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Legal Help - (potentially) invalid contractor's lien (1 Viewer)

Softballguy

Softballguy

Footballguy
Curious if anyone has any similar experiences, or can point me in the right direction.

In short, last November we hired a contractor to replace a culvert at the end of our driveway, which also meant replacing a section of asphalt. They assured us the job could be finished before winter, but they were only able to complete replacing the culvert (I get it... weather happens... no big deal). Our bill for the work completed included a note that the remaining work would be finished in the spring. So last November I paid the amount on the bill.

Fast forward to April/May/June... After many unreturned phone calls, the work was finally completed in July. However, instead of replacing the asphalt, the job done much more resembled black gravel loosely being dumped on the area that needed to be patched. It wasn't sealed, packed, or even leveled. It just looked like someone dumped a few buckets of gravel mixed with black gravel onto the patch. I contacted the contractor and explained that the job performed was definitely not what I expected, and I'd be shocked if it was what he was expecting as well. He assured me he'd take care of it. But I never heard back from him. A month later they showed up and did work outside of what was agreed upon, resulting in a bill that was 70% more than what was quoted. When I complained the owner wouldn't hear it, only saying that the work I was billed for matched the work done. The fact that nobody even suggested the upgrade to me, or that I obviously didn't consent to it, didn't seem to matter.

Despite the long delay and terrible customer service, along with the fact that they destroyed my yard near the driveway (rocks and chunks of asphalt everywhere, large divots... basically I have to redo the entire 40ftx10ft stretch of lawn), I still said I would pay the original amount quoted. They refused.

Today I received an intent to file a lien notice. I feel they're clearly in the wrong, and I also feel I was being fair and reasonable in my attempt to find a solution. But it seems like I don't have many options here.

Any advice?

 
bryhamm said:
call an attorney
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The only thing is that it's really not a huge amount of money. And I realize saying that's going to bring the "then just pay it and don't worry about it" responses. Which... fine. But it isn't right and I'm having a hard time finding my recourse when a contractor just jumps straight to filing for a lien. 

 
Be aware of Wis. Statutes section 706.13

706.13  Slander of title.

(1)  In addition to any criminal penalty or civil remedy provided by law, any person who submits for filing, entering in the judgment and lien docket or recording, any lien, claim of lien, lis pendens, writ of attachment, financing statement or any other instrument relating to a security interest in or the title to real or personal property, and who knows or should have known that the contents or any part of the contents of the instrument are false, a sham or frivolous, is liable in tort to any person interested in the property whose title is thereby impaired, for punitive damages of $1,000 plus any actual damages caused by the filing, entering or recording.
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CletiusMaximus said:
Be aware of Wis. Statutes section 706.13
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Any idea who the arbiter of that would be, or how that process would work? Their argument is that they are billing me for the work they actually did. My argument, aside from the exorbitant time it took to complete the project and the fact that they destroyed my yard, is that the work they did is above what was agreed upon. I think the job we agreed upon would have sufficed had they done it correctly, but they never came out to talk to me about even after I asked them to.  

And I do realize that talking to an attorney would answer all of this, but as I mentioned we're not talking thousands of dollars here. I would assume a person would have some sort of recourse short of paying an attorney.

 
Softballguy said:
The work is done; problem is, it's not the work agreed to. 

By their logic they could have paved my entire driveway in gold and I'd be on the hook for two million dollars.
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To me, that’s not done and not what you agreed to which is why you shouldn't have paid the balance  It’s leverage in case something bad happens like this.  Now you’re going to have to deal with a lien from a scumbag contractor.

 
Softballguy said:
Any idea who the arbiter of that would be, or how that process would work? Their argument is that they are billing me for the work they actually did. My argument, aside from the exorbitant time it took to complete the project and the fact that they destroyed my yard, is that the work they did is above what was agreed upon. I think the job we agreed upon would have sufficed had they done it correctly, but they never came out to talk to me about even after I asked them to.  

And I do realize that talking to an attorney would answer all of this, but as I mentioned we're not talking thousands of dollars here. I would assume a person would have some sort of recourse short of paying an attorney.
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This is one item of leverage you have.  The threat is, if they file a lien that is "false, a sham or frivolous," you have a claim against them for your actual damages plus $1k in statutory damages.

 
They did this work in May or June?

Check your state's contractor's lien statute.  In most states, you only have a 90-120 days to record the lien.   Could be it's six months where you live.

Either way, usually these statutes come with attorney's fees, so if it's a wrongful lien and you win, you get your fees.   Worth paying an hour of attorney time to find out.

 
Softballguy said:
The only thing is that it's really not a huge amount of money. And I realize saying that's going to bring the "then just pay it and don't worry about it" responses. Which... fine. But it isn't right and I'm having a hard time finding my recourse when a contractor just jumps straight to filing for a lien. 
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I had a crappy contractor try this kind of thing with me. I filed a complaint here. They were very helpful. WI as well. 

 
johnnycakes said:
Are you satisfied with the work they did, exclusive of cost considerations? 
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Sort of. The actual asphalt work is ok... not great, but acceptable I guess. The giant chunks of rock and asphalt in the yard, along with the ruts and ripped up grass all along our ditch is not acceptable. We live on a country road, and there's a drainage ditch along the road. That entire area is torn up and will need substantial work to get back to where it was. 

 
-fish- said:
They did this work in May or June?

Check your state's contractor's lien statute.  In most states, you only have a 90-120 days to record the lien.   Could be it's six months where you live.

Either way, usually these statutes come with attorney's fees, so if it's a wrongful lien and you win, you get your fees.   Worth paying an hour of attorney time to find out.
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We signed the contract in November. The culvert was replaced in November, but by the time they had time to replace the asphalt cut out to get the culvert out, it was too cold to finish. Instead of coming back in spring, they came back mid July, dumped black gravel on the driveway, and then finally finished the job mid August. So they're still in the window.

 
parasaurolophus said:
I had a crappy contractor try this kind of thing with me. I filed a complaint here. They were very helpful. WI as well. 
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Nice, I'll check that out. Thanks.

I did file a complaint with the Better Business Bureau. The contractor has yet to respond to them. Not sure what kind of teeth they have anyway, but at least I was able to document all the problems the day I tried to work something out with the contractor.

 
Softballguy said:
Nice, I'll check that out. Thanks.

I did file a complaint with the Better Business Bureau. The contractor has yet to respond to them. Not sure what kind of teeth they have anyway, but at least I was able to document all the problems the day I tried to work something out with the contractor.
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BBB has no teeth unless the guy has an A+ rating, since then it means he pays and obviously values the reputation. That DATCP guy was very forceful. 

 
The plot thickens...

Last month after receiving the bill for work I did not authorize, I went down to my contractor's business to discuss what I thought... what I had been told by the project manager... was a mistake on their end for not correcting the price. But since the project manager was notoriously slow to respond, and my sense of the company became increasingly untrustworthy, I turned the recorder on my phone on before I entered the building. So I have our entire conversation recorded and the quality is quite good.

In their letter to me, they claim: 1) "tried your best to intimidate our receptionist" 2) "threw my bill at her because it had a stamp on it that said past due" 3) "screamed at her that I did not authorize the work completed" 4) "I threatened to report her and her reply was to put a lien on my home".

All four of these are laughable when you listen to the recording. I was extremely pleasant with the receptionist for the 17 seconds I talked to her. I just matter of factly pointed out that the date issued on the bill was over a month earlier than when the work was complete, to which she agreed and said it was not past due. This exchange was mostly pleasant and with a tone inconsistent with me doing anything remotely like throwing a bill. At no point did my voice raise any more than slightly above normal... very slightly. I did not get upset the entire time; I was even pleading for her to understand where I was coming from. And finally, she was the one who threatened placing on lien on my house first as she walked out of the room. I replied that I would file a report with the BBB. 

My big question is: is it legal to record someone like this? If it is, I've got her crushed on four outright lies, which constitutes half of her response. Can I reply to her with the actual quotes that were said? 

In their response they also just made up time lines that I have texts and phone records showing are patently untrue, and they also lied about what was said between my wife and the owner...their claim is that my wife authorized the work. That's absolutely untrue. 

Up until this sham of a letter I was just out to stop a dud contractor from squeezing some extra money off me. But now this has gotten personal and they've just resorted to outright lies which I can show, without a doubt, are lies. I just don't know the legality of having something recording in my pocket.

ETA: from what I can tell, Wisconsin is a one party consent state. So only one of the parties needs to give consent to being recorded. It looks like I may be able to use this, right?

 
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Softballguy said:
My big question is: is it legal to record someone like this? If it is, I've got her crushed on four outright lies, which constitutes half of her response. Can I reply to her with the actual quotes that were said? 
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Seems like Wisconsin is a one party consent state so its not illegal to record a conversation you're a part of.  I know of someone being brought up on charges in PA for it but we're a two party consent state.

I did see something about it possibly being inadmissible in court unless its used to refute testimony to the contrary but that seems like your case here anyway.  You probably should wait to hear from one of our lawyer types though.

Long story short, for the first time you're lucky to live in Wisconsin.

 
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Lehigh98 said:
Seems like Wisconsin is a one party consent state so its not illegal to record a conversation you're a part of.  I know of someone being brought up on charges in PA for it but we're a two party consent state.

I did see something about it possibly being inadmissible in court unless its used to refute testimony to the contrary but that seems like your case here anyway.  You probably should wait to hear from one of our lawyer types though.

Long story short, for the first time you're lucky to live in Wisconsin.
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Right now I'm more upset at the outright lies and demonstrably fake allegations she's claiming against me. It would be easy to disprove all her claims with the recording, and it seems like with WI's laws I'm safe, but the law is a scary beast. I don't want to walk down the wrong path.

And screw you... the Brewers are in the NLCS. WI aint so bad... right now, anyway.

 
Softballguy said:
Right now I'm more upset at the outright lies and demonstrably fake allegations she's claiming against me. It would be easy to disprove all her claims with the recording, and it seems like with WI's laws I'm safe, but the law is a scary beast. I don't want to walk down the wrong path.

And screw you... the Brewers are in the NLCS. WI aint so bad... right now, anyway.
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Do not let the contractor or the secretary know that you have the recording. Perhaps they would claim you came in another time (more than once). They seem like real scum and obviously would lie again. 

 
Softballguy said:
And finally, she was the one who threatened placing on lien on my house first as she walked out of the room.
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I've been thinking about this.  Unless she's the owner, what standing does she have for this?  And you can't put a lien on a property because someone yelled at you (whether it happened or not).  Helpfully, they put that in writing.  It odes demonstrate that they are less than forthright.

 
It doesn't sound like a big dollar item or major additional cost the way you are talking about it. You might want to consider taking this contractor to small claims court over the unauthorized additional costs.  Small claim court Judges generally don't look kindly upon this type of  contractor shenanigans and you could balance the costs back to even for you. The costs to go to small claims are very small and you don't need a lawyer. Most parties just represent themselves and the Judge really just looks at what seems fair or right.  Should be an easy thing for you to do.  In our state of Colorado the small claims is up to $7,000 now days, but it used to be more around $3,500 twenty years ago.  So outside of a major contract issue it is your best and cost effective resource.  Plus the Judges usually side for the little guy in an action.  Also if the Judge declares the contract price the right dollar amount and what final payment should be, then the contractor would be in a liable position with a lein placed with a different amount listed. Win/win

  Also a contractor Lein has to be perfected and acted upon in certain time frames to have any impact to you and the property.  If they don't take you to court to perfect it will just fall away and be of no consequence in about 1 year. Most leins like this are used as a scare tactic since the contractor doesn't want to spend the money to perfect, nor do they usually have proper proof and position to perfect the lein in front of the court. Anyone can easily file a lein, but perfecting it takes time and money since it is so serious an action.  Also they would only really consider perfecting the lein if you had good equity on the property. Otherwise they need to be able to take out the first lein position "your mortgage company"  and any other entities in a lein or secondary positions to be able to collect the claim.  I know certain property owners who have their own entities put a second mortgage or lein on their own property just to make them look lein proof and avoid the unscrupulous type contractors who would act like this guy.   You can also do a "bond around a lein. Which is essentially putting up the money through an insurance company bond until the court settles the lein case.  If the contractor doesn't perfect his lein within the year then the bond is dropped and everything is done.  The cost of a bond is around 2-5% of the amount of the lein, plus your pledge to pay the full amount if need be. Sort of like a bail bond I guess.  

I am not an attorney, but I had been a contractor for years and know the lein and small claims sides well.  Small claims was our best method of collecting from bad customers who refused to pay the final costs on a contract.  While I'm not a contractor anymore I do own multiple large industrial properties and I have had to deal with stupid and the unscrupulous type contractors from time to time. I have bonded around leins and called contractors bluffs about unwarranted charges.  None have ever tried to perfect a lein against us since they were all bogus charges to begin with.   Good Luck, but it really isn't hard to do small claims or wait out a lein.  

 
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Softballguy said:
Curious if anyone has any similar experiences, or can point me in the right direction.

In short, last November we hired a contractor to replace a culvert at the end of our driveway, which also meant replacing a section of asphalt. They assured us the job could be finished before winter, but they were only able to complete replacing the culvert (I get it... weather happens... no big deal). Our bill for the work completed included a note that the remaining work would be finished in the spring. So last November I paid the amount on the bill.

Fast forward to April/May/June... After many unreturned phone calls, the work was finally completed in July. However, instead of replacing the asphalt, the job done much more resembled black gravel loosely being dumped on the area that needed to be patched. It wasn't sealed, packed, or even leveled. It just looked like someone dumped a few buckets of gravel mixed with black gravel onto the patch. I contacted the contractor and explained that the job performed was definitely not what I expected, and I'd be shocked if it was what he was expecting as well. He assured me he'd take care of it. But I never heard back from him. A month later they showed up and did work outside of what was agreed upon, resulting in a bill that was 70% more than what was quoted. When I complained the owner wouldn't hear it, only saying that the work I was billed for matched the work done. The fact that nobody even suggested the upgrade to me, or that I obviously didn't consent to it, didn't seem to matter.

Despite the long delay and terrible customer service, along with the fact that they destroyed my yard near the driveway (rocks and chunks of asphalt everywhere, large divots... basically I have to redo the entire 40ftx10ft stretch of lawn), I still said I would pay the original amount quoted. They refused.

Today I received an intent to file a lien notice. I feel they're clearly in the wrong, and I also feel I was being fair and reasonable in my attempt to find a solution. But it seems like I don't have many options here.

Any advice?
Click to expand...
Update?

 
Did they send you a "Right To Lien" notice when they started work? If not, then any lien they file can be pretty easily dismissed.

 
Update - After considering how I wanted to move forward knowing I have proof that her claims against my character are bs, I decided to put it all out there. My goal is just to be done with them. 

Before rebutting the owners inaccuracies regarding the timeline of events and what we supposedly agreed to, I went on full attack mode in defending my character. I detail how her letter to the BBB is potentially libel, and how malicious, demonstrably false attacks on my character will not be accepted. I let them know that I did record the conversation, which is within my rights, and that it irrefutably shows not just a bending of the truth, but that her attack on my character was defamation. Which, I explained, undermines her credibility completely in this matter.

I then went on to document the actual timeline with dates and times of text message exchanges between me and the VP, and address more of her lies that I didn't have an audio recording of. 

My argument was that I am not going to pay more because 1) they changed the contract without discussing it with us, 2) they destroyed a 40'x8' section of my lawn, 3) there are still chunks of asphalt and rock in my yard, and 4) the project was supposed to be finished in November of 2017, but didn't get finished until mid August.

Finally, I wrote:

My actions moving forward are as follows:

·         I will mail a check to *Contractor* for $$$$, the amount agreed upon with Mr. ***** on June 12, 2018 for the completion of the project. Again, at no point did I authorize any deviation from the stated amount. *Contractor* will now have received $***** from me for this project. This check will be sent October 12, 2018 via certified mail.

·         I will be filing a complaint with the Wisconsin Department of Agriculture, Trade and Consumer Protection in response to the threat of a lien against my home.  Detailed in it will be a cause for “Slander of Title,” § 706.13, Wis. Stats, as well as my case for defamation as a result of the letter posted at Better Business Bureau on 10/5/2018 by *****.

·         Further efforts on placing a lien on my home will result in a claim seeking damages regarding the destruction to my property, including but not limited to replacing the lawn to its previous condition and removing the debris left from the project.
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I have to think they'll just leave things alone, but who knows. They're definitely not the brightest people. In any case, the defamation stuff really pisses me off... saying I intimidated one woman and screamed and threw something at another woman.... that's not right. 

 
You’re only going to sue them to repair the ditch if they don’t drop the lien? You shouldn’t be out of pocket for that. 

Nice work overall on this. 

 
belljr said:
You left out

§ 706.13.a, Wis. Stats - 

Eat a ####
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Oh no, it's there. 

My actions moving forward are as follows:

·         I will mail a check to *Contractor* for $$$$, the amount agreed upon with Mr. ***** on June 12, 2018 for the completion of the project. Again, at no point did I authorize any deviation from the stated amount. *Contractor* will now have received $***** from me for this project. This check will be sent October 12, 2018 via certified mail.

·         I will be filing a complaint with the Wisconsin Department of Agriculture, Trade and Consumer Protection in response to the threat of a lien against my home.  Detailed in it will be a cause for “Slander of Title,” § 706.13, Wis. Stats, as well as my case for defamation as a result of the letter posted at Better Business Bureau on 10/5/2018 by *****.

·         Further efforts on placing a lien on my home will result in a claim seeking damages regarding the destruction to my property, including but not limited to replacing the lawn to its previous condition and removing the debris left from the project.
Click to expand...

 
Just received the contractor's response:

"Thank you for showing the public your true side.

A check in the amount of $$$$ is enclosed. The balance is $$$$, not the $$$." 

First of all, I exposed her of lying, with proof, and she says I'm showing my true side? That's just bizarre. 

Not sure what to do when someone receives your payment, but then sends it back because it is not enough. 

I think I'm going to pursue more of these mediation remedies, and then look into small claims court for at least my yard, possibly defamation. Normally I wouldn't want to go this far, but this is such a slam dunk dispute that I don't think I can pass it up. 

 
What do they mean by "showing the public your true side"?

I thought this was just a letter you sent them. Sounds like there is more to this story than you are letting on.

 
gianmarco said:
What do they mean by "showing the public your true side"?

I thought this was just a letter you sent them. Sounds like there is more to this story than you are letting on.
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I haven't posted anything other than through BBB, which is technically public. "The text of your complaint will be publicly posted on BBB's Web site..." She would have nothing to respond to other than my 2nd letter. I assume she's referring to the fact that I would secretly record them, but I can't say I understand her kind.

Definitely nothing more to the story. I went to them on 9/11, filed a BBB complaint on 9/11, they replied on 10/7, I sent my 2nd complaint (detailed above) on 10/12, and she replied with that today. That's the only back and forth we had.

 
Softballguy said:
The only thing is that it's really not a huge amount of money. And I realize saying that's going to bring the "then just pay it and don't worry about it" responses. Which... fine. But it isn't right and I'm having a hard time finding my recourse when a contractor just jumps straight to filing for a lien. 
Click to expand...
I don't think you understand how contractors work. Basically they could not get a job telemarketing or selling used cars.

 
I wouldn't send them a dime at this point. Let them sue/file a lien/whatever, then hire an attorney and burn them to the ground. Go after every last tiny damage and punitive dollar you can squeeze from them.

 
Gotta say I'm glad you're fighting this and I hope the legal system's actions and responses favor the rightful side they should in this situation.

 
Beef Ravioli said:
Update?
Click to expand...
The BBB has closed the case. They're listing it as "Answered - the business addressed the issues within the complaint, but the consumer remains dissatisfied."

As I detailed in my letter, I sent them a check for about 60% of the balance due, which is the last agreed upon amount between us and them. They returned the check stating they would only accept the full amount. 

I filed a complaint last week with The Department of Agriculture, Trade and Consumer Protection. We'll see where that goes. I plan on keeping my word that if they continue with this lien bs, I'm taking them to small claims court for the damage to my lawn. 

:popcorn:

 
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