Contractor files lien, now named in foreclosure suit
Q. Last summer, I finished a basement for a guy. He's been very slow paying me. After a bunch of excuses as to why he couldn't pay me, I finally recorded a lien against the property. I figured sooner or later I would get paid.
The sheriff came to my home yesterday and served my wife with a summons and complaint for foreclosure. It looks like this guy that I did the work for has not been paying his mortgage and he is now in foreclosure.
Why am I named in the foreclosure? Is the mortgage company looking to me for money? Do I have any chance of getting paid what's owed to me? The summons says I have to file an Appearance. What's that?
A. You are named in the foreclosure lawsuit as a result of your having an interest in the property. Any party with an interest in the property becomes a defendant in the foreclosure lawsuit. Filing a mechanics lien creates an interest in the property.
No, the mortgage company is not looking to you for money. However, they do need to resolve your interest in the property to obtain clear title.
You still have a chance to collect some or all of what is owed you. Unfortunately, it will probably take a further financial investment to realize this benefit.
If you do nothing, you will be defaulted in the foreclosure lawsuit. This means you will lose your lien rights in the property. You would retain any rights you might have in a breach of contract action against the homeowner. Given that the homeowner is in such financial straits that he cannot pay his mortgage, there's a good chance there would not be any money available to pay any judgment you might obtain against the homeowner.
To preserve your lien rights, you must file an Appearance and Answer to the foreclosure lawsuit. You will probably need to retain an attorney to accomplish this, though retaining an attorney is not a requirement. Once your Appearance and Answer are filed, depending on numerous factors such as the value of the property, what is owed to the mortgage company, when you filed your lien and how many other parties have an interest in the property, you may receive an offer from the lender to resolve your lien claim.
In the event you cannot come to a resolution with the lender, you could elect to litigate your claim. There are numerous issues involved in these lawsuits and this type of litigation can get expensive. If the homeowner owes you a few thousand dollars, it would probably be best to get what you can from the lender and call it a day.
I would suggest consulting a real estate attorney to evaluate your position.
Q. I am considering quit claiming my house to my wife. I have run into some big problems with my company and I don't want any creditors going after my house. Is this a simple thing to do?
A. Quit claiming property is a very simple thing to do. You fill out a quitclaim deed and record it in the county where the property is located. A quitclaim deed conveys any interest you have in a property to the grantee.
Before taking this action, you need to consider the Fraudulent Conveyance Act. In general, the Act states that a party cannot convey property for the purpose of avoiding having the property subject to creditors.
If you have "big" problems as you state, any conveyance would be scrutinized and probably attacked as fraudulent. I would suggest consulting with an attorney before taking any action.
•Send your questions to Attorney Tom Resnick, 345 N. Quentin Road, Palatine IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.