Subcontractor caught in middle of foreclosure

Q. I was hired by a general contractor to do the heating and air conditioning work on a very large residential rehab. The total cost of my work was around $45,000. As I was finishing the work, I started to hear rumors that the owner was in trouble.

I finished the work and billed the general contractor. He called me and told me to get a lien recorded because the owner was not paying him and he could not pay me. I hired an attorney and recorded my lien.

I have now been served with a Complaint for Foreclosure. Apparently the owner was not making his mortgage payments and his bank is foreclosing. I spoke to an attorney who told me to protect my lien rights, I would need to file a counterclaim in the mortgage foreclosure case. Of course, he wanted a large retainer to do the work.

I've done a little homework and found out how much the owner owes on his mortgage. I honestly do not think the property is worth what is owed.

So, now what? Do I spend a bunch of money with an attorney only to find out that because the loan is more than the value of the property, I don't get anything? If I do what the attorney is suggesting, is there at least a chance I will get some of my money?

This was the only work I did for a long period of time and I cannot afford to come away with nothing out of this.

A. Presuming your lien was recorded timely and is valid, I would probably suggest taking the attorney's advice and file the counterclaim. Even though the mortgage balance may exceed the value of the property, legal theories exist that may allow you to collect at least a portion of what is owed to you. Your attorney can provide additional details.

Q. My husband and I signed a contract to buy our first house. The sellers are getting a divorce. Both the husband and wife signed the sales contract and all seemed to be proceeding smoothly. We are supposed to close in a couple weeks, our mortgage is approved and we have given notice to our landlord that we will be out by the end of the month.

Our attorney received a call yesterday from the seller/husband's attorney. He was told that the seller/wife has changed her mind and now wants to stay in the house. Our attorney was further told that seller/wife would not sign any closing papers.

Our attorney says just wait and let them work it out. Our problem is that in a few weeks, we have nowhere to live. We have a small child and don't have any family we can drop in on. We would like to be a little more proactive than "just wait." Any suggestions?

A. I would have your attorney contact seller/wife's attorney to confirm wife's position. If what was told to your attorney was accurate, I would then contact seller/husband's attorney and ask him what steps he intends to take to compel seller/wife to honor the contract. If his response does not instill confidence, your attorney could file a Petition to Intervene in the divorce case and request the divorce judge enter an order directing the wife to execute the sale documents.

•Attorney Tom Resnick's column appears every other week in Homes Plus. Send your questions to Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.