obligation to 30 day notice in contract

[timlarso]

What is the name of your state? North Dakota

On the first of the month, my family's day care provider submitted a 30 day written notice to us stating that she will no longer care for our son. This was after I had submitted payment for the first half of the month. Two days later, after a discussion between the provider and my wife, the provider verbally stated that we should not bring our son back to the day care, effectively refusing to provide service for the remainder of the month. Soon afterwards, I stopped payment on the check given to the provider on the first of the month, but plan to send a check for the service provided for the one day that my son did go to the day care during the month. Now, she has stated that she is going to take us to small claims court.

We did sign a contract including the following statement:

"Termination of contract: This contract may be terminated by parent or provider with 1 months written notice provided by the other. Payment is due during first months notice period, even if the child/ren isn't/aren't in (name of provider) Family Day Care."

Also included in the contract: "There will be a $5 late fee for every day that you are late. You will be responsible for all court costs to be collected for any of your unpaid bill with (name of provider) Family Day Care."

We have received E-Mails from the provider, in which she states that she refuses to provide services because she felt we were trying to get out of the contract. Thus we have in writing the fact that she would not accept my son in her daycare any longer before the 30 day notice had expired.

Does the provider have a case, given her unwillingness to provide service for the remainder of the month? If she does take us to court, is there any chance of a countersuit for days lost at work by my wife and myself while searching for a new provider?

Any reply will be greatly appreciated.

 

[absconder]

Someone else will be along who knows more about this later. How can the daycare provider charge you for a full month and not provide a service to you. She did say dont come back here. Whatever days I mean that she didnt provide her services. Dont sound right.

 

[JETX]

Two days later, after a discussion between the provider and my wife, the provider verbally stated that we should not bring our son back to the day care, effectively refusing to provide service for the remainder of the month.

And there is your first mistake.... and maybe your save!!
You have a WRITTEN agreement specifying the process of termination. Absent any other agreement (verbal or written), both parties would have been held to that committment.
However, you can claim that the verbal agreement is a modification of the written agreement.... and if you can PROVE it was made and accepted, you might be able to convince a court (if needed) of that fact. The problem you will likely have is that the day care will have a different version of the facts than you.

Soon afterwards, I stopped payment on the check given to the provider on the first of the month, but plan to send a check for the service provided for the one day that my son did go to the day care during the month.

Second mistake. Likely that the court will NOT look favorably on your stopping payment. I suggest you IMMEDIATELY write a very nice letter to the day care detailing the specifics as you have here.... including the verbal modification of the agreement, an explanation for the 'stop pay'. Close with something like "The enclosed check is payment in full" and include a check marked 'PAYMENT IN FULL' for the day(s) that you actually used their services. Keep a copy. Send by Certified RRR.

Does the provider have a case, given her unwillingness to provide service for the remainder of the month?

See above.

If she does take us to court, is there any chance of a countersuit for days lost at work by my wife and myself while searching for a new provider?

No.

 

[timlarso]

Reply to JETX

JETX

I am grateful for your feedback concerning my contract issues. However, I have questions regarding your reply.

Does the 'first mistake' refer to the conversation between my wife and the provider?

First, perhaps I should clarify how all this transpired. On the 1st of the month, which was a Friday, I was at the providers house picking up my son. After giving the provider a check for payment for half of the month, she gave me an envelope and said that another child in the day care was having a birthday party next week. It was often her practice to send home notes updating us of upcoming events and/or if we need to bring more supplies (diapers, ect.), so when she gave me the note I though nothing of it and brought my son home. Soon afterwards, my wife came home and opened the envelope. It was then that we discovered that she had given us a 30 day notice, but with no reason stated in the letter. So when my wife called to find out why, their was no answer. The provider did not call back until 2 days later, and this is when the "discussion" took place.

Second,considering at the time we were under the impression that the provider would follow through with providing service for the remainder of the month, and we were planning on using the service until we found another provider, why would this be a mistake?

To update, thanks to an E-Mail, we now have in writing the providers refusal to take our son before the 30 days expired. Her reasoning is that she "knew" that we were going to "try get out" of the contract. Again, she had received payment for the first half of the month, and I did not stop payment on the check until after she stated we would not take our son any longer. My bank's stop payment policy states that once the check has cleared my bank, I can no longer request stop payment.

In addition, per conversation with my tax man, who is an attorney, he felt that the provider did not have a case, and, if anything, we could possible sue for damages.

 

[JETX]

Does the 'first mistake' refer to the conversation between my wife and the provider?

No. The 'first mistake' is in not complying with the termination conditions as noted in the contract.... and getting it in WRITING!!

First, perhaps I should clarify how all this transpired.

Actually, the 'how' doesn't matter. The WRITTEN contract that you agreed to by signing details what process is REQUIRED to terminate. That is ALL that a court will consider.

It was then that we discovered that she had given us a 30 day notice, but with no reason stated in the letter. So when my wife called to find out why, their was no answer. The provider did not call back until 2 days later, and this is when the "discussion" took place.

Not relevant. There is NOTHING in your contract requiring them to give you a reason for the termination, is there??

Second, considering at the time we were under the impression that the provider would follow through with providing service for the remainder of the month, and we were planning on using the service until we found another provider, why would this be a mistake?

That isn't a mistake. In fact, from your post, that would be reasonable since the daycare provider did in fact provide you with the notice to terminate.... as required by the contract.
The 'mistake' was in your reacting by immediately withdrawing... and stopping payment.

In addition, per conversation with my tax man, who is an attorney, he felt that the provider did not have a case, and, if anything, we could possible sue for damages.

I can see why your 'tax man' is not in active legal practice. Based solely on your post, YOU breached the contract. And you have NO claim for damages that occurred due to YOUR breach!! Hope he does taxes better than law.