What is the name of your state (only U.S. law)? Texas
So we have a subcontractor that didnt pay his supplier the supplier files intent we have lien waivers from sub that says not only did he pay labor but he paid material as well so we have paid sub all money but 10% retainage and change orders. So we paid some money to supplier and set up payments to pay them out of monies owed to sub. Now sub filed lien for his retainage and change orders what can I do?
What you can do is to consult with your attorney as to whether or not these peculiar circumstances enable you to find relief under
Sec. 53.160 of the Texas Property Code - "Summary Motion to Remove Invalid or Unenforceable Lien". *
But hopefully you can explain to both the attorney and the court
"who paid what to whom and for what" and
"who didn't pay what to whom but should have" much clearer than you have above.
What seems troubling here and could deny you the Texas statutory remedy to contest the validity of the lien is that you have admitted that you have yet to pay the subcontractor the very basis of his claim of lien, to-wit: the 10% retainage and what is owed because of the change orders.
Apparently you are claiming the right to offset against the subcontractor's claim of lien what you paid the claimant's suppliers.
Now whether you can do that in a unilateral fashion and whether or not the summary proceedings are the proper place to litigate these conflicting issues are questions for your attorney to answer.
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[*] To my knowledge Texas is the only state that has had the good sense to adopt specific statutory means of removing such liens. Which speaks better of their law makers than the overpaid clowns that clutter our capitol city four months out of each year.
