This one is a mess....

[jv27403]

I have been dealing with, in my opinion, a not so honest contractor. I have as of today discovered he has filed a lein on real property. He did this in June 2009. As of yet he has not completed the work per our contract. Contract states last payment due 30 days after completion. We've already paid out $120,000. We have been to mediation and he still refused to complete the work. I found out about the lein when served with a civil summons today which is confusing because part of the contract stated if there was a disput we were bound to "Binding Arbritration". Part of the disagreement is due to orignally the price of the plans was part of the total price. This was reflected in all his billing. He submitted three bills, weeks after they left the job site. Two reflected the agreed price and the third which he added an additional $10,500. to the total. He also falsefied the final punch list to agree with the lein date he states he "lost" the original list, so he just has a list by which he claims is done with NO signitures. He also changed the final contract without addendums nor had us intial those changes. When asked about this he stormed out of the meeting. I have not answered the summons as of yet. Yes it seems to be a mess.

1) Is there any recourse for falsely filing a lein? and is There any reason we did not know before now?

2) Advice as to how I should counter this? Seems like he is attempting to strong arm us. He knows we put everything into building this business and knows we do not have the resources for an attorney.

3) He also called our equipment rep and told him we were not paying and called the property owner to discuss the matter. Is there a breach of privacey here.


Thank you for your greatly needed help.

 

[tpajet]

The simple solutoion at this point is to answer the summons, go to court, and bring all the paperwork you have proving what he has done. He won't be able to storm out of court.

 

[jv27403]

I could have got that advice from my sister. Something I noticed on this forum if two people want to discuss whether or not one should have used the term "afore mentioned or before" its a great place but real answers of substance is few and far between.

Thanks

 

[fredrikklaw]

Best defense is a good offense!

Mechanic's Lien abuses are viewed very seriously and the contractor who files a lien with malice and without proper cause can be held liable to the property owner for damages resulting from impeding and clouding the property title.

Binding Arbitration clauses are highly valid and very much enforceable and are indeed enforced by courts. The most prudent course of action for you would be not to answer the complaint in the first instance and instead bringing the contractor back to the arbitration table by filing a "Motion to Compel Arbitration" together with a "Motion to Dismiss" or in the alternative to "Stay the Action" while the motion to compel is ruled on.

By the sound of it, this contractor is just being spiteful and filed a wrongful and malicious mechanic's lien without meeting any of the conditions, and in order to keep your legal costs to a minimum, when you are being heard on the Motion to Compel, you can make an oral motion (it is permitted and proper), requesting the judge issue an order removing the mechanic's lien.

Hope it goes well for you.

fredrikklaw

 

[jharris352]

When asking for free advice is it not very courteous to insult those you are asking. None the less I'll throw my answer in too.

Your contractor likely underbid the job and is out of money. That isn't your fault, and shouldn't be your problem, however; you are stuck with an unfinished job. To add insult to injury, he is knuckle headed enough to file a lien on your property and file suit against you when his own contract, no doubt, demands arbitration. Do I have it about right?

A couple observations:

1. Contracts are liberally construed against the person who wrote them. I imagine he presented you with a contract so he is the author.

2. You mentioned going to mediation and that he "stormed out" but you never really said what the result of mediation was. I take it mediation favored you.

3. Now this fellow has sued you. Because of his own contract that demands mediation, and his impetuous actions at mediation, this suit is almost per se frivolous.

4. I know you said you don't have money for an attorney, I would still consider one because costs are very likely to be thrown on this contractor. My caveat is if you think this contractor is broke. Did he have an attorney or did he file pro se?

5. In any case, there is a definite penalty for filing a frivolous or malicious mechanic's lien. Any false statement made in filing a lien is a CRIMINAL Misdemeanor under NCGS 44A-24.

6. Filing a lien in the face of binding arbitration that has ruled against you is likely a false statement or a misrepresentation of material fact.

7. So, my advice is as follows:
A. Hire an attorney and throw costs onto the Contractor. At least talk to one about the possibility.
B. In the alternative, Answer the Complaint (verify it) ask that costs be thrown on the Plaintiff for frivolous and malicious prosecution of a claim, File a Counter Claim for damages due to work that has not been completed.

This guy you are dealing with is not that bright. If he is represented by an attorney then there must be something you are inadvertently not telling us because any attorney advising this dolt would not get involved in a malicious lawsuit. Good luck, let me know if this helps.

 

[jv27403]

To clarify:
1) He stormed out of a meeting with my partner and I not mediation.
2) We went to mediation and he stood fast on us paying $17,000.00 and he would give us a clear title BUT we would to to foot the costs to complete work - laughable at best. Mediation was declared an impass.
3) He does have an attorney and the only thing I can think of is he, as he did when he threatend court action while we were in mediation I mentioned the binding arbitration clause, at first denied there was an agreement for binding arbitration. That is until I showed it to the mediator.

 

[jharris352]

File an Answer that states that he has not stated a claim upon which relief can be granted. File a Motion for Summary Judgment or Motion to Dismiss depending on the jurisdiction citing that he is bound by consent to Arbitration. File for injunctive relief against the filing of the lien. The judge will grant your dismissal, and probably the injunctive relief since the lien is premature.

Then file Arbitration papers and have them served on him.