I'm beginning to see a pattern emerge. I get stiffed on a job, file a lien, owner gets foreclosed, i get screwed. If I get shut out one more time by foreclosure I'm going to go jihad on somebody and start burning chite' down.
UGGGGGGGGGG!
California Appeals Court Rules Oral Promises Are Binding
02/09/2011
A California appeals court ruling could have far reaching effects for servicers who believe oral promises do not carry weight.
Last month, the three judges hearing the case of Aceves v. U.S. Bank found that the bank had promised to negotiate a loan modification for a customer while intending to proceed with the foreclosure on the customer’s house.
The plaintiff, Claudia Aceves, was on the verge of filing for Chapter 13 bankruptcy protection, but was told by the bank that she could receive a loan modification instead.
Unlike Chapter 7 bankruptcy, which would have required Aceves give up her home, Chapter 13 protection would have helped her stay in her home.
Aceves did not file for bankruptcy protections, and the bank foreclosed on her home, claiming, “an oral promise to postpone either a loan payment or a foreclosure is unenforceable.”
But the court ruled that while, in the absence of consideration a gratuitous oral promise ordinarily would be unenforceable, but, “under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.”
Because Aceves was pursuing another plan of action in order to keep her home, and decided against it once the bank promised to negotiate a modification with her, the bank was bound to keep that promise, and breached it by continuing with the foreclosure.
http://www.dsnews.com/articles/california-appeals-court-rules-oral-promises-are-binding-2011-02-09
That sucks buddy. Don't worry, someone will be along very shortly to tell you that it never happens to them because they have a contract, get money before releasing plats, stalk the people, beat them up, et cetera.
I'm sure you've thought all of this out.
The only thing that I would say, and I'm a little fuzzy on this one, is how you can elevate your status during bankruptcy by being a type of creditor who is secured.
How you go about doing this, well I'm not sure, but it's similar to banks which is why they, even though you may have a corporation, get you to put up personal items. You may speak to an attorney about things you may could do that would make you a secured creditor that would elevate your status and put you at the front of the line during bankruptcy.
Sorry for your woes, we all feel them.
Probably sucks more for the foreclosed.
Warning, language for grown ups
[flash width=640 height=390] http://www.youtube.com/v/eVy5LGAi_MQ?fs=1&hl=en_US [/flash]
Yep, once that senior leinholder aka "the bank" forecloses, all the junior leins get hosed.
Sorry that happened to you dude.
Another reason to get a retainer.....at least your expenses would be covered.
Cash On Delivery...
We had a similar situation wherein the buyer waited for the bank to foreclose on the property before purchasing. We had a lien on the property for 17K. Upon the new purchase, we filed another lien on the property. When they went to get their construction loan we popped up again. They were some kind of pissed. Several threats and phone calls later, we settled for 9K. The attorney was very upfront, the cost analysis said anything over 10K warranted going to court (where I am sure I would have lost), anything under wasn’t worth it and they would just pay. Not certain I would recommend this action, but it worked for us.
> We had a similar situation wherein the buyer waited for the bank to foreclose on the property before purchasing. We had a lien on the property for 17K. Upon the new purchase, we filed another lien on the property. When they went to get their construction loan we popped up again. They were some kind of pissed. Several threats and phone calls later, we settled for 9K. The attorney was very upfront, the cost analysis said anything over 10K warranted going to court (where I am sure I would have lost), anything under wasn’t worth it and they would just pay. Not certain I would recommend this action, but it worked for us.
Can't they sue you for clouding title? Sounds like straight out fraud to me, but what the hell do I know.
They would have to prove that they did not use my survey in their decision to purchase the property. Hard to do when they used our boundary survey at their closing with the bank. Like I said, I think I would have lost in court, but "fraud"? I'm out 17K and being accused of fraud? That's exactly what their attorney called it as he was handing me my check. Business is not for children.
> Hard to do when they used our boundary survey at their closing with the bank.
you left that part out.
sounds like 2 different scenarios. in this one, my survey was ordered by the owner. the owner defaulted on his loan and was foreclosed upon. all liens are wiped clean. if i then went and filed another lien for the work i did for the original owner but now against the bank that owns it that would be fraud. claiming to be owed money that i am not legally owed. if you cloud a marketable title with a false claim you can be liable for damages.
in your scenario your survey was used by the new owner. mine is not.
apples to oranges, but glad you found a way to get paid.
> Cash On Delivery...
Due on receipt..., and yes, it's stipulated in the contract.
I don't care how they pay, but it's not going to be "contingent" on anything other than delivery of the product and bill. I don't care what kind of 'arrangements' they're 'used to', and no, I never have any problems with not being paid. It's funny, too, cause I wouldn't see that mindset as being ethical for, say, a doctor. Many times they have to provide services that can mean the difference between life or death regardless of whether or not the patient can pay for that service right then. Fortunatly, surveyors are never in that position. Guess that's why the doctors make the big bucks?
I was stiffed by one of my very first clients, and it was my fault. I knew they were sleezes and not likely to pay, and I still did the survey. Utterly dumb on my part, but I sure learned.
I run a stealth operation, known only to a select group of clients, all of whom will make sure I get paid. Quality referrals are everything in this business.
> I was stiffed by one of my very first clients, and it was my fault. I knew they were sleezes and not likely to pay, and I still did the survey. Utterly dumb on my part, but I sure learned.
>
> I run a stealth operation, known only to a select group of clients, all of whom will make sure I get paid. Quality referrals are everything in this business.
SUPERMAN!!! where you been man. glad you found this place.
That was a lousy attorney. The elements of Fraud are not even close to being there. Your lein attached to them because they used your service. I hate to give any ideas, but all they had to do was find some smack to drive by and do an inspection based on your real survey. Then they wouldn't have to pay you. As it was, they owed you the whole shot. You would have won had it gone to court.
Drive By Truckers are one of the great things I've discovered over the years hangin' out with you folks, great video.
Yeah, blows dead weasels, but know you are not alone.
There is no way to plan or anticipate who is going to bail on payment, know of too many good businesspeople whom folded leaving outstanding balances to creditors.
It pretty much comes down to trust. If you extend it liberally, once in a while you get burned. I've personally found the benefits to far outweigh the loss.
Don't let the next new client pay the price you can't extract from the old one.
Good to hear from ya Bruce! Are you still sitting on a gold mine operation?
