Title: August 13, 2007
Q. I have a judgment against a customer who did not pay for my landscaping services. How do I get paid?
A. You need to get a lien on his/her real property. The mechanics of creating a lien are as follows: You need to obtain an Abstract of Judgment which reflects the amount and date of Judgment, name and address of creditor (you) as well as the name and address of debtor. The Abstract is issued by the judgment Court. This Abstract is then recorded with the County Recorder in the county where the debtor owns real property. Usually, the judgment lien will be satisfied from the sale proceeds when the property is sold, or refinanced. The lien is secured by the property. You are also entitled to statutory interest, presently 10% per annum. To create a lien against personal property, you need to file a Notice of Judgment lien with the Secretary of State where the debtor resides. Such lien includes information about the creditor and the debtor, the amount and date of judgment and court of issuance and amount of judgment, and the date that the notice was sent to the judgment debtor. Such lien can be used against accounts receivable, equipment, farm products, automobiles and trucks, RVs, etc. The lien will be satisfied when the property is sold. Most often, any property owned by the debtor transferred without satisfaction of the judgment is transferred subject to the lien. This means that if the lien is not satisfied prior to the transfer being made, the property remains subject to the lien in the hands of the transferee, i.e. the property can be taken away from the person who obtained it from the debtor.
Q. I want to incorporate my business. What is an “S” corporation as opposed to a “C” corporation?
A. S and C refer to how the corporation is taxed. An “S” corporation is an ordinary business corporation that has elected to be taxed under Subchapter C of the Internal Revenue Code. It is not taxed on its earnings as a corporation, but instead its earnings are passed through to its shareholders for tax purposes. It is limited to a certain number of shareholders and who may be a shareholder. It is also limited to one class of stock. Losses can be passed on to the investors, two levels of taxation can often be avoided, there is no accumulated earnings tax and there is limited liability protection. A “C” corporation is doubly taxed unless it qualifies and receives IRS approval to be taxed under an “S” corporation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Showing posts with label lien. Show all posts
Showing posts with label lien. Show all posts
Tuesday, March 24, 2009
Monday, March 23, 2009
Legal Eaze #47 Sub-Contractor Lien/Not Bound by Attorney-Client Privilege
Title: May 24, 2006
Q. I hired a contractor to turn my two-car garage into a three-car garage. The contractor collected a deposit of 10 percent plus a material deposit and the remainder of the contract was to be paid when the work was completed. After completion of the project by a sub-contractor, I paid the contractor the remainder of the contract price. The sub-contractor later informed me that he had not been paid by the contractor and that he was filing a mechanic’s lien on my house. Can he do that?
A. Not unless (1) the sub-contractor served you with a 2-day preliminary notice before he began work, or sometime during or immediately after his work was completed or (2) the sub-contractor had a direct contract with you. If a contractor (as opposed to a sub-contractor) has a direct contract with you, there is no 20-day preliminary notice requirement. The contractor is allowed to file a lien within 90 days of completion of the project and then has 90 days in which to foreclose on the lien, which can be done in small claims court.
Q. I went to a lawyer for a legal consultation and my girlfriend came with me. I discussed a family law matter with him. My girlfriend knows everything about my marital problems. The attorney warned me that although he was bound by the attorney-client privilege, my girlfriend was not. What did he mean by that?
A It means that anything that is discussed in an attorney’s office is a privileged conversation and the attorney cannot discuss it with anyone else who is not affiliated with his own office. However, your girlfriend is not an attorney and she is not bound to secrecy. She does not have a duty to keep what was discussed in her presence a secret. As a result, if you ever have a fallout with her, she might discuss your private affairs with anyone she chooses to discuss them with and there will be nothing you can do about it. Hence, when you go to your attorney’s office, it is not always a good idea to bring someone with you. I realize that you may feel the need for mental support from a friend, but that defeats the purpose of the attorney-client privilege. Anyone else present in the attorney’s office, other than his staff, is not bound by that privilege.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. I hired a contractor to turn my two-car garage into a three-car garage. The contractor collected a deposit of 10 percent plus a material deposit and the remainder of the contract was to be paid when the work was completed. After completion of the project by a sub-contractor, I paid the contractor the remainder of the contract price. The sub-contractor later informed me that he had not been paid by the contractor and that he was filing a mechanic’s lien on my house. Can he do that?
A. Not unless (1) the sub-contractor served you with a 2-day preliminary notice before he began work, or sometime during or immediately after his work was completed or (2) the sub-contractor had a direct contract with you. If a contractor (as opposed to a sub-contractor) has a direct contract with you, there is no 20-day preliminary notice requirement. The contractor is allowed to file a lien within 90 days of completion of the project and then has 90 days in which to foreclose on the lien, which can be done in small claims court.
Q. I went to a lawyer for a legal consultation and my girlfriend came with me. I discussed a family law matter with him. My girlfriend knows everything about my marital problems. The attorney warned me that although he was bound by the attorney-client privilege, my girlfriend was not. What did he mean by that?
A It means that anything that is discussed in an attorney’s office is a privileged conversation and the attorney cannot discuss it with anyone else who is not affiliated with his own office. However, your girlfriend is not an attorney and she is not bound to secrecy. She does not have a duty to keep what was discussed in her presence a secret. As a result, if you ever have a fallout with her, she might discuss your private affairs with anyone she chooses to discuss them with and there will be nothing you can do about it. Hence, when you go to your attorney’s office, it is not always a good idea to bring someone with you. I realize that you may feel the need for mental support from a friend, but that defeats the purpose of the attorney-client privilege. Anyone else present in the attorney’s office, other than his staff, is not bound by that privilege.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
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