SUMMARY MOTION TO REMOVE INVALID OR UNENFORCEABLE MECHANIC’S AND MATERIALMAN’S LIEN IN TEXAS.

Lien.jpgIf you hire a contractor and a dispute arises over payment, the contractor may have the right to assert a lien against your property to secure payment for his work. However, sometimes the lien asserted by the contractor may be invalid. If that is the case, Section 53.160 of the Texas Property Code governs the procedure for removal of such lien until it has been proven to be valid in a court of law.

Section 53.160 provides that, in a suit brought to foreclose a lien or to declare a lien invalid or unenforceable, a party objecting to the validity or enforceability of the lien may file a summary motion to remove the lien before a final trial on the merits is had in the suit. The motion must be verified and state the legal and factual basis for objecting to the validity or enforceability of the lien. The motion may be accompanied by supporting affidavits.

The grounds for objecting to the validity or enforceability of the lien are limited to the following:
(1) notice of claim was not furnished to the owner or original contractor as required by Section 53.056, 53.057, 53.058,53.252 or 53.253 of the Texas Property Code;
(2) an affidavit claiming a lien failed to comply with Section 53.054 or was not filed as required by Section 53.052 of the Texas Property Code;
(3) notice of the filed affidavit was not furnished to the owner or original contractor as required by Section 53.055 of the Texas Property Code;
(4) the deadlines for perfecting a lien claim for retainage have expired and the owner complied with the requirements of Section 53.101 of the Texas Property Code and paid the retainage and all other funds owed to the original contractor before the claimant perfected the lien claim and the owner received a notice of the claim as required by Chapter 53 of the Texas Property Code;
(5) all funds subject to the notice of a claim to the owner and a notice regarding the retainage have been deposited in the registry of the court and the owner has no additional liability to the claimant; and (6) the claimant executed a valid and enforceable waiver or release of the lien claimed in the affidavit.

When the lien affidavit is filed against homestead property, the party objecting to the lien may also show that no contract was executed or filed as required by Section 53.254 of the Texas Property Code; that the affidavit claiming the lien failed to contain the notice as required by Section 53.254 of the Texas Property Code; or that the notice of the claim failed to include the statement required by Section 53.254 of the Texas Property Code.

The lien claimant is not required to file a response to the summary motion to remove the lien. However, the claimant and any other party that has appeared in the proceeding must be notified of the hearing at least 21 days before the date of the hearing on the motion. A summary motion to remove the lien cannot be heard before the 21st day after the date the lien claimant answers or files an appearance in the proceeding.

At the hearing on the motion, the burden is on the lien claimant to prove that the notice of claim and affidavit of lien were furnished to the owner and original contractor as required by chapter 53 of the Texas Property Code. If there is another reason to remove the lien besides lack of notice, the burden is on the party objecting to the lien to establish that the lien should be removed for any of the other grounds authorized by section 53.160.

The court must promptly determine a motion to remove a lien under section 53.160. If the court determines that the movant is not entitled to remove the lien, the court will enter an order denying the motion. If the court determines that the movant is entitled to remove the lien, the court must enter an order removing the lien claimed in the lien affidavit until a final trial on the merits of the case is held. A party to the proceeding may not file an interlocutory appeal from the court’s order.

Any admissible evidence offered at the hearing may be admitted in the trial of the case. However, the court’s order described above is not admissible as evidence in determining the validity and enforceability of the lien during the trial of the case.

At the Law Office of Stephen O’Rear, P.C. we help people who need assistance in removing invalid liens against their property.