Is there a mechanics lien recorded on your property? You should consult an attorney about potential consequences of the lien and what to do if the claimant files suit to foreclose on it.
In California, if a mechanics lien is filed against your property, you should diligently examine the lien for validity. Sometimes, the lien may be invalid if the contractor's work is incomplete or if specific timing requirements are not met. An attorney may help you assess whether the lien is valid.
For example, if the lien claimant is not a prime contractor or laborer, they must file a Preliminary 20-day notice. As such, a subcontractor or materials supplier has 20 days (after beginning work or delivering materials) to serve you a Preliminary 20 day lien notice. The claim against your property may not be valid if the time frame is not followed.
The claimant must also record the mechanics lien within 90 days of either completion of the work, the date when the owner began using the improvement, or when the owner accepted the improvement.
Finally, the claimant must file a timely foreclosure action to foreclose on the mechanics lien in order to maintain the validity of the lien. This action must be filed within 90 days of recording of the mechanics lien. If this time frame is not followed, the lien may be rendered invalid.
A lien stays on the county records as a 'cloud' on your property title. You must take action to remove it if you intend to sell or refinance your property. You should petition the court for a decree to remove the lien if the claimant does not remove the lien and the time has expired to record it or take action to foreclose. There are numerous steps to remove the lien and you are best advised to hire an attorney to deal with this matter. If you are forced to hire an attorney to remove the lien, the court may award you attorneys fees of up to $2,000. For more information, see Civil Code Sections 3110-3154.
Tuesday, March 15, 2011
Saturday, February 19, 2011
WHAT YOU NEED TO KNOW ABOUT JUDGMENTS
In today's economy, more and more people are struggling financially. Ordinary and hard-working individuals find themselves defaulting on their credit cards and other obligations. Debtors are continuously harassed by unsympathetic creditors in their attempts to collect the debt.
If you or someone you know is facing this situation, it may be in your best interest to consult an attorney regarding settlement of the debt for a portion of the amount owed. Depending on the amount of your debt, you would likely obtain a better settlement by using an attorney. In some situations, you may be able to settle the debt with the creditor directly, but you need to know exactly what bargaining chips you have. This article will help you do just that.
Initially, creditors often attempt to collect the debt without filing a lawsuit, but when this is unsuccessful, they may, and often do, sue the debtors. If the creditor obtains a judgment, they often enforce it as soon as possible, and continue to do so until the entire debt, plus any interest at 10% per annum (Code of Civil Procedure Sec. 685.010.), costs, and attorney fees, are fully recovered. It is important to remember that in California, a judgment is good for 10 years and is renewable for an even longer time. As such, the interest and costs keep accruing the longer your judgment remains unpaid. Thus, when you finally do have some money, or when the creditor levies on something valuable, they would be entitled to a lot more than just your judgment principle. There are entire debt collection businesses that employ collectors full-time, whose sole responsibilities consist of finding your assets, your employer, your bank accounts, etc. With this information they may garnish your wages, place a lien on your property, or may get more creative and humiliate you or disrupt your business (i.e. send a sheriff to collect money from your cash register, take your car from the front of your house, or seize your office/ business equipment).
Often debtors attempt to conceal their assets from creditors. However, creditors have become savvy at tracking assets. A debtor may one day find their bank accounts levied or their vehicles confiscated. Therefore, it is important to understand what creditors may do to collect the debt, and how to emerge from such a situation with a favorable outcome for yourself.
Although filing for bankruptcy is an attractive option for some people (depending on the type and amount of debt), it may not be in your situation. If an action has been filed against you, it is best to consult an attorney as soon as possible about how to proceed and whether bankruptcy is right for you. If it is too late to Answer the law suit (i.e. if the time permitted has elapsed), or if a judgment against you has already been entered, creditors have many avenues available to them to enforce their judgment.
If the creditor obtained a judgment, they have already incurred costs in obtaining that judgment, so any kind of settlement that you negotiate is likely to be less favorable for you. This is the case, because the more money the creditor spends, the less incentive they have to settle. Therefore, it makes more sense to attempt settlement before a creditor incurs further costs and fees.
There may be other ways of settling your debt by frustrating or delaying the collector’s efforts to enforce their judgment. Depending on your circumstances, you may be able to question the creditor’s collection efforts or whether you were afforded due process. Your negotiation should also consider the likelihood of you filing bankruptcy, your earning potential, property, assets, and other considerations. If you find yourself receiving a notice of a levy from the sheriff, you should act quickly. You have approximately 10 days from the date of service to properly proceed with filing an exemption, otherwise it is waived. Also, keep in mind that if a creditor knowingly levies on property that is “exempt without making a claim,� they risk potential liability for abuse of process. If this happened to you, this argument may be your bargaining chip to negotiate a more favorable outcome.
Filing the claim of exemption forces the creditor to jump through more hoops, spend more money, and take more risks in deciding whether to oppose your claim. If they choose to oppose it, the opposition must be filed within a very short time from the service of the Notice of Claim of Exemption. Depending on your circumstances, it may not be worth it for the creditor to continue pursuing you at this time. On the other hand, they may have nothing to lose in opposing your exemption, as it will be your burden to prove to the judge that you are unable to pay. So, for the creditor, this is a case by case analysis.
In any case, it may be advisable for you to file a claim of exemption in a timely manner, as the court has discretion to consider your financial woes at the exemption hearing to decide whether the exemption should be granted, and to what extent. However, just because the court allows the exemption, this does not mean that the judgment is no longer good, or that the creditor will now stop pursuing you. The creditor may wait a certain period of time and continue pursuing your assets when they feel your financial circumstances have changed.
In summary, it is often worth attempting settlement at any point in the judgment collection process. There may be a benefit to file bankruptcy for some people or to ignore the creditors for others. It all depends on the facts of your situation.
If you would like to discuss your options, you should speak with an attorney to obtain the best possible outcome on your behalf.
If you or someone you know is facing this situation, it may be in your best interest to consult an attorney regarding settlement of the debt for a portion of the amount owed. Depending on the amount of your debt, you would likely obtain a better settlement by using an attorney. In some situations, you may be able to settle the debt with the creditor directly, but you need to know exactly what bargaining chips you have. This article will help you do just that.
Initially, creditors often attempt to collect the debt without filing a lawsuit, but when this is unsuccessful, they may, and often do, sue the debtors. If the creditor obtains a judgment, they often enforce it as soon as possible, and continue to do so until the entire debt, plus any interest at 10% per annum (Code of Civil Procedure Sec. 685.010.), costs, and attorney fees, are fully recovered. It is important to remember that in California, a judgment is good for 10 years and is renewable for an even longer time. As such, the interest and costs keep accruing the longer your judgment remains unpaid. Thus, when you finally do have some money, or when the creditor levies on something valuable, they would be entitled to a lot more than just your judgment principle. There are entire debt collection businesses that employ collectors full-time, whose sole responsibilities consist of finding your assets, your employer, your bank accounts, etc. With this information they may garnish your wages, place a lien on your property, or may get more creative and humiliate you or disrupt your business (i.e. send a sheriff to collect money from your cash register, take your car from the front of your house, or seize your office/ business equipment).
Often debtors attempt to conceal their assets from creditors. However, creditors have become savvy at tracking assets. A debtor may one day find their bank accounts levied or their vehicles confiscated. Therefore, it is important to understand what creditors may do to collect the debt, and how to emerge from such a situation with a favorable outcome for yourself.
Although filing for bankruptcy is an attractive option for some people (depending on the type and amount of debt), it may not be in your situation. If an action has been filed against you, it is best to consult an attorney as soon as possible about how to proceed and whether bankruptcy is right for you. If it is too late to Answer the law suit (i.e. if the time permitted has elapsed), or if a judgment against you has already been entered, creditors have many avenues available to them to enforce their judgment.
If the creditor obtained a judgment, they have already incurred costs in obtaining that judgment, so any kind of settlement that you negotiate is likely to be less favorable for you. This is the case, because the more money the creditor spends, the less incentive they have to settle. Therefore, it makes more sense to attempt settlement before a creditor incurs further costs and fees.
There may be other ways of settling your debt by frustrating or delaying the collector’s efforts to enforce their judgment. Depending on your circumstances, you may be able to question the creditor’s collection efforts or whether you were afforded due process. Your negotiation should also consider the likelihood of you filing bankruptcy, your earning potential, property, assets, and other considerations. If you find yourself receiving a notice of a levy from the sheriff, you should act quickly. You have approximately 10 days from the date of service to properly proceed with filing an exemption, otherwise it is waived. Also, keep in mind that if a creditor knowingly levies on property that is “exempt without making a claim,� they risk potential liability for abuse of process. If this happened to you, this argument may be your bargaining chip to negotiate a more favorable outcome.
Filing the claim of exemption forces the creditor to jump through more hoops, spend more money, and take more risks in deciding whether to oppose your claim. If they choose to oppose it, the opposition must be filed within a very short time from the service of the Notice of Claim of Exemption. Depending on your circumstances, it may not be worth it for the creditor to continue pursuing you at this time. On the other hand, they may have nothing to lose in opposing your exemption, as it will be your burden to prove to the judge that you are unable to pay. So, for the creditor, this is a case by case analysis.
In any case, it may be advisable for you to file a claim of exemption in a timely manner, as the court has discretion to consider your financial woes at the exemption hearing to decide whether the exemption should be granted, and to what extent. However, just because the court allows the exemption, this does not mean that the judgment is no longer good, or that the creditor will now stop pursuing you. The creditor may wait a certain period of time and continue pursuing your assets when they feel your financial circumstances have changed.
In summary, it is often worth attempting settlement at any point in the judgment collection process. There may be a benefit to file bankruptcy for some people or to ignore the creditors for others. It all depends on the facts of your situation.
If you would like to discuss your options, you should speak with an attorney to obtain the best possible outcome on your behalf.
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