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Contractor holding us hostage...

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TKT2RDE

Guest
What is the name of your state? Oklahoma


It will be difficult to sum this up without adding too much detail, but here goes nothing...

I signed a contract with the architect who designed my home. He had successfully contracted a few well-built homes and offered his services for less than what a seasoned contractor could offer. The contract was for him to act as a general contractor and build the home he designed for a fixed fee, and the payments were set out to be paid on specific dates over a 6 month period (the final payment due upon receipt of certificate of occupancy). The contract identifies him as the overall manager. Our agreement included him managing the funds thru a draw system with my bank.

Three months into the project, it became increasingly clear that he had no idea how to properly manage the financial end of a project. To make matters worse, communication efforts on his part began to deteriate to near non-existence. The bank has rules on draws that basically work on a system of: builder submits draw, bank inspector verifies the work outlined in the draw as actually complete, draw approved or partially approved, funds deposited into builder account. Pretty simple.

Six moths into the project, and due to extreme overages, mismanagement (i.e. paying accounts he didn't draw for with money intended for other accounts), no budget reconsiliation (leading to bounced checks), a questionable check written to a yet to be verified vendor, paying himself his final payment prematurely in violation of the contract, and lack of communication with myself and the bank... he managed to get himself in a situation where there was no money to draw based on what had been accomplished.

When I found this out, I offered to help him resolve the issue. We met and he provided his checkbook duplicates from which I created a ledger representing all payments made out of his account for the project. We also discussed the communication issues which he promised to resolve. I balanced the budget so to speak and found contingencies that the bank would allow us to draw upon. I created a draw request and submitted it to the bank. While it was being processed, I began trying to contact him about items that needed attention before I left on a trip. These items included discussing what to do with the $1684.00 balance left after the account was reconsiled, along with assessing what to do about the fact that he had paid himself in full before he was supposed to. It was basically more of the same as I could not reach him and he did not return any of my inquiries.

We had discussed the possibility of me taking over the finances as a result of the mess that he created. I really did not have time to take on this responsibility, and the consensus was that I was paying him to do it and so he should. However, after being faced again with not being able to reach him after having just discussed the issue... I decided that I should take over the finances. I called the bank, acquired the paperwork, and set up the dedicated bank account. I needed his signature to complete the process, but I couldn't reach him. I left messages indicating my decision. Time ran out before my sceduled trip and I had to leave town for three weeks. The bank contacted him directly to attempt getting the signature while I was gone.

When I returned, I had nasty e-mails from him dictating that his vendors had to be paid immediately before he would sign the paperwork (because of his mismanagement, the final payment for the lumber package, and the payment for the window package was outstanding). He basically indicated that the contingency draw request that I submitted to the bank needed to be put into his account, then we could talk. Of course, I chose not to do this and began seeking legal advice and talking to the bank about what to do. Later, I received a certified letter from him threatening liens and him filing a lawsuit against me, I paid a lawyer to respond with my decision to not follow his lead. He is still demanding that we pay his vendors, no liens have been filed.

The bank's position is that, since he won't sign the paper approving the funds going in to my account, they must have a lien release from him before I can continue on my own without him. He is refusing. On December 4th the project will hit the twelve month mark and I will be charged a $1000.00 penalty for exceeding the 12 months allowed, and another $2000 every three months afterwards. Work has not been done on my house since June. The roof is finished, and the exterior has been sheathed but not stucco'd... it is exposed to the elements. As of last month, he had not paid his vendors... I assume since it has been more than 4 months since the material was installed they have waived rights to file lien on my property and are instead pursuing him. I also assume that until he pays the accounts, and 4 months pass... my house is still subject to lien by him.

The bottom line is that he is essentially holding us hostage, but I am hesitant to immediately file a law suit for the following reasons only:

- I need more time to prepare and secure counsel.

- There is a binding arbitration clause in the contract, and even though he has threatened to file a law suit in the courts, he has not done so to date. I welcome litigation as I am very confident in the evidence that I have collected so far. I am concerned however that if I file, he may negate it somehow with the arbitration clause and I will have wasted more money. I am hesitant to pursue the arbitration because it seems overcomplicated and considerably expensive even though it is billed as the more simple and less expensive approach.

- He is working under his Architecture L.L.C. He is a one man operation, but signed the contract as manager of the L.L.C. My guess is that if I won judgment against his L.L.C., there are no assets in it and he would file bankruptcy. My hope is that because of the fraudulent behavior, I can find a way to legally pursue him personally and win judgment against him instead of his company.


My immediate goals:

- The lawyer I hired to send the letter and begin negotiations hinted that I might look for a more specialized attorney, so I need to find that someone soon.

- I need to find a remedy to the banks needs quickly so I can resume work on the house and complete it as soon as possible. The bank has agreed to allow me to contract the remainder of the home without hiring another general contractor. As I mentioned, however, they are requiring that my current contractor sign a lien waiver.

- I want to pursue the damages I listed above in order to negate the money owed to his vendors. Secondary to this, I want to pursue the damages I listed above in hopes of actually collecting the damages beyond the amount owed to his vendors.


Some thoughts I had concerning my goals:

- I read about "bonding" a lien. If I understand this correctly, the money is put up to release the lien's hold, but isn't immediately paid to the person filing the lien (until they win the award in the courts?). If this is true, perhaps I can negotiate a deal with the bank where I put the outstanding vendor balances in an escrow account to secure this bond in the event one is filed. In exchange, they allow me to continue on the home.

- Maybe there exists some way I can get this "situation" into the court without a full blown law suit, and ask that I be given the freedom to complete the home in order to assess final damages. (Which is true, I don't know what other problems there might be due to either he (or his subs) negligence and or the house being exposed to the elements for so long unfinished.



There are other details not provided here, but this post is already long. I will follow up with a post of actual damages I wish to claim. If you made it this far... I sincerely appreciate the time you have spent reading it and welcome any advice or information you are able to provide.

Thank You.
 
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ggrashof

Junior Member
Hostage of Contractor

Sir:

I had a similiar problem this year on the gut rehab a smaller lake home in Missouri: huge cost overruns, nervous bank, total communication breakdown with the large contractor, threats of liens and near exhaustion over the entire matter. My advice:

1. In a simple letter to the contractor, offer him a small sum of cash to immediately sign the account release form the bank wants AND a full lien waiver - - agree not to pursue any legal claims against him. Give him two days to accept this offer. Just a simple 3-4 sentence letter offering say $150. Include a sentence that you want to maintain a positive relationship in the future with the contractor (even though you hate his guts). This works.

2. Some states allow a lien bond to facilitate the transfer of a property encumbered. Read the OK statute. Avoid all of this, if possible.

3. If the contractor files a lien, you can then ask the court to accelerate the period the contractor must file suit to 30 days from 6-12 months, whatever amount of time OK requires the lien filer to make the action claim. After the acceleration request is granted, file a fraudulent lien claim suit against the contractor.

4. Try to get the bank to make contact with the contractor. This gives you some leverage and makes you look BIG to the contractor. Also ask the bank if you can use the bank's law firm for some guidance - free to you.

5. Never, ever give up and try not to get emotional. You'll get all of your money back on the house in the long run.
 
T

TKT2RDE

Guest
Thank You GGRASHOF! I sincerely appreciate you taking the time to share.

I actually had a lawyer send him a simple offer like you suggested. Only in my desperation to reconcile this as soon as possible, I offered him $500.00 and gave him 5 days to respond. That was 20 days ago.

What I did not include in the letter was a list of damages that I should be able to claim as leverage. Like you, I was hoping that being nice would do the trick.

A summary of the actual damages that I feel are valid claims:

- He wrote check #1043 to himself for $2,000.00 a final payment not due at the time he wrote it and still not due at this time (it was outlined in the project that he was due this payment after a certificate of occupancy was issued to us) ... I consider this a fraudulent appropriation of funds, or embezzlement.

- The balance of the amount of money that he has drawn into his account to date, versus the amount paid out for our project, is equal to a positive $1,624.18. Although I cannot determine at this time what has become of this money, until proven otherwise, I also consider this to be fraudulently held money.

- The following items must be repaired and others are likely to emerge, the actual cost of which cannot be determined until the house is complete. These repairs are a result of work performed by his contractors for whom he is responsible (the first three items alone should be considered major repair items that will most likely exceed $7,000):

Terrible Sagging in West Kitchen Wall
Terrible Hump in North Kitchen Wall
Holes in “finished” concrete floor throughout the home
Incomplete framing of main entry and bonus room
Fascia offset near backdoor
Incomplete flashing under dormer

- He (the contractor) misrepresented himself as being a contractor capable of managing our building project and proper appropriation of our building funds. This is easily proven through:

A fully written documentation history of problems during the project
Consistent budget over-runs, some in excess of 20% of his budgeted amount

The embezzlement of funds mentioned earlier

Bounced checks written by him totaling $25,445.44

Lack of communication proven via phone records

His actual admittance of his shortcomings proven via extensive email records

- Not counting the $2000.00 funds he misappropriated to himself, we have paid him $11,500.00 that we based on his misrepresented ability to complete our home

- He verbally indicated that our house would be complete in 7 months or less. Other contractors agree that this amount of time is more than adequate. Our home is less than 50% complete at the currently approaching 12 month period. It reached this 50% mark at the 6 month period.

- Given that he has been paid 85% of the monetary agreement for a job that is less than 50% complete, he has been overpaid by at least 35%, or $4,725.00.

- As a result of his negligence, we are incurring monthly costs associated with our house not being completed... To date, these amounts have exceeded $1,700.00 and continue to grow (These amounts include but are not limited to: storage rental fees and bank loan interest).

- As a result of his negligence, we have already incurred $1,500.00 in legal fees which could continue to grow.

- As a result of his negligence, we will be assessed a $1000.00 penalty for not completing the home within the 12 months allowed by the bank and at this point, we will most likely not finish soon enough to avoid the first $2000.00 penalty assessed at 15 months. ($3000.00 total)

- There was a check for over $1600.00 written to a vendor called "Ugly John's" that he memo'd as 'Plumbing Rough'. The only contractor that can be verified to date on the plumbing portion of my project is not called "Ugly John's" and all of their required payments are accounted for. Furthermore, nobody has heard of Ugly John's plumbing and there is no listing in Oklahoma. There is, however, two locations in this area for a popular boat sales and repair facility called Ugly John's. One is located on Grand Lake, a lake where he told me that he frequents often to use the boat that he and his father share.

- I have spent many of my "working hours" dealing with the problem that he has created, missing opportunities and causing undue stress on my professional livelihood.

- My wife and I are suffering traumatic stress in the form of depression and sleep deprivation, both of which affect our overall health... my wife's health is my first concern as she is currently pregnant with our (hopefully) first child (it is a high risk pregnancy as we have experienced three miscarriages in our previous three attempts).

- The minimum of the above assessment of possible damages, not including unforeseen damages uncovered by completing the home, punitive damages and future court costs, easily exceeds $23,000.00. I agree that there is approximately $6,000.00 of debt in his name attributed to our property (the windows and lumber balance mentioned earlier), I do not contest any principal balances owed to vendors on our behalf, however I am not responsible for the interest. Subtracting the money owed to his vendors, the damages still exceed $17,000.00

Perhaps some ideas might arise after seeing the above list?
 

ggrashof

Junior Member
Construction Hostage

Sir:

I sense your frustrations. All of your claims are probably true but your chances of collecting anything are very slim. Limit your losses.

My opinion for your situation would be to hire a new, large, reputable general contractor to complete the job. Finish your home and move on. Consider the dollars frittered away to be a valuable learning experience.
 

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