Placing Mechanic's and Materialman's Liens -- Suppliers' and Subcontractors' Procedure for Ensuring Payment on Residential Construction Projects

As our economy sours in the face of exorbitant gasoline and commodity prices, more and more residential builders -- particularly custom home builders -- are experiencing financial problems, resulting in the non-payment of suppliers and/or subcontractors. Many times, the builder has already drawn upon the owners' loan or construction account for the work or materials furnished, but failed to remit the funds he collected to those actually performing the work or supplying the materials. Although such conduct is a violation of the texas Trust Act and is actionable, often times, a subcontractor or supplier will not be in a position to pursue monies owed through litigation. In these instances, a quicker (and often more effective) way of ensuring payment is through the placement of a Mechanics or Materialman's Lien as precribed by Chapter 53 of the Texas Property Code. But be careful, the Lien statute is tricky, and has complex procedural processes and deadlines, which must be strictly adhered to.

One of the key deadlines is found in Section 53.052(b) of the Texas Property Code, which requires that a person claiming a lien arising from a residential construction project file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the third calendar month after the day on which the indebtedness accrues.. Liens which are filed after this time may not be enforced.

Another important section of Chapter 53 is Section 53.054, which lists the specific information which must be contained in the affidavit. If any of this information is omitted, the affidavit and accompanying lien may be invalid.

Suppliers, vendors and subcontractors who want to ensure that their lien interests arising from non-payment on a residential construction project should contact an attorney experienced in residential construction claims.

Trey Wilson is named as one of San Antonio's Best Real Estate Litigation Attorneys, as Voted on by his Peers and Reported in "Scene in SA" Magazine

The September 2008 issue of "Scene in SA Monthly Magazine" contains a listing of the best lawyers in San Antonio, as rated by their peers through ballots issued by the magazine. The listings are divided by various practice areas, and Trey Wilson is listed as one of the "best real estate litigation attorneys in San Antonio." Being included on this short list of distinguished lawyers is a real honor, especially since the voters were my peers -- other San Antonio lawyers. Essentially, my competition has acknowledged my hard work, zealous courthouse advocacy for my real estate clients, and efforts to always be fair, ethical and easy to work worth. I am grateful for this recognition, and hope to remain as "one of San Antonio's best litigation attorneys" for years to come.

Eviction Appeals and Pauper's Affidavits -- What to Do When a Tenant Appeals an Eviction and Doesn't Pay Rent

Many residential tenants are smarter than they are given credit for. They often default on Lease Agreements by not paying rent to the landlord. Eventually, the landlord gets fed-up, and files an eviction proceeding with the Justice of the Peace either personally, or through an attorney. The tenant often attends the eviction hearing and offers everything but to pay the rent. Inevitably, a Forcible Entry and Detainer or Eviction Judgment is entered by the Justice Court. But this often isn't the end of the road. It seems like more and more evicted tenants are filing appeals to the County Court at law. After all, it's pretty easy, and in many instances FREE. That is, wise tenants are availing themselves of the procedure whereby the can file an appeal , and stay the award of possession of the premises to the landlord, by filing an "Affidavit of Inability to Pay Costs for Appeal," more commonly known as a "Pauper's Affidavit." Once this Affidavit is filed, the costs for filing the appeal are waived, and the tenant has effectively managed to negate the Judgment of Eviction that the Landlord had to jump through hoops to secure.....or has he?

Texas Rule of Civil Procedure 749b(1) requires that tenants who appeal a Judgment of Eviction based upon Non-Payment of rent to pay into the Registry of the Justice Court one rental period’s rent under the terms of the rental agreement. This usually requires that one month's rent be paid shortly after the appeal is filed. At the latest, this rental payment must be made to the Court Registry within 5 days after filing the Pauper's Affidavit. Failure to timely pay this "good faith" rental payment can result in the Court granting possession of the premises to the landlord immediately -- even if the appeal is still pending.

If you are a landlord who is the victim of a frivolous appeal by a tenant who simply wishes to extend his "free rent" arrangement (which you never agreed to in the first place), you should contact experienced legal counsel to handle the appeal. An attorney familiar with Evictions and Landlord - tenant law could very well be the difference between you collecting rent or getting stiffed for a long period of time while the appeal works its way through County Court. For more information about appeals, check out the Evictions section of my website. You'll be glad you did!

Visit Trey Wilson's Home Page www.sa-law.com

Trey Wilson is the principal attorney of R L Wilson, P.C. Law Firm in San Antonio, Texas. R L Wilson, P.C. is the premier advocate in South Central Texas for individuals and organizations in crisis. We are a multi-practice San Antonio law firm that offers uniquely wise and effective solutions to diverse and complex legal issues, and delivers timely, favorable results in a manner that adheres to the highest standards of excellence and integrity. Our firm successfully serves the needs of major corporations, government entities, small companies, associations and individuals at every stage of the legal process and on both sides of the docket.

Visit the online home of R L Wilson, P.C. at www.sa-law.com

Welcome to Sword of Justice -- the San Antonio Law Review

Welcome to the San Antonio Law Review! This Blog -- Sword of Justice -- is intended to be a review of the legal issues of our day, from the perspective of Trey Wilson, a lawyer in San Antonio, Texas. Our name derives from a somewhat obscure but powerful quote by a relatively unknown frenchman -- "The Sword of Justice Has No Scabbard." This quote is profound, in that it acknowledges that there is never a cease-fire or even temporary truce in the fight for justice, and that Lady Justice's sword must remain eternally unsheathed -- ever ready to strike down the unjust. It has always been inspirational to me, and serves as the perfect counter-part to to Isaiah 48:22, which proclaims that there is "no peace for the wicked." (often misquoted as "there is no rest for the wicked"). This blog will be updated frequently with stories, entries and pictures from the life and times of a lawyer practicing in San Antonio. On these pages, I will track and offer commentary on the stories that make San Antonio's headlines, and on the issues encountered in my law practice. I hope that you find it refreshing, antertaining, and maybe even a little educational.

I am not offering free telephone consultations at this time

I just got back from vacation. My mom has been falling several times in the past couple of weeks. I need to focus on her medical issues.

I am only answering questions via my email - fran@familylaw4u.com.

I hope to be back at work full-time around January 1, 2009.

If you need an attorney, please feel free to call either Patricia Bushman at 713-807-9405 or Judith Ann (Judy) Ritts at 713-666-0646. Both are excellent attorneys. They will quote you a deposit over the phone. Both take credit cards.

Thank you for your patience and understanding.

Fran Brochstein
fran@familylaw4u.com

This One's On Me!!!

Here's some international coverage from the Economist concerning article 59 abuses across Texas. As many of you know, article 59 of the Texas Code of Criminal Procedure is the way our trusted District Attorneys go about seizing millions of dollars in "drug dealer" assets. You would think that this money then goes to help out children or crime prevention. Well sometimes it does and sometimes it can pay for a pretty awesome margarita machine. Montgomery County District Attorney Mike McDougal used article 59 seizure money to acquire a margarita machine for the county fair. Maybe the first toast at the party was to all of the defendants that could make the party possible. This one's on me!