How to make partial payment if plantiff is unwilling to accept?

[wantonsoup]

What is the name of your state (only U.S. law)? Colorado

Contractor did work. Terrible work, did damage, etc. So I tried for months to get him back out to fix the problems but he never came back. I told him that if he didn't come back within 15 days I would hire someone else and deduct that amount from his payment. He basically told me to take a hike and see you in court.

Anyway, I've paid the 2nd company and want to make a payment to the original contractor. But he says if I send a penny less than the original total he will just return the money.

Ideas? I really want to pay him to get this over with. I am an honest guy, I want to move on with my life but this jerk is really pushing it and has filed a lien for the original amount on me.

Any good way to get him this partial payment right now? It's not like he's giving up his right to sue me by accepting it. I just don't want to end up in court and have a judge think I'm trying to get something for nothing, you know?

 

[racer72]

The contractor does not have to accept anything less than the full agreed upon price. It is not up to you to determine the value of the discrepant workmanship, only a judge can do that. Your best option is to pay the full amount due then sue the contractor yourself for the shoddy work.

 

[wantonsoup]

Thank you for replying - I am well aware of everything you've said. But that's not my question. I'm asking for a method I could pay him this partial payment.

If you hired someone to paint your house red with stripes and they painted it blue with polka dots, I doubt you'd pay the full amount and just rely on the courts to make it right. You'd withhold payment until they fixed it, as I've done, and if they refused you'd hire another company to paint your house red, and pay the original painter the difference. That's all I'm trying to do.

 

[quincy]

Thank you for replying - I am well aware of everything you've said. But that's not my question. I'm asking for a method I could pay him this partial payment.

If you hired someone to paint your house red with stripes and they painted it blue with polka dots, I doubt you'd pay the full amount and just rely on the courts to make it right. You'd withhold payment until they fixed it, as I've done, and if they refused you'd hire another company to paint your house red, and pay the original painter the difference. That's all I'm trying to do.

What complicates your partial-payment plan is the fact that your original contractor has a lien for the original amount of the contract. This amount could be argued as excessive, but a court will be the place to argue it.

Good luck.

 

[swalsh411]

You're not listening. He doesn't have to accept partial payment. He can sue you for the full amount. Whether or not he would win, who knows, but he doesn't have to accept your partial payment.

Now, if you were to send partial payment and he refused, you could use that against him to show you attempted to resolve the matter in good faith. (as long as your offered payment is defensible give the circumstances)

If you hired someone to paint your house red with stripes and they painted it blue with polka dots, I doubt you'd pay the full amount and just rely on the courts to make it right. You'd withhold payment until they fixed it, as I've done, and if they refused you'd hire another company to paint your house red, and pay the original painter the difference. That's all I'm trying to do.

Good luck with that strategy when you get sued.

 

[latigo]

What is the name of your state (only U.S. law)? Colorado

Contractor did work. Terrible work, did damage, etc. So I tried for months to get him back out to fix the problems but he never came back. I told him that if he didn't come back within 15 days I would hire someone else and deduct that amount from his payment. He basically told me to take a hike and see you in court.

Anyway, I've paid the 2nd company and want to make a payment to the original contractor. But he says if I send a penny less than the original total he will just return the money.

Ideas? I really want to pay him to get this over with. I am an honest guy, I want to move on with my life but this jerk is really pushing it and has filed a lien for the original amount on me.

Any good way to get him this partial payment right now? It's not like he's giving up his right to sue me by accepting it. I just don't want to end up in court and have a judge think I'm trying to get something for nothing, you know?

Do this:

Tender a written offer to the contractor to pay his contract price LESS your costs incurred in engaging the "2nd company". But be prepared to prove that the work done by the second contractor was reasonably necessary in order to fulfill the terms of the original agreement. And that the costs for labor and material are within reasonable ranges in your community

In no circumstances would I recommend to a client in your situation to pay the lien holder the full amount claimed and then take the chance of ever getting reimbursed for the extra outlay.

Because of the recalcitrance of the first guy it appears that you are going to end up in court anyway. So why give into him unless the court finds in his favor.

Most importantly consult with your attorney!!!!!!!!!!!!

Good luck.

 

[quincy]

I agree with latigo that you should consult with an attorney, this prior to presenting any agreement to the original contractor with an offer of partial payment.

Any agreement you make with the original contractor must be drafted carefully and must address the lien. An attorney will ensure the agreement includes an unconditional waiver and release of the lien, to protect you from additional claims the contractor may think to make.

 

[wantonsoup]

Thank you latigo for some cogent advice. Much appreciated.

I am honestly not concerned about the lien, it expires and I'm not selling the house or refinancing anytime soon.

 

[quincy]

Thank you latigo for some cogent advice. Much appreciated.

I am honestly not concerned about the lien, it expires and I'm not selling the house or refinancing anytime soon.

Note well latigo's advice to, "Most importantly consult with your attorney!!!!!!!!!!!!" You need one if you think you should not be concerned with the lien.

Good luck.