12/30/08
Chase Auto Finance had my husband vehicle repossessed on 12/30/08 for being past due from 10/25/08 by L&K Recovery. Once my husband vehicle was repossessed we spoke daily with a rep name Mr. Ross from… read more
Dwayne B.
Dwayne B.
Juris Doctor
28,766 satisfied customers
I brought a used car from D & B Auto sales and the same day
I brought a used car from D & B Auto sales and the same day it broke down. so i have it towed back to the dealer and they say I abused the car and it needs a whole new engine then the GM says I'm not … read more
Expert
Expert
My husband took his car to an auto repair shop. He told ...
My husband took his car to an auto repair shop. He told them to take their time because he has another vehicle. The shop was broken into and some of the keys were stolen. They used the keys to break i… read more
OnPointLegal
OnPointLegal
J.D.
258 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x