Debt collection-Small business-(LONG)

[arwav]

I am a window treatment designer and fabricator in Indiana. I was hired to fabricate a job for a designer. The job was done in three parts. the first part was completed and paid for. With high praise. The second and third parts were completed and delivered to the installer. The designer was to bring payment within two days. Installer called the evening of the installation, to commend me on my workmanship. Mind you, this installer does VERY high end work, so this is a great compliment. He said that he and the designer had "words" at the installation, and that he was to reuturn to the job site for some "alterations to the installation". I called the designer immediately. Had to leave messages. She called 5 days later after I called to request payment. She said she was bringing it that day. The next day I rcvd a fax. She was ripping me from one end to the next, saying my workmanship was inferior etc... I called her to see what exactly the problem was. I told her that whatever was wrong, I would be more than happy to fix. She will not call me back & refused a certified letter. I have repeatedly attempted to collect the balance due of nearly $1300.00. I am at my wits end, what can I do now? BTW its been 38 days since shetook delivery of the order.
thanks for listening
connie

 

[I AM ALWAYS LIABLE]

I am a window treatment designer and fabricator in Indiana. I was hired to fabricate a job for a designer. The job was done in three parts. the first part was completed and paid for. With high praise. The second and third parts were completed and delivered to the installer. The designer was to bring payment within two days. Installer called the evening of the installation, to commend me on my workmanship. Mind you, this installer does VERY high end work, so this is a great compliment. He said that he and the designer had "words" at the installation, and that he was to reuturn to the job site for some "alterations to the installation". I called the designer immediately. Had to leave messages. She called 5 days later after I called to request payment. She said she was bringing it that day. The next day I rcvd a fax. She was ripping me from one end to the next, saying my workmanship was inferior etc... I called her to see what exactly the problem was. I told her that whatever was wrong, I would be more than happy to fix. She will not call me back & refused a certified letter. I have repeatedly attempted to collect the balance due of nearly $1300.00. I am at my wits end, what can I do now? BTW its been 38 days since shetook delivery of the order.
thanks for listening
connie

My response:

Where's your written contract ?

IAAL

 

[arwav]

I have a signed acceptance of the bid. I also have saved the phone message that she left saying she was bringing the payment. I also have copies of all the faxes and letters I sent, along with the fax transmittal record. anything else?
connie

ps..she was given a "terms of business" letter when we first started working together. This is not the first job i have done for her.

 

[I AM ALWAYS LIABLE]

I have a signed acceptance of the bid. I also have saved the phone message that she left saying she was bringing the payment. I also have copies of all the faxes and letters I sent, along with the fax transmittal record. anything else?
connie

ps..she was given a "terms of business" letter when we first started working together. This is not the first job i have done for her.

My response:

Okay, I'll be coming to a "crescendo" with my final response to you; however, now I need answers to these :

1. An "acceptance of the bid" may or may not be viewed as a contract for a specific quality, quantity or workmanship. Are there any terms or conditions (as far as your work is concerned) in the "Acceptance" E.g., size, style, type of materials, etc. ?

2. Does the phone message specifically mention this project, or is it merely a generic message, e.g., "I'll be bringing the money over tonight". Is there some nexus between THIS project and the message ?

3. Did she ever acknowledge the faxes ? If so, what did she say, and at what point did she say it ?

4. In a nutshell, what were some of the points of her contentions concerning your workmanship ?

The "terms of business" letter is not a contract - - so, more than likely, that will be useless in for my eventual conclusion.

IAAL

[Edited by I AM ALWAYS LIABLE on 05-12-2001 at 06:30 PM]

 

[arwav]

Thanks for the quick response!
Ok...Her phone message did not specificlly reference this job. However, it is the only job I have with her right now, and the date and time are posted.

In her letter of complaint there are no specific complaints of the workmanship.

I understand that the "terms of sale" is not a contract. I merely mentioned it so that you would be aware, that she is aware of my payment policy. Balance due in full upon delivery.

Her letter of complaint concedes that she knew there was an obligation to pay for the product.

The "acceptance of bid" has product decription, style, fabric etc...

Is there anything else?

By the way, is there any way that i can put a lien on the customer? (not the designer) since they are the final recipient of the finished product?

What can I do when she has pictures published in magazines, as she has repeatedly said she is doing.

connie

ps..sorry about the long windedness..(not a word! sorry!)

 

[arwav]

BTW, She is a one woman business as am I. We both work out of our homes. she claims to be INC...i doubt it. How can I check licenses etc...should i call BBB?

connie

 

[I AM ALWAYS LIABLE]

My response:

I thought, at first, you might have a problem with the Indiana "Statute of Frauds", and thereby, not be able to collect. As a business person, you should be aware that the Statute of Frauds may be a defense to some kinds of contracts. The Statute of Frauds requires certain kinds of contracts to be in writing, and provides that a contract of that type, that is not in writing, is not enforceable.

However, the Statute of Frauds may not be a defense to an unwritten contract if one of the parties has relied on the contract to his detriment.

The Uniform Commercial Code (UCC) provides businesses with an alternative to a written contract for the sale of goods. Under the UCC an enforceable contract is created if:

1. one merchant sends another merchant a written confirmation of an oral contract,

2. the confirmation is sent within a reasonable time after the contract was made, and

3. the recipient does not object to the confirming memorandum within 10 days of its receipt.

A merchant is defined as any person who normally deals in goods of the kind sold, or who, because of occupation, represents himself or herself as having knowledge or skill peculiar to the practices or goods involved in the transaction. Most businesspeople are considered merchants.

It should be emphasized that the sole effect of the confirming memorandum is that neither party can use the Statute of Frauds as a defense. The party sending the confirming memorandum must still prove that an oral contract was made before or at the same time as the written confirmation. However, once such proof is offered, neither party can raise the Statute of Frauds to avoid enforcement of the agreement.

So, with all of your evidence, and since you relied upon her prior dealings, and the phone message, to your detriment, I now believe that you have a better than even shot at winning in Small Claims court.

Go get her ! !

Best of fortune to you.

IAAL

P.S. Next time, write up a contract, will you ?

 

[arwav]

Dear IAAL,
Thanks for taking the time to read my posts and respond. Is it not a binding contract if I issue an estimate, with the following information printed on the bottom:

Acceptance of Proposal (sign)______________date_________

Once this is recieved I then issue an invoice for the amount due, with the note in "terms" "Balance due upon delivery"

Can you tell me where to get a copy of a sample contract?
I have been in business 10 years, and knock on wood, this is my first non paying customer!

thanks again, and happy mothers day!LOL
connie

 

[I AM ALWAYS LIABLE]

Dear IAAL,
Thanks for taking the time to read my posts and respond. Is it not a binding contract if I issue an estimate, with the following information printed on the bottom:

Acceptance of Proposal (sign)______________date_________

Once this is recieved I then issue an invoice for the amount due, with the note in "terms" "Balance due upon delivery"

Can you tell me where to get a copy of a sample contract?
I have been in business 10 years, and knock on wood, this is my first non paying customer!

thanks again, and happy mothers day!LOL
connie

My response:

Happy Mother's Day, to me ? Okay, I guess I'll grow a couple of breasts. Now, where did I put those hormone pills ?

Anywho, and just going by what you've written, no that's not a contract. There are no terms, conditions, delivery schedules, and a whole host of items that are missing. It's just that, a proposal. Other than perhaps pricing, there could be discrepancies as to a "meeting of the minds" unless all terms and conditions are spelled out.

A search of the Internet, using your search engine, could get you a million hits for various types of merchant and manufacturing contracts. Half the fun of the Internet is finding these little tidbits on your own. Sure, I could point you to a site or two, but only you know the specifics of what you're doing, and which contracts would be best suited for you and your situtation.

So, happy hunting, and best of luck.

Let me know how this turns out, after you've filed your Small Claims action against her.

IAAL

 

[JETX]

My $0.02 worth....

One of the questions asked was "she claims to be INC...i doubt it. How can I check licenses etc...should i call BBB?"

You can certainly call the BBB, but they can only tell you whether they have a 'file', whether there have been any complaints and whether she responds to them. Information, but of no legal value.

I suggest you contact your local business registration folks (the same people you contacted when you registered your d/b/a business name). They should have a record of her 'real' business name. If it is something like "Jane Doe d/b/a Jane's Design", she is very probably NOT incorporated (also, most licenses have a place for noting the type of business.. corporation, sole proprietorship, etc.). However, if it says something like "Jane Inc." or "Jane Inc. d/b/a Jane's Design", then the business IS incorporated. If it is incorporated and you do decide to take legal action, you will need to contact your state Corporations Records (Secretary of State) and find out the name of the Registered Agent for Service. It is CRITICAL that you suit be in the name of this AGENT (such as: "Jane Doe, Registered Agent for Jane's Inc."). Also, if you decide to go to Small Claims court, do a search on the 'net using your state and "Small Claims" to get how-to information, and go to your local library and see if they have any books on your states Small Claims system. These information sources will be good knowledge, even if you decide NOT to take any action.
(Sorry, looks like I gave you a full $0.05 worth!!)