gotta take a jerk to court...

hello all!



you'll like this one methinks, or, maybe not...



recently did a hardscaping job for a "client." we started in april, finished june 14th (was a big job).



to make a long story short, we discounted the final bill on the job about $12k to cover some errors and stuff on our part, as well as to be fair...



...because the original estimate was for $15-18k. the final bill ended up being 25k (after discount). the customer signed a contract up front that stipulated the estimate was only that and may not reflect the final and actual costs of the project. we stipulated up front several things that would affect the final outcome and could raise the costs of the project - all of which he agreed to. he could, at any time, ask for costs to date and also ask us to cease work without penalty.



the customer doesn't feel he should pay the full 25, but will pay 22. he feels the final bill is just too high and won't work for him.



our position - hey, we discounted to allow for [many things to cover the issues] stuff, and that's as far as we can go.



he is now in default since last thursday (he had ten days to pay the balance due).



we've tried with three seperate communique's to explain the bill (in writing and verbal - sticking to our position) and the guy wants to ARGUE the bill.



so, as a result, we are taking him to district court. he owes $7,200+ to pay the balance of the bill. we will be suing for the balance and any recoverable damages.



we will be serving him with a verified NOTICE OF DEFAULT AND OPPORTUNITY TO CURE (giving him until friday to cure) tomorrow (wednesday), along with a certificate of service, and then filing in district court as soon as we have the necessary paperwork completed to file the case (you know, affidavits, copy of original contract, etc.). the NOTICE will contain the verbage from the contract showing his default as well as our intent to immediately bring an action in district court to sue for balance due and recoverable damages.



ok, and the killer is: HE IS HAPPY WITH THE WORK WE DID!!!!



what a maroon!



anyway, any of ya'll have some helpful statements for us to whittle away on over this case? i'd really like to keep the case to the contract at hand without the judge/court attempting to assert any "State of Maryland" regulations concerning any contractual crap (and i'm sure that may happen).



in our affidavit of fact in support of the case we'll be citing everything we can, factually speaking, that will eliminate/address any potential "argument" he may bring, but ya can't anticipate everything...



so, just looking for helpful remarks here!



thanks much - this site is great, i've learned a great deal and have even positively impressed my brother (a lawyer/attorney) with the contract i wrote that we use for our jobs - thanks to all here!



jon

[Ice]

Don't forget that you have the right to lien his property. This will affect his overall "credit". We have discussed elsewhere in this forum. Rule #64 of the FRoCP... you may need copies of the initial action which state the relief you seek, contract, and the affidavit of debt.



It's just one more reason that he would want to clear up this situation. A lien can be a powerful tool if used properly within the law.

thank you, ice, for the reply. yes, i am aware of ucc fs against his property post-judgement and was looking forward to having to use it (ok, not really, don't like to have to go this route, but hey, if you make me...)...



at any rate, the guy called us early this morning and stated he would "meet us halfway" on the difference between what he owed & what he was originally willing to pay.



we decided to accept that (and i'm still sour about it) as the costs of court & collection would outweigh the difference.



so, for now, case closed.



appreciate the commentary!



jon

[Ice]

I wasn't talking about a UCC FS against this debtor. I was talking about a lien under rule 64 of the FRoCP and the common law. The UCC is only "public notice", but the other is evidence of an actual court "action". This hurts a lot more than a UCC FS.



And, you could regain all the "costs" for the collection action (court costs, etc.) if you were to seek relief in court. He bluffed you with the "meet you 1/2 way" stunt. He didn't have a leg to stand on after he breached the contract by defaulting on payment.



What do you think he would have done if you had refused his offer? ... hmmm? What do you think his reaction would be at receiving a copy of the lien along with the summons/complaint?



You might want to make sure that your future contracts contain statements regarding any costs you may incur for any collection activity stemming from their breach by non-payment. In that way you will be able to recoup any monies paid for filing fees and whatnot.



Ice

[Jerseee]

Jon,



ever heard of a Mechanics Lien?

hi ice, jerseee!



ice: i was not aware of the type of lien you mention. sorry for the assumption. the collection clause was already in the contract, i refined it a little further after that experience (added a "recoverable damages" phrase). i agree that we could recover all costs, etc., and that the guy had no leg to stand on. however, the owners (my parents) are not quite as "stiff" as i am...



jerseee: i had seen the term bantied about here, but hadn't any time to research it...



jon

[Jerseee]

REad up on a mechanics lien. You can even do a UCC 1 with that once its filed.

[suijuris]

In the Federal rules of civil proceedure Rule 64 allows the filing of a lien to secure the judgement that will be forthcoming in the action IMMEDIATELY AFTER THE COMPLAINT IS FILED!



Most states have a similar law - here in south carolina we have the same law, and it is even called rule 64!



Go figure - small claims in SC allows you to sue for $7,500, and file a lien at the onset of the actions.



Here is a question for Ice - what if one filed the action with supporting affidavits, then filed the lien, then decided they did not have time to pursue the action at the present and withdrew the action for a later time, leaving the lien in place?



Would that not put the defendent in my origonal action in the position of having to go on the offensive in order to remove the lien, or settle up? Would that not be a disadvantage for them, as the burden of proof now lies with them should they begin an action in court for removal of the lien?

[Jerseee]

SJ,



Very interesting question. But moreover, it would appear if that was done, the palintiff wants the defendant to come to court on his own. I believe you told me before that a lien lasts 99 years?



So it would appear like a strategy by the claimant to have the debtor come forward sooner or later; since the lien can impede commercial movement.



And your post gave me an idea about my situation as well. Thanks.

i could be mistaken, however, sui juris, i think you answered your own question:

lien to secure the judgement that will be forthcoming in the action IMMEDIATELY AFTER THE COMPLAINT IS FILED

the key there is that the judgement is forthcoming, but not yet won...



jon