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  1. #1
    StorHouse is offline Junior Member
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    Default Opposition to Lien

    If someone has sent us an opposition to lien can we restart the lien process all over again and then if this time they do not send us an opposition can we sell at the next auction. Or does the first opposition stop any way from it ever happening. Someone said we could can anyone shed some light on this.
    Many Thanks

  2. #2
    Gina6k's Avatar
    Gina6k is offline Moderator
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    What state are you in? That may be the defining factor, based on your state's lien laws.

    The couple of oppositions we have received, we have contacted the tenant, explained that the opposition they signed is stating in effect that they dispute the charges and that they have made payments that were not posted to their account.

    Since they know this is not the case, we offer them a chance to rescind their opposition. It is especially helpful if you point out this is the purpose of the opposition (there is a mistake somewhere) and offer to go over the account with them. Most know they haven't paid anything and when you add in the part that says they are responsible for your legal costs when they lose... well, they get the picture.

    Most seem to think it is a way to stop the auction until they can get some money together and don't think of the ramifications.

    So far, the three we've received in over 12 years have all opted to come in and sign off to undo their opposition.
    Gina 6k
    CochraneStorage dot com
    Morgan Hill, California
    twitter.com/CochraneStorage

    You only live once, but if you do it right, once is enough!
    I am not an attorney, just an experienced manager who is willing to share what I have learned. Your thoughts, practices or opinions may vary and neither of us may be right.

  3. #3
    Autodoc's Avatar
    Autodoc is offline Mod eMeritus
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    It's fun when they realize that by falsely signing the form they have committed perjury.

    Here in California the OtL is a PITA!!! I sure hope they are successful in getting rid of it.

    I would recommend checking with your lawyer as to how to proceed properly. Be very careful.
    Wayne
    Jamestown, ND


    All arguments can be resolved ... with high explosives and Humor!!!

  4. #4
    StorHouse is offline Junior Member
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    Default Answer

    We are in California

  5. #5
    Gina6k's Avatar
    Gina6k is offline Moderator
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    Be very careful. Check with your attorney for more precise advice. I personally would not 'restart' the lien process. You have a legal document in hand opposing the lien. You must proceed accordingly.

    Since I've never been in your situation, I know the first thing I would do is pick up the telephone and call my attorney. If you don't have one, I know a great one who is in CA, and an expert on the lien laws. Shoot me an email if you need contact info.
    Gina 6k
    CochraneStorage dot com
    Morgan Hill, California
    twitter.com/CochraneStorage

    You only live once, but if you do it right, once is enough!
    I am not an attorney, just an experienced manager who is willing to share what I have learned. Your thoughts, practices or opinions may vary and neither of us may be right.

  6. #6
    Autodoc's Avatar
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    Quote Originally Posted by StorHouse View Post
    We are in California
    I'm sorry


    Seriously though -- what Gina said.

    Also try to talk with the tenant and explain what they are up against if they do not cancel the opposition.

    We have been lucky with the few times we have encountered this problem - after explaining about the legal fees and how much our lawyer charges per hour and that THEY will be responsible for ALL the fees and charges they have backed down and stated that they did not what their stuff sold. We politely explained that they could avoid the sale by paying their balance.
    Wayne
    Jamestown, ND


    All arguments can be resolved ... with high explosives and Humor!!!

  7. #7
    JohnSD is offline Junior Member
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    Default

    Unfortunately, you can't simply restart the lien process in hopes of avoiding the ramifications of the Declaration in Opposition. The practice could potentially be viewed as an unfair or deceiving business practice. Furthermore, you have already perfected you statutory lien. By restarting the process you may inadvertently cast some doubt on the validity of the lien, which could have huge implications if, for example, the occupant files for bankruptcy.

    The advice you received so far is very good. The idea is to explain to the occupant the consequences of the Declaration with a letter or a phone call. Unfortunately, this doesn't always work. Sometimes, the occupant simply has no money but there is property of overwhelming sentimental value in the unit. In this situation, the occupant may feel that they have nothing to lose, which is bad news for the operator. A court judgment for a million dollars is not worth the paper it is printed on if the occupant simply does not have any money to pay it. The old expression is you can't get blood from a turnip.

    If your occupant won't withdraw their opposition you have a few choices. One, you can negotiate. Two, you can file a complaint to enforce your storage lien in civil court (can't go small claims). Or three, you can file a unlawful detainer action. There are advantages and disadvantage to all three which you should discuss with your attorney.

  8. #8
    Chuck_Siegal is offline Member
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    Default opposition

    When someone files an opposition, try to get them to see you face to face and negotiate a deal "Offer in Compromise". Get them to move out as fast as you can so you dont have to pay the attorney's fees. If you cant, they have the right to be heard in Superior Court. You cannot start the lien process over. You have to get a judgement or get them to withdraw their opposition. In the judgement, you ask for a monetary award and the right to sell the property. (Keep in mind that small claims court in California can only award money. They do not have the authority to evict the tenant. So if you go to smalls claims court and then sell the unit after the judgement, you can still be liable.)
    The views expressed on this posting are not necessarily the views of anyone, including me. Nothing in this message should be construed as advice to anyone, nor should it give the impression that I actually know what I'm talking about.

 

 

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