All Forum Posts by: William D.

I doubt your contractor could file an enforceable mechanic's lien based on what you mentioned. Most states have Home Improvement Licensing Acts which require certain disclaimers/disclosures, etc. -- notablly, that the contractor probably be licensed.(sarcasm)

Notwithstanding the fact that his lien may be invalid he may be able to collect from you under other methods, such as unjust enrichment or basic breach of contact. While his success may not be as high as it would with the leverage of a mechanic's lien he may be able to get something if he can prove to a court that you were unjustly enriched to his detriment; and thus should be compensated. Coming to a fair and amicable resolution is always the best way out of these issues. You never know when it can come back to bite you.

I guess my first question is how you know whether or not they were notified? Did you search the court file or the land records? Did the party file a motion?

From an abstract point of view, if service of process or notice was either improper or not not given at all then an argument could be made that either the judgment or sale was not binding as to that party. It is a basic tenent of law that a judgemnt rendered without jurisdiction is invalid. Thus, the foreclosure would be valid as to the properly joined/notifed parties but not as to the omitted party. Most states have statutes dealing with omitted parties and what the foreclosing plaintiff must do to join them. I dont know what MA's process is.

From a practical point of view, if the omitted party is a borrower or someone who was on title or a large lien then kill the deal ASAP. If the omitted party is a judgment lien creditor or something nominal you can probably negotiate a release, or have the seller negotiate the release and still go through with the deal so it may not be the end of the world.

Couples points: (1) the attorney for the tenant is correct that you are barred from pursuing your eviction action due to the imposition of the automatic stay. The remedy would be to enter the case and file a motion for relief from stay. This process is not pro se friendly and I am not sure you can even get your motion argued so the issue with appearing in front of the court may never happen. You most definitely should get BK creditor advice if you want to continue with your eviction.

(2) as for your security deposit, the attorney has no right to tell you that it must be forfeited. However, the bankruptcy trustee can claim the deposit as an asset of the debtor's estate if the debtor does not exempt it. This would then make you a creditor and you may be able to recover the deposit back based on your claim. You should make a distinction who you are talking to and who they actually represent.

Hope this helps a little.

Thanks for the post. Interesting read. It is downright scary to think that almost 1/3rd of a Trillion dollars in commerical paper needs to be refinanced or re-negotiated.

Interesting policy. What happens if the landlord stops paying w/s/g, I am assuming they cant terminate service to the tenant? I could see this resulting in a huge increase in rent receivership cases by providers. Are water and sewer lienable in Washington?

Don't neglect the sewer or water bill either.

This topic has been covered pretty well. Just one thing to add is that you may be responsible for their security deposit under your state law if they had one with the previous owner. I know it sounds counter-intuitive but make sure you follow your state's laws regarding notice o forfeiture of the deposit. After it's all said and done you would hate to have them make a claim for their deposit once you have them evicted.

Sorry, I hit reply...

to answer your question: Yes. You can hold them liable notwithstanding the fact that they vacated pursuant to your notice to quit. The claim for what they are liable for is based on the terms of the lease but the ultimate award is granted by the judge subject to your duty to mitigate damages.

And then as George said,..it's a matter of what you are going to be able to collect. Good luck.

You're blending two issues; (1) What does quit mean ; and (2) what are my rights in court regarding the future monthly rental payments contracted to in the 1 year lease.

Without looking the term up, I believe the "quit notice" literally means you must quit possession of the property. Most eviction actions are actions for possession; so, if you (tenant) quit possession as requested I do not need to bring an eviction action against you for the court to award me possession.

The second issue is your ability to get a judgment for the remainder of the monthly rental payments in the lease. A lease is a basic contract so you have a contract claim for those missed payments. It is truly up to the court in its equitable powers to determine what they will award you in damages. You should keep in mind that you have a duty to mitigate damages. So, not only to you have to evidence the tenants breach but you have to prove that you took reasonable steps to get the property rented and were unable to do so.

You have an additional wrinkle present in this situation regarding your corporate bylaws. In most closely held family corporate situations there are specific procedures and methods liquidating shareholders.

You may be over paying a non-majority shareholder wishing to liquidate his shares. He has no leverage regarding corporate operations. There also may be a right of first refusal in place for the benefit of existing shareholders. It would greatly behoove your parents to sit down with a business organizations lawyer to discuss how the "chips" would fall if your parents pushed any of the above options.

It is also a possibility that it would be an ultra vires transaction by the corporation if you converted the units to condos and the corporation could be sued by the dissenting shareholders. It is very important that your parents and other shareholders do their due diligence before doing something like this.