Dollars & Sense
To Lien or not to Lien? That is the Question
In this issue, we discuss the self-help remedy that many drivers are using in an all out war to get paid what's owed them. This little used legal maneuver is the pre-judgment labor or mechanic & materialman lien. Used properly, a lien can usually get the results you want much faster than a lawsuit.
Question: I'm having trouble getting paid for some loads that I hauled for a company. Another driver said I could file a lien. Is this true?
Answer: It depends. Most states have a labor or mechanic & materialman lien statute, which sets out what you can file a lien for. If you happen to be in a state that has a good lien statute, you may be able to file a labor lien for the amount that is owed to you.
Question: I filed a labor lien against a company I worked for and seized one of their trailers that I had in my possession. What do I do with the load that is inside?
Answer: Good question! If you take or remain in possession of equipment that a lien is enforced upon, that lien doesn't extend to the property of another that may be inside. For example, if you have a trailer full of ice cream, you better make sure that the product is not ruined or you may find yourself personally responsible for a lot melted ice cream. Remember, the lien is only good against actual property of the person/company that owes the debt to you.
Question: How long will it take for me to get paid on a Lien?
Answer: Once again, it depends. The beauty of a lien is that in most instances it puts the person / carrier that owes you money "between a rock and a hard place". For example, a carrier owes you money, won't pay it to you, so you get a valid lien against their trailer that you've been hauling around.
So, here you are with a valid lien and in possession of your carrier's trailer full of goods. Because you actually have possession of the trailer, the load inside that particular trailer can't be delivered. Because the load can't be delivered, the receiver's bitching to the carrier and the carrier's pulling its hair out because it may lose the account.
So, the carrier then decides that paying what it owes you is much less painful than losing a big account, and you get your check a lot quicker than if you had to sue for it. In reality, the carrier usually pays the lien holder within hours or days in order to free up their equipment.
Question: So how do I file a lien?
Answer: Well, if you're planning on filing a lien yourself, be prepared to spend a lot of time on the project. First, find out what kind of lien statutes you're dealing with, i.e. what's required in the state where you're filing the lien, because lien laws vary throughout the country. Second, do exactly what the particular lien law tells you to do.
We know what you're thinking, "all this lien stuff sounds really complicated." Well, the procedures for filing a lien aren't really that difficult. But, you may want to make a trip to the county attorneys office for assistance or the court clerk can be helpful too.
Of course, you may even want to consult with an attorney that handles a lot of collection cases for guidance. Unfortunately, hiring an attorney to help you may end up costing you more than what's owed to you.
Remember, just because you file the lien doesn't mean that your carrier won't dispute the validity of it and choose not to pay you. Most important, you need to make sure that the amount(s) in question are accurate and that no damage is done to a load or the equipment or you may face a lawsuit later.
We hope you can use the information in this column to help with every day, real life problems you face on the road. We invite you to send us any questions or comments you may have regarding transportation law to:
1330 N. Classen Blvd., Suite 215
Oklahoma City, OK 73106
Phone 405 272-0555
fax 405 272-0558
We look forward to hearing from you.