Can A Sub File A Lien Without A Roofing License?

efritts75

I know this topic was addressed in another thread, however the answer still eludes me. I have called the state and read all the lien info I can get my hands on. My attorney is doing the best he can however the subs atty is not returning calls nor is she responding in writting. I have called some attorneys that say this is a state issue and won't affect lien rights. Others say a lien for labor on a roof cannot stand when the person performing the work is not qualified or licensed.

I am confused. The customer is refusing to pay anything until the lien is lifted and as it sits I am now unable to operate do to cash flow issues. I have been in contact with a few other companies and am trying to get them to buy out my jobs. So far nothing is a done deal yet though.

Chris Johnson

Where are you located? In CA without a valid contractors license you have no leg to stand on. You can not lien, sue or demand any type or form of payment without a license.

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Chris

efritts75

I am located in Illinois and we have strict laws regarding this. I just can't seem to get a definitive answer.

Personally I would think since the state requires licensing unlicensed people would be without rights. That is just my personal opinion though.

KentWhitten

Everyone has rights. You can file a lien all you want. What happens after that depends on having correct documentation and other similar stuff. If you file a lien incorrectly, then you will be at a disadvantage. If you file for too much, again at a disadvantage.

Besides, liens don't do anything to someone who knows how to handle them. Posting a lien will get you nowhere. They make lien insurance for these situations and the bank is more than willing to let the lien-ee know how to do it. The bank is the primary lienholder and they will find anyway possible to keep it that way.

Tell the customer you will come over with a signed lien release as long as they have a signed check.

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If you correct your mind, the rest of your life will fall into place ~Lao Tzu

Custom Cabinetry - Portland, Cape Elizabeth, Scarborough, Kennebunkport, Yarmouth, Falmouth, Cumberland, Ogunquit, Maine

Salmon Falls Cabinetry

silvertree

In Minnesota anyone can file a lein, an unlicensed person filing a lein could be sued for doing so. The lein will still be on file. You have 2 issues, proving the person who filed has no right to do so and then having the lein removed. Both will take time. After this you can sue the leiner for damages. This is serious stuff where I work.

efritts75

The customer is being advised not to pay me no matter what I do until the lien is released. He gave me a check for $10,000 then stopped payment on it. This along with another customer who's check for $7,334 bounced has seriously impaired our ability to operate. I am a small guy and have basically run out of money even for the attorney's fees. Worse yet I have 5 different customers calling wanting to know when their getting their roofs. The situation is quickly spiraling out of control and last week I borrowed the last of my available credit line to make payroll.

skyhook

None of this makes sense.
Are you a Licensed GC and the roofer is your sub?
Are you the un-licensed roofer/sub?
Are you the home owner?
Why did the HO stop payment?
Did you have a contract with progress payments?
Nobody can help you if you don't fill in the blanks.

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JumboJack

I'm not sure if that is totaly accurate.If an employee of a sub is not paid I am pretty sure that the employee can file a lien.

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in texas with framing and cornish people will do it for 3.00 a foot. What do yall think about that? Just laber

KentWhitten

Yes employees can file liens. Like I said, anyone can file a lien, but it could have implications down the line if you are not allowed to. Workers can file liens, but I'm not positive in every single state. I would think so. There is still the process of properly filing a lien. If it's not, then you could be countersued for damages incurred to the lien-ee. Either way, lawyers usually duke it out. 'Tis the season too, so most are on vacation or not around.

Your best bet is to contact the HO and have a talk with them. If that doesn't go through, then you need to get in touch with the HO's lawyer and your lawyer should be doing that. But if you have no money, you are in a real predicament.

Contact the HO and beg if you have to.

__________________
If you correct your mind, the rest of your life will fall into place ~Lao Tzu

Custom Cabinetry - Portland, Cape Elizabeth, Scarborough, Kennebunkport, Yarmouth, Falmouth, Cumberland, Ogunquit, Maine

Salmon Falls Cabinetry

silvertree

Your right and that is the law in Minnesota, if this person filing the lein is an unpaid employee they can file, but it must be properly done. If the lein filer is an unlicensed contractor or someone who represented themselves as a licensed contractor they will be in deep doo doo. They have no rights to lein or even ask for payment. The law is very clear on this. The HO was advised to stop payment to protect their interest. I don't like to say this but whoever hired this guy is screwed for hiring him.
But this part confuses me, efritts75 says the sub is unlicensed and unqualified. Then my question is "Why did you have this guy on your job"?

Chris Johnson

If the employee is working under a contractor, the contractor if unlicensed would not be able to obtain workers comp or liability insurance without a contractors license. If the homeowner still proceeded to work with the unlicensed then yes they would have some form of libility to the employee (I don't know exactly what it is, but I would assume wages would be). If the contractor is licensed than the employee has rights to the bond we post with the state.

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Chris

efritts75

I am neither a GC nor a Sub. I have a company that does roofing, siding, windows, etc. We run an ad people call we go sell them product and we work with a number of different subs to get the jobs installed. This sub signed a master agreement saying he was responsible for all permits, licenses, and insurance to complete this work. His work is not in question and I believe he is licensed in KY where I first began working with him.

The Homeowner stopped payment on the advice of his banker and his attorney. I don't really blame him for this but I have alot wrapped up in this project. It has been a nightmare through all phases and is way over budget. At this point I am only trying to minimize my losses.

Putting lipstick on a pig I have been told.

Chris Johnson

Hang on a second here...you advertise, get the job, give it to someone else who signs the contract, who do they sign with, you or the HO? If it's the HO why is the HO paying you and not them?, If they sign the contract with you and you in turn have a contract with the HO then you are the GC.

Sounds like you are trying to beat the system and got caught

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Chris

Chris G

Why did the HO stop payment if the quality of work is not in question?

efritts75

The homeowner signs a contract with my company.

My company then hires a subcontractor we have a number of them we work with. Each sub signs a master sub contract agreement which is good for one year. Then each job is ran on an attachment A basis. The attachment A outlines costs and scope of work that sort of thing.

Our homeowner really never does any business with the sub. They communicate and pay us. Until this fiasco anyway. I understand this is much like what a GC does however I really wouldn't consider myself or my company a GC. Really we are just salesman. I have an installation manager who oversees all the installs, customer issues, service, and ordering. We were doing very good but the old saying when it rains it pours is definitely ringing true at this time.

The homeowner stopped payment so he wouldn't have to pay for his roof twice. If he pays me and the subs lien is deemed good then he could possibly be forced to pay the sub if I didn't. The homeowner is only trying to guard against double payment or liens.

We are getting off point here. The question still remains unanswered really but it seems that the lien can be filed it just can't be perfected.

Chris Johnson

You are a GC, like it or not

Now follow the rules like the rest of us

Ins, WC, etc. LICENSE

I know you don't believe it, but you are trying to beat the system...no sympathy from me

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Chris

silvertree

This changes everything, your company does sales only and hands it off to the (low, I assume) bidder of your choice. You rely entirely on subs that you haven't even checked out properly. Dude, it sounds like you didn't do anything to protect the homeowner, so now they are protecting themselves. Ya lost me now!

skyhook

You pay the sub, get a lien release. Show it to the HO and get paid. Or let the HO pay the sub direct and give you what is left over. If you are looking to get the money to pay for past jobs, and using the next job to pay for this one, that is known as a Pozzi Scheme and is tantamount to fraud in Ca. Preliminary liens are customary these days. The sub did the right thing.

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efritts75

I have ins., and WC, I am not required to have a roofers license as long as I am using subs. I have contacted the licensing department and they gave me this info.

I am not paying the sub a penny. He did not finish the job left the site a total disaster. I was left without a crew and had to hire others to come in and finish the work. I am not paying for this job twice. His bill is insane and will not be paid, especially since the contract between he and I states. That he will not be paid until he has supplied lien waivers. I did pay all of the expenses he turned in such as hotel and travel. I am trying to be as fair as possible here.

The home owner is happy with me and the guys that finished the work. He is FURIOUS with the sub that filed the lien and he to believes the amounts are insane. The sub is asking for more money than I had in the whole roof and he never supplied one piece of material.

Again we are off point. The question is can he file a valid lien without a license?

Ed the Roofer

You did not read through everything I posted in your other thread about this matter. I know what I am talking about, especially when it comes to the Illinois Mechanics Lien Act.

Firstly, youare the "Primary" contractor by Illinois Mechanics Lien Law definition. You have the contract with the HO. Your roofing sub is unlicensed in Illinois it sounds like. That is reason enough to challenge the lien.

The expedite the court proceedings, as I informed you previously, you need to file a motion for him to bring the lien suit to court. He will then have 30 days to do so. If he does not, the lien is wiped out. End of story.

Also, if you desire, you can sue the sub for filing a frivolous lien action.

Check out the site link I provided for you in the other thread from the Chicago based attorney named Thomas Westgard. If you just Google Illinois Mechanicl Lien, you will stumble on his site within 1-2 pages also. All the information and proper forms and instructions are on his site. If I put that information on another thread, look for a thread started by me recently called Illinois Mechanics Lien Info in the roofing section, or something similar to that.

I know it is stressfull, but even if you have to stay up late at night read through all of the stuff I already posted. Or, pay a lawyer $ 500.00 to $ 1,000.00 to tell you less than that amount of information.

Challenge The Lien.....NOW!

Ed