What is the name of your state?What is the name of your state? Illinois
Hello. My husband and I signed an agreement with our contractor on January 9, 2003. During that time he received 2 payouts, nearly $200,000, with the final payout to be paid at the time of completion. Our contract read: "The work to be perfomred under this Contract shall be commenced on or before January 11, 2003, and shall be substantially completed on or before September 1, 2003. Time is of the essence." Our house was not completed by this date -- we had to live in a hotel for nearly a month. Our contractor quit the job leaving our home incomplete according to our agreement. In fact, my husband spoke with our contractor on September 25, 2003, to ask him what was going on with the house -- it had been 2 days and no one worked in the house, was he finished, could we move in, when would the yard be at final grade as agreed? After the conclusion of his conversation, our contractor said, "I'll tell you what bud, we will get our tools tomorrow and she is all yours." He walked off the job.
Approximately 60 days after we finally moved in on September 29, several of the subs started calling us stating they were never paid. These subs were hired by our contractor and completed work during the period of the first 2 payouts. The bank froze our 3rd payout and placed it in escrow. Therefore we had to pay these subs out of pocket in order to prevent mechanics liens on the house.
We hired an attorney to help us get this resolved and later learned when trying to lock in and close on our mortgage to take advantage of the low interest rates, our contractor placed a lien on our home for the entire balance of the 3rd payout.
To make a long story short, our contractor's bookkeeping is horrible, although our records are very thorough. He submitted an unsigned final sworn contractors statement including many incorrect subcontractors and contract amounts listed. On this statement, our contractor didn't even exclude the amounts we had to pay out of pocket to the subs he claimed to have paid. Our attorney requested that he sign the final sworn contractors statement over 4 months ago and nothing has surfaced. However, every month our contractor sends a bill for the entire balance of the 3rd payout including finance charges.
Following our attorney's request for the signed final sworn contractors statement, the monthly bill sent to us by our contractor including a deduction for our cabinets which we paid out of pocket and he claims to have paid on the final sworn contractors statement.
The lien he filed against our home is for a sum of $154,172.00. Following his statement correction mentioned above, the contractor is now claiming that we owe him $148,118.93 which is still incorrect.
Referring to the Illinois Mechanics Lien Act, section 7, "No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefore under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud."
My questions are this:
1) Since there was a correction to the amount the contractor claims we owe (above), can the lien be defeated?
2) The lien also reads "Owner would not sign change order, rest of work complete according to contract." No change orders were submitted or signed by either of us. The house was not complete according to contract. Can this defeat the lien?
3) What can we do to get the lien removed? We just attempted to increase our existing line of credit to do landscaping and our credit was excellent and the equity is available, but we were denied the right to sign papers because of this lien.
Also, there is a 12 month warranty included in our contract. It is now July and it will be a year in September. We had to hire a structural engineer because laminate beams were installed in our house and were not spanned long enough to support the structure. The engineer states that our house will not be safe for us to live here over a period of time if it isn't fixed. We are in the process of getting a bid to have it fixed which will be paid by us but hopefully reimbursed by the orginial contractor. Time is a concern here.
Our attorney is not doing anything to get this resolved other than playing a patience game waiting for our contractor to sign the final sworn statement. I have had to do a ton of research and bring several things to his attention (e.g., the mechanics lien).
Considering all that we had to pay out of pocket that the contractor claims he paid, when doing the math, our contractor actually owes us money.
Do you have any suggestions on what we should do? We want to get this resolved so we can close on our mortgage securing a low interest rate. Most importantly, we want to get the lien removed at all possible.
I would appreciate your expertise and advise on this nightmare.
Thank you in advance.
Hello. My husband and I signed an agreement with our contractor on January 9, 2003. During that time he received 2 payouts, nearly $200,000, with the final payout to be paid at the time of completion. Our contract read: "The work to be perfomred under this Contract shall be commenced on or before January 11, 2003, and shall be substantially completed on or before September 1, 2003. Time is of the essence." Our house was not completed by this date -- we had to live in a hotel for nearly a month. Our contractor quit the job leaving our home incomplete according to our agreement. In fact, my husband spoke with our contractor on September 25, 2003, to ask him what was going on with the house -- it had been 2 days and no one worked in the house, was he finished, could we move in, when would the yard be at final grade as agreed? After the conclusion of his conversation, our contractor said, "I'll tell you what bud, we will get our tools tomorrow and she is all yours." He walked off the job.
Approximately 60 days after we finally moved in on September 29, several of the subs started calling us stating they were never paid. These subs were hired by our contractor and completed work during the period of the first 2 payouts. The bank froze our 3rd payout and placed it in escrow. Therefore we had to pay these subs out of pocket in order to prevent mechanics liens on the house.
We hired an attorney to help us get this resolved and later learned when trying to lock in and close on our mortgage to take advantage of the low interest rates, our contractor placed a lien on our home for the entire balance of the 3rd payout.
To make a long story short, our contractor's bookkeeping is horrible, although our records are very thorough. He submitted an unsigned final sworn contractors statement including many incorrect subcontractors and contract amounts listed. On this statement, our contractor didn't even exclude the amounts we had to pay out of pocket to the subs he claimed to have paid. Our attorney requested that he sign the final sworn contractors statement over 4 months ago and nothing has surfaced. However, every month our contractor sends a bill for the entire balance of the 3rd payout including finance charges.
Following our attorney's request for the signed final sworn contractors statement, the monthly bill sent to us by our contractor including a deduction for our cabinets which we paid out of pocket and he claims to have paid on the final sworn contractors statement.
The lien he filed against our home is for a sum of $154,172.00. Following his statement correction mentioned above, the contractor is now claiming that we owe him $148,118.93 which is still incorrect.
Referring to the Illinois Mechanics Lien Act, section 7, "No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefore under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud."
My questions are this:
1) Since there was a correction to the amount the contractor claims we owe (above), can the lien be defeated?
2) The lien also reads "Owner would not sign change order, rest of work complete according to contract." No change orders were submitted or signed by either of us. The house was not complete according to contract. Can this defeat the lien?
3) What can we do to get the lien removed? We just attempted to increase our existing line of credit to do landscaping and our credit was excellent and the equity is available, but we were denied the right to sign papers because of this lien.
Also, there is a 12 month warranty included in our contract. It is now July and it will be a year in September. We had to hire a structural engineer because laminate beams were installed in our house and were not spanned long enough to support the structure. The engineer states that our house will not be safe for us to live here over a period of time if it isn't fixed. We are in the process of getting a bid to have it fixed which will be paid by us but hopefully reimbursed by the orginial contractor. Time is a concern here.
Our attorney is not doing anything to get this resolved other than playing a patience game waiting for our contractor to sign the final sworn statement. I have had to do a ton of research and bring several things to his attention (e.g., the mechanics lien).
Considering all that we had to pay out of pocket that the contractor claims he paid, when doing the math, our contractor actually owes us money.
Do you have any suggestions on what we should do? We want to get this resolved so we can close on our mortgage securing a low interest rate. Most importantly, we want to get the lien removed at all possible.
I would appreciate your expertise and advise on this nightmare.
Thank you in advance.