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emacon · Aug 27, 2009, 06:01 PM

State of Florida

I had a company do work on an investment property. Some of the work was not done correctly and I made numerous attempts for the company to come back and fix there work. I still owed them money. They had an attorney send me a collection letter. I responded in writing within 30 days disputing what they claim was owed and asked for proof in writing. I did not receive any other letters from the attorney. I was informed 6 months later that a lien was placed on the property. The lien was placed legally. I wrote to the attorney and we have exchanged emails. I received a lawsuit from the attorney 1 day before the closing Via email but I was never served. In order for me to sell the house the attorney added over $5000.00 to what he previously was seeking 6 months ago so I had to pay it so I could have the closing. I wrote to him and told him that I have pictures that show the work performed was unsatisfactory and I am going to file a lawsuit to get the over payment back. He sent me an email stating that I will not be able to win in court because I should have brought up these issues in the original lawsuit and the court will dismiss my case and I will also be repsonsible for his attorneys fees.

Now I did some research and if I am correct the Court does not have jurisdiction over the lawsuit until the defendant has been served. If this is the case I then paid off the lien and not the lawsuit. Also, he refuses to produce a release of lien. Can one of the bright attorney's out there tell me if I am correct and am I still able to pursue the over payment I made at closing and what action can I take since he won't produce a relesae of lien?

Thanks

JudyKayTee · Aug 27, 2009, 07:00 PM

In view of the various legal problems you have experienced while representing yourself I would suggest that you take this question to a Florida Attorney and get a binding legal opinion.

Emails back and forth are not a professional way to handle this matter - either on your part or on the part of the Attorney.

emacon · Aug 28, 2009, 07:19 AM

Originally Posted by JudyKayTee

In view of the various legal problems you have experienced while representing yourself I would suggest that you take this question to a Florida Attorney and get a binding legal opinion.

Emails back and forth are not a professional way to handle this matter - either on your part or on the part of the Attorney.

There is three legal questions:

1) How can I get the attorney to produce a release of lien?

2) Am I correct in that the court did not have jurisdiction since I was never served the lawsuit?

3) If I was never served the lawsuit and the court did not have jurisdiction then did I pay the lien?

JudyKayTee · Aug 28, 2009, 08:59 AM

1 - You either prove the lien is illegal (in Court) or pay it. Then it gets released.

2 - There IS no lawsuit until the Defendant is served UNLESS it's a mechanics lien which, in some States, does not require personal service and could be covered by the contract. Was this, in fact, a lawsuit or an "automatic" lien?

3 - I don't know if you paid the lien or not. If it is not a legal lien you go to Court, prove it is not legal and then don't pay it. You will undoubtedly then be properly served - if necessary - and have a chance to defend yourself.

Some of your language ("I received a lawsuit") is confusing and I still believe you need legal representation.

emacon · Aug 28, 2009, 12:10 PM

Originally Posted by JudyKayTee

1 - You either prove the lien is illegal (in Court) or pay it. Then it gets released.

2 - There IS no lawsuit until the Defendant is served UNLESS it's a mechanics lien which, in some States, does not require personal service and could be covered by the contract. Was this, in fact, a lawsuit or an "automatic" lien?

3 - I don't know if you paid the lien or not. If it is not a legal lien you go to Court, prove it is not legal and then don't pay it. You will undoubtedly then be properly served - if necessary - and have a chance to defend yourself.

Some of your language ("I received a lawsuit") is confusing and I still believe you need legal representation.

1) The money was taken out at closing so the LIEN was paid. It has not been released

2) The contract does not state anything about a mechanics lien.

3) The lien was paid at closing and I also paid extra fees the attorney tacked on. The extra fees which I feel I should not have paid is the money I want to go after.

Let me make this very clear. I was never served the lawsuit. As I wrote before "I received the lawsuit VIA EMAIL". So back to my original question if you are an attorney and you can answer it: If I was never served the lawsuit properly and the court did not have jurisdiction over this case can I file a lawsuit for what I over paid and not have to worry about the court dismissing my case because as the other lawyer put it "I should have brought up my defense as a result of the lawsuit that was filed".

this8384 · Aug 29, 2009, 10:05 AM

Originally Posted by emacon

1) The money was taken out at closing so the LIEN was paid. It has not been released

2) The contract does not state anything about a mechanics lien.

3) The lien was paid at closing and I also paid extra fees the attorney tacked on. The extra fees which I feel I should not have paid is the money I want to go after.

Let me make this very clear. I was never served the lawsuit. As I wrote before "I received the lawsuit VIA EMAIL". So back to my original question if you are an attorney and you can answer it: If I was never served the lawsuit properly and the court did not have jurisdiction over this case can I file a lawsuit for what I over paid and not have to worry about the court dismissing my case because as the other lawyer put it "I should have brought up my defense as a result of the lawsuit that was filed".

You don't "receive" a lawsuit whether it's be telephone, e-mail or dancing telegram. You personally receive a summons which states that you are being sued. Call the courthouse to see if a lawsuit was ever filed. I also am confused as to what "closing" you're referring to, unless you tried to sell the property with a lien on it.

If a lawsuit was not filed but a mechanic's lien was placed, take your proof to the land records office showing that you paid the lien in full. That is, assuming you paid by check or credit card.

I also don't know what you mean by "I paid off the lien but not the lawsuit." If you had paid the lien in full, there is no grounds for a lawsuit. If you did not pay in full, then there is grounds for a suit and if you lose, you will be most likely have to pay the attorney's fees and court costs.

But like Judy said, you'd be better off letting an attorney in your area handle this for you.