Legal Question in Real Estate Law in California

Unliscenced contractor: continued

A contractor we hired and then had to fire after we found 2 days later was working on a suspended licenses put a fraudulent lien, shortly after we filed a complaint with the contractors state liscencing board and filed with his bond company, on our home for material delivered and billed by another company and work done by a sub who both we have paid. He refuses to remove the fraudulent lien until we, as he puts it, ''Back off from filing to his Bond company!'' What do we have to do to have this fraudulent lien removed from our home in a timely manner? We have considered waiting the remaining 44 days but we are wanting to refi our home before the rates go back up. We typed up and sent a letter to the contractor dated 12/23/08 stating that it is our intent to pursue legal intervention if he failed to remove the fraudulent lien immediately and by no later than 12/29/08 at noon. It was also stated that if we were forced to pursue having the court remove the fraudulent lien that we would be seeking legal and other available fees. Was this ok to have done this ourselves or should we seek out a real estate attorney? If we can file ourselves what civil forms do we need to fill out and file?


Asked on 12/28/08, 5:23 pm

3 Answers from Attorneys
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Re: Unliscenced contractor: continued

Go to the head of the class as far as writing the letter. My best guess is that the court would award you attorney fees if you were to sue him, so that suggests you should use an attorney -- on the other hand you might not be able to collect your judgment. You can sue in small claims court, but this won't remove the lien. Probably suing him will require more than just your fair-to-pretty-good-for-a-layperson legal skills.

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Answered on 12/28/08, 6:25 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Unliscenced contractor: continued

I would like to give a few possibly-useful pointers without pretending to offer overall advice or to recommend a course of action.

First, you might want to look up and read Civil Cide section 3154 regarding petitions for release of lien. Note that it provides for an attorney fee of up to $2,000 for the prevailing party. If the contractor has a bond, or assets, this provision might influence your decision whether to hire an attorney or go it alone.

Second, someone needs to analyze the lien for possible validity. I know that an unlicensed contractor cannot enforce a lien, but in the case of a suspended license, or perhaps a third-party (materialman's) lien, I'm not so sure.

Third, who's to say whether refi rates will be higher or lower 44 days from now? I will be following the trend for my own personal uses over the coming weeks, and I don't know how to guess the bottom, but I'm not ready to apply quite yet. Also, there may be a way to lock in a rate and proceed with an expired lien on day 45.

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Answered on 12/28/08, 6:32 pm
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: Unliscenced contractor: continued

You must commence a civil action and prove damages. Contact me directly.

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Answered on 12/30/08, 7:45 pm


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