Complaint to Discharge Lien

XXXX

Address

Telephone Number

Email: 

XXXX             Plaintiff,

vs.

RUPCOE PLUMBING, HEATING & 

AIR CONDITIONING, INC. 

               Defendant

 Superior Court of XXXX___________ Division _________ County

___________ Part

Docket No: 

civil action

complaint
  1. Plaintiff, BENJAMIN RICH, files this Complaint, against RUPCOE PLUMBING, HEATING & AIR CONDITIONING, INC., and alleges the following:

                              

                                 NATURE OF ACTION

  1. This is a civil action to vacate a mechanic’s lien. The Plaintiff seeks the discharge because: the Defendant did not do any work in the Plaintiff’s property, the Notice of lien was improperly served, and the Defendant failed to follow the arbitration requirement under the law. Accordingly, the Plaintiff seeks for an order to discharge the said lien The Plaintiff also seeks any other relief offered by law.

THE PARTIES

  1. Plaintiff, BENJAMIN RICH, is an individual, a resident of Union County, New Jersey. The Plaintiff owned the property described as Block 144, Lot 13, on the tax map of the Municipality of Rahway, County of Union, State of New Jersey (also known as 345 Elm Ave., Rahway, New Jersey 07065) (“the Property”).
  2. Defendant, RUPCOE PLUMBING, HEATING & AIR CONDITIONING, INC., is a company organized under the laws of New Jersey with its principal place of business at Central New Jersey. 

FACTUAL BACKGROUND

  1. On or about XXXX, the Plaintiff engaged the services of the Defendant to repair a broken-down boiler.
  2. There was no written contract prepared for the engagement. Instead, the terms for the repair were as was in the invoice thereby drawn EXHIBIT A, page 7.
  3. Consequently, the Defendant sent an employee only known as XXXX to do the work.
  4. The said employee replaced the boiler’s copper piping with black piping. The employee kept coming to the property for two or three days but did not replace the boiler.
  5. The Plaintiff spoke with the Defendant’s owner who stated that he was not aware that the employee was removing the copper piping and that he would tell him to return the piping. The Plaintiff has never received the copper piping to the date of this Complaint. Accordingly, the Plaintiff reported the incidence at the Rahway Police Department on or about XXXX. EXHIBIT B, page 8.
  6. The Plaintiff hired a different company to complete the job on or about XXXX. EXHIBIT C, page 10.
  7. Afterwards, the Plaintiff intended to put the property on the market for sale and noticed there was a mechanic lien on it. EXHIBIT D, page 11.
  8. The said lien was not properly served. Besides, the Defendant failed to recognize the mandatory arbitration requirement under XXXX law.
  9. The Plaintiff paid a bond to the County court so he could sell the property.  However, the Plaintiff’s attempt to make the Defendant discharge the lien bore no fruit. EXHIBIT E, page 15.
  10. Until the time of this complaint, the defendants have not lifted the lien per the Plaintiff’s demand letter. 

           GROUNDS FOR DISCHARGE OF LIEN

  • FAILURE TO ADHERE TO THE REQUIREMENTS FOR A NOTICE OF UNPAID BALANCE AND RIGHT TO FILE
  1. The Defendant failed to serve the Notice of the Unpaid Balance and Right to File in accordance with NJSA 2A:44A-21(b)(2).
  2. The Defendant failed to serve a demand for arbitration in accordance with NJSA 2A:44A-21(b)(3).
  3. The Defendant failed to initiate an expedited arbitration proceeding before a single arbitrator with the American Arbitration Association within ten (10) days from the date of the Notice of Unpaid Balance and Right to File is lodged for record, in accordance with NJSA 2A:44A-21(b)(3). 

 

  • FAILURE TO ADHERE TO THE REQUIREMENTS UNDER THE CONSUMER FRAUD ACT
  1. The New Jersey Consumer Fraud Act (“CFA”) provides requirements that home improvement contractors must adhere to.  It follows, the Defendant failed to comply with the requirements in the following manner:
  2. There was no signed and written contract for the transaction (NJSA 56:8-151 and NJAC 13:45A-16.2). Under the Construction Lien Law, a contract must be in writing to evidence the responsibilities of both contracting parties. (NJSA 2A:44A-2). 
  1. The Defendant’s employee did not display an identification badge (NJSA 56:8-138.1 and NJAC 13:45A-17A.14).
  2. The Defendant made product and material misrepresentations (NJAC 13:45A-16.2(a)(2)). Notably, in the Notice of Unpaid Balance and Right to File, the Defendant made misrepresentation when it affirmed under oath that a written contract existed between the Plaintiff and the Defendant. This not only amounts to a material misrepresentation, but also to a fraudulent affirmation. It follows, the Defendant is liable for perjury under New Jersey law.
  3. The Defendant did not complete the work per the terms in the invoice (NJAC 13:45A-16.2(a)(7)).
  4. The Defendant failed to provide timely notice for delay in performance (NJAC 13:45A-16.2(a)(7)).
  5. The Defendant failed to provide a copy of written guarantees or warranties (NJAC 13:45A-16.2(a)(11)).
  6. The Defendant’s invoice failed to include required language (NJAC 13:45A-17.11(f)).   
  7. The Defendant’s inability to follow up on the said theft of copper pipes from the Plaintiff, unprofessional actions, and unreasonable workmanship amounted to a violation of the New Jersey Consumer Fraud Act and the House Improvement Contractor’s Registration Act. (NJSA 56:8-2).    

                             PRAYER AND RELIEF

WHEREFORE, Plaintiff BENJAMIN RICH respectfully requests that this Court enter judgment in his favor and as against Defendants as follows:

  1. This honorable court issues an order to discharge the said lien.
  2. Plaintiff be awarded compensatory damages suffered because of Defendant’s conduct, an amount to be determined at trial, plus interest and costs.
  3. For punitive damages based upon the defendants’ conduct.
  4. For all costs of suit incurred herein; and
  5. For such other and further relief as the Court deems appropriate. 

DATED: ________________________             

Respectfully Submitted,

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], a copy of the foregoing Complaint has been sent to the Defendant in the following address:

[ENTER ADDRESS FOR DEFENDANT].

    

ADDENDUM

EXHIBIT A- INVOICE

EXHIBIT B- POLICE REPORT

EXHIBIT C- INVOICE OF express heating and cooling company 

EXHIBIT D- NOTICE OF LIEN

EXHIBIT E- DEMAND LETTER

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