Lien filed after bankruptcy filed. What the!

[illinoispatriot]

I filed Bankruptcy on Oct 8th 04 and was discharged in Dec 04, now I just received a call from a company I bought an home AC from. They told me that they have a lien on my house. To my surprise its the first I've heard of it.
They did not show up to the Creditors meeting and the dept was discharged. I also learned that they filed the lien three days after my Bankruptcy was filed.

Can someone explain this to me, where do I stand.

[FilingOnMyOwn]

The debt is uncollectable. If you need to hire an attorney to remove the lien, then do it.

[FloridaGirl]

Yes, what they did is soooo illegal. Now, you will have a lien on your credit report. Consult an attorney. I'm not positive, but you may have grounds to sue.

[Minnymouth]

In other words they run down and filed a lien the same time they received the notice from the Court you had filed BK..... how interesting, huh....
Yes it will take the efforts of an attorney to get this removed from the Court records.....
You can dispute it on your credit report and force them to remove it there.....

Keep us posted...

[SinkingFast]

Yep!

What the others have said is correct. You'll have to have an attny to remove the lien on file at the Court House.

Maybe a cheap way to go to sue them is Small Claims Court. Check into the limint you can sue for in your area and the fee to file. Since an attny is gonna cost you some $$ and that lien has probably cost you increased interest rates and possibly some Creditors have turned you down for loans, you'd have a case for a decent little settlement from them for breaking the law. At the very least, you'd get back your attny's fee to have the lien removed plus your court costs.

The local creditors are always the pesky pains in the butt. I have to wonder if these people are even bright enough to know they broke the law??!!

[illinoispatriot]

Wow! I am in debt to all of you for your advice. Thanks so much for your time.
I do have an appointment with my attorney today to discuss this.

[scammer]

Wow! I am in debt to all of you for your advice. Thanks so much for your time.
I do have an appointment with my attorney today to discuss this.

I don't post much cause I am up to my eyeballs with work, and spend little time studying the new bk laws, I don't want to say something incorrect . But I am working on something in the state of Missouri regarding a lien on my vacation home. I believe the term first is mechanics lien, the contractor in Mo. for example has six months to get it on there after the work is completed. So you probably can get it lifted but the stay stops the clock and starts up again when the stay is lifted. Mechanical liens have a ton of rules, I am having my attorney attempt to declare it a unsecured debt, but I can't believe we will be successful. After all, if you keep the asset and the law allows him to put it on your property within six month, he will just throw it on after your discharge date.

[SinkingFast]

Scammer,..........

I believe you are right about the Mechanic's Lien thing. We were on the look out for one on our house in Missouri.

I got a bid from a guy about new windows. I told him the bid sounded OK, but I had appointments with a couple other window people already set up. I wanted to meet with them first before doing anything. We agreed that he was supposed to check back with me to see what I'd decided before he ordered anything.

A couple weeks go by. I'm busy getting other bids and have another contractor already working at the house, when this guy calls one evening. He wants $1200 to pay for the window's he'd ordered for our house. I said, "Excuse me??" The guy told me that I'd said to go ahead so he'd ordered the windows. I hadn't signed a thing agreeing to let him work on our house. Hadn't authorized him, in writing to do the work. Nothing.

Then the guy threatened me with a Mechanic's Lien. So I waited a month or 2, called the Court House, found out how Mechanic's Liens were filed. Then Son and I went down one day, and physically sifted thru the filings. By Contractor and by person filed against. We didn't find a thing. The guy was just blowing smoke. He was trying to scare a woman who's husband was gone, living on her own, trying to manage a house and 3 teenaged kids, into making the decision he wanted me to make.

But, in this particular case, the poster had already filed BK when the company ran out and filed the Lien. Either way, if the Creditor was included, the debt was discharged.

[scammer]

u sure sf

They have x amount of time to get it on, after stay lifted they go throw it on again, isn't it a secured deal? please think about this again, i am not sure.
That would mean above poster and me keep the improvement for free??

[no_it_all]

The debt is uncollectable. If you need to hire an attorney to remove the lien, then do it.

Yes, what they did is soooo illegal. Now, you will have a lien on your credit report. Consult an attorney. I'm not positive, but you may have grounds to sue.

Incorrect. It is not illegal to file a lien before, during or even after bankruptcy in most states.

In other words they run down and filed a lien the same time they received the notice from the Court you had filed BK..... how interesting, huh....

In many states, including Illinois, a mechanics lien is automatically generated when a homeowner has work done...In other words, a lien is to be presumed..In addition, it is perfectly ok to establish a mechanics lien after a bankruptcy filing...Some states allow a mechanics lien to take first position ahead of a mortgage!!

Yep!
What the others have said is correct.

No it isn't

I believe the term first is mechanics lien, the contractor in Mo. for example has six months to get it on there after the work is completed. So you probably can get it lifted but the stay stops the clock and starts up again when the stay is lifted. Mechanical liens have a ton of rules, I am having my attorney attempt to declare it a unsecured debt, but I can't believe we will be successful. After all, if you keep the asset and the law allows him to put it on your property within six month, he will just throw it on after your discharge date.

Exactly!! Not only are most mechanic liens secured debt, but they are preferred secured debt..

But, in this particular case, the poster had already filed BK when the company ran out and filed the Lien. Either way, if the Creditor was included, the debt was discharged.

Incorrect. Often a mechanics lien will not be discharged. Remember, it is priority, secured debt. If the debtor reaffirms, he gets the lien as well. It is quite possible that the creditor can even force a foreclosure sale to motivate the debtor to pay. Many states allow mechanics liens to be perfected after a bankruptcy filing...

[no_it_all]

Can someone explain this to me, where do I stand.

I don't often say this, mostly because the vast majority of stuff on this site is related to bk and those laws are fairly simple...BUT..as one other poster noted, mechanics lien law is very convoluted. It is state law and if my hunch is right that you live in Illinois, they have some of the most creditor friendly laws around, to wit:
The basic concept of the Illinois Mechanics Lien Act is that if an owner of land in Illinois hires a contractor to build or repair a building on the land, and then the owner refuses to pay the contractor, the contractor can sell the land and the building, and take the amount owed plus attorneys' fees and costs of suit out of the sales price.

OH, it gets even better: A mechanics lien generally has priority over a prerecorded mortgage. Unlike almost everywhere else in the United States, Illinois property law creates an exception to the "first in time" rule that automatically defeats most other liens and mortgages in the Mechanics Lien Act. An Illinois mechanics lien even has priority over your mortgage in bankruptcy.

Unless you are ABSOLUTELY sure about the discharge and everything else, I would pay a hundred bucks or so for a thirty minute consult with a lawyer...good luck...

[scammer]

no it all

Thanks for confirmation, I thought I was right but didn't want to stick my head out. Are you sure that they can file the lien during the file date to discharge? can you check that again? I thought the stay stops the clock and restarts after discharge that is the way it is in MO. My studies of the mechanics, no pun intended, of this are directed toward MO.

didn't know this though;

In many states, including Illinois, a mechanics lien is automatically generated when a homeowner has work done...In other words, a lien is to be presumed..In addition, it is perfectly ok to establish a mechanics lien after a bankruptcy filing...Some states allow a mechanics lien to take first position ahead of a mortgage!!

wow

[no_it_all]

Yeah, they do NOT mess around....

The Illinois Mechanics Lien Act is automatically included as a matter of law in every construction contract in the state of Illinois, even if it is not mentioned anywhere in the contract, and even if the parties to the contract are not aware of the existence of the Act.

Don't ever confuse what is <right> and what is the law...they are not necessarily the same!!!

[SinkingFast]

NIA,............. I love (NOT) how you pull one tidbit and make it sound like it was the whole statement.

You posted the "Yep. The others are correct." without the "You'll need an attny to have the lien removed."

In my particular case, I never signed a repair agreement with that contractor. Never even officially hired him in the first place. I decided to use another contractor to do the Window Replacement for us. That man never laid a hammer on our house. And just as a CYA, I still have the original, unsigned Estimate/Contract. AND, the contractor that did do the install, called the other guy's supplier posing as an assistant to check on my order. He gave dimensions and such for so many windows and a set of patio doors, even specified the color. The guy never really did place the order in the first place.

That idiot was just threatening me. He's retired Marine Corps and he thought he could BULLY a little old WOMAN into doing what he wanted. I pitty his wife.

If he does file a Mechanic's lien against the house, well good for him. He can deal with Countrywide. It'll be their baby. But I seriously doubt he did file one. Son and I couldn't find it last summer. Our Realtor just ran current Title Work on our house in March, '06. Title is clean. Nothing shows.


And something else, Scammer. We have very good friends in MO. The Hubby and wife are both attnys. So when this guy threatened the Mechanic's Lien action I called my GF. She said I needed to chat with her Hubby because he was better versed in Real Estate law. Hubby said, even if the contractor did file the lien, the attny could get me out of it. BECAUSE, Hubby's name is on the Deed, AND the loan on the house was in Hubby's name, AND Hubby was out of state at the time, AND Hubby did not agree in writing to have the service performed. GF's Hubby quoted some legal Statute which I don't remember now that covered that type of thing from happening in MO. Evidently spouses have gone and run up bills on homes to get back at the other spouse when the marriage/relationship is headed for divorce/break-up.

Here's a link to MO Statutes about Mechanic's and Realtor Liens.

http://www.moga.mo.gov/statutes/c429.htm

In Missouri it's not implied. It has to be written in the contract:

(d) delivered with first invoice, a written notice which shall include the following disclosure language in ten-point bold type:

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC'S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR "LIEN WAIVERS" FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

http://www.moga.mo.gov/statutes/C400-499/4290000012.HTM

[scammer]

Sf

Yes, I am glad you confirmed the way I think it goes down in MO. Alot different than IL

"In Missouri it's not implied. It has to be written in the contract:"

I also read all the garbage that has to be done up front before lien can be done.

thanks