Real Estate
Sponsored by

Question About Lien Against Property

1,416 Views | 4 Replies | Last: 7 yr ago by Hanrahan
TravelAg2004
How long do you want to ignore this user?
AG
Backstory:
In October 2015, we signed a contract to build a new house and put our house on the market. Sold our house and moved into a rental a few miles from where we were building the new house. House gets completed in mid May 2016 and we move in at the end of the month. We are officially out of the house on June 1 2016.

We have copies of text messages and emails from the owner saying our deposit check is in the mail. He apparently moved to San Diego (our rent checks were sent to a friend's house two blocks away from the rental) and it took him some time to get everything together and get our deposit in the mail. After the date the deposit check was supposed to arrive, we followed up with a phone call, text message, and email asking for confirmation the check was mailed because our new house is a brand new subdivision and mail service is still a little "iffy". We offered to pay the cost of sending the check via FedEx/UPS to ensure delivery. We got no response after the email saying our check would be in the mail.

As of August 30th, 2016, we still did not have the deposit check. My wife filed a small claims court case in early September. Through talking to the person we sent checks to and some research on the internet, we were able to figure out the owner's work address and had him served.

When my wife talked to the realtor who helped us lease the house, the realtor told her it looks like the house is about to go into foreclosure. (Not sure how the realtor determined this, but when you look at the house, it's obvious the owner just walked away and isn't doing anything with it. There are a number of pieces of mail that say on the envelope "don't go into foreclosure! We can help" kind of stuff.)

Question:
So, knowing that the house is most likely about to be foreclosed on and that we have a small claims case filed and the owner served, what do we need to do to get a lien put against the house so we can get our deposit back if the bank does foreclose and sell the house?
HTownAg98
How long do you want to ignore this user?
You wouldn't be able to get a lien. What you would have is a judgment against him. But you should talk to an attorney, because I may have no idea what I'm talking about.
agracer
How long do you want to ignore this user?
AG
quote:
You wouldn't be able to get a lien. What you would have is a judgment against him. But you should talk to an attorney, because I may have no idea what I'm talking about.
I had to read it 3 times too but to answer your question, you can put all the liens you want against the house but you will be last in line to collect any money left over after the foreclosure and sale of the existing house.
beerag04
How long do you want to ignore this user?
AG
If the guy doesn't show for the justice court hearing you will get a default judgment. You then have to wait 21 days until you can request an abstract of judgment from the court clerk. You can then take that abstract and file it in the county property records. You will have a lien on the property for the amount of the judgment.

The problem is your lien is inferior to the bank's and, as agracer stated, the bank will still foreclose and extinguish your lien against the property. You can try to foreclose on the property before the bank does, but if they have already started the process you may not even get your abstract recorded before they foreclose. Once that property is foreclosed you will have to find other property that the guy owns and try to collect from that. The odds that you will ever collect anything are very low and if you do it will probably cost you more in fees and time than the deposit.
schwack schwack
How long do you want to ignore this user?
AG
How much is your deposit?
Hanrahan
How long do you want to ignore this user?
AG
Beerag is correct. You can get all the judgements you want to pay for, but unless he has other property you can find to attach that judgement to, you are kinda SOL.
Refresh
Page 1 of 1
 
×
subscribe Verify your student status
See Subscription Benefits
Trial only available to users who have never subscribed or participated in a previous trial.