Failure to perform work based on oral contract/Return of deposit

[modegirl79]

We are located in NJ.

First off, I apologize if this is long and thank you in advance for taking the time to read and provide your advice:

My husband & I recently worked with a licensed & reputable home improvement company, "Company A," for the second time in a few years. This time, the owner of that company was overloaded with work and sent several young men who did the lion's share of our recent remodeling project. I assume these young men work for him on a contract/as-needed basis. One of the men, "Alex," was sort of the leader of the team, and we decided to offer Alex some extra work on another smaller project. We were happy with the work that was done, and thought he seemed like a nice enough guy. I had a very nice conversation with Alex one Saturday afternoon, and it really seemed like he was looking to better himself and support his young family. We have some little projects we're working on these next few months to prepare our house for sale, so I thought it'd be the perfect opportunity to throw a little more work his way. I must admit Alex himself has no insurance, so we've now learned our lesson that it's definitely not a good idea to work with someone who is uninsured.

Alex visited our home on two occasions specifically regarding our smaller project. The first time was to take a look at the work that needed to be done and provide an estimate. My husband requested the estimate be sent to his email address, but Alex provided this information via text message. After reaching a verbal agreement, Alex stopped by a few days later to pick up a deposit. He said he needed the deposit to purchase some supplies for the project and to secure a few team members to work with him. We agreed - however, we insisted that we write him a check and not provide cash. Alex obliged, but requested that the check be made out to his girlfriend/fiancé with whom he lives. We honestly thought nothing of this - I personally handle the finances in our household, so we assumed that she did the same for theirs. I wrote out the check in her name, but I also wrote the purpose of the check and included Alex's name. Alex said he would be by that following Saturday to complete the project. Alex sent a text to my husband early Saturday morning to state that he came down with a severe stomach bug and would need to reschedule the work. Once again, I was in Alex's corner. Alex had mentioned his son was sick, so I thought it seemed plausible that Alex caught something from his son. Well, that was the last we heard from Alex...

Our check was subsequently cashed a few days AFTER Alex said he needed to reschedule. Admittedly, we still had a little time to place a stop payment on the check. Well, I suppose we had a little too much faith in Alex. The day after the check was cashed, my husband called and texted Alex to ask if he was feeling better and to contact him to reschedule the work. A few days later, I did the same - since he did not know my number, I was hoping he'd answer. The following day my husband left a message and sent a text to say that if we do not hear from Alex within the next three days, we will be contacting our attorney. We do not plan on contacting Alex again, but we definitely do plan to pursue this matter further. However, we do not want to pursue this matter until we move out of state, which will be around April/May 2018. I believe we would still be within the statute of limitations.

Our primary reason for wanting to wait is the fact that WE DO NOT TRUST ALEX! Alex is obviously a completely different person from how we perceived him to be. He's a phenomenal actor and deserves an Academy Award. If he sees that legal action is being taken against him, it would be very easy for him to come to our house and do something very, very foolish. We cannot have that happen.

Interesting point to note about this check that was cashed which complicates this further: There was a second endorser on the check, who appears to be Alex's mother. We believe she may hold a joint account with Alex and his girl. That being said, we would need to file a claim against not only Alex, but also his girlfriend and mother. We have been able to find multiple addresses and even additional phone numbers associated with all three of them, so we know our small claims summons WOULD BE delivered somewhere. Ah, the power of the Internet! Whether they choose to answer their summons, that's on them. We do not expect our money to ever be returned, but we would like to "ding" their credit reports, at the very least. Out of sheer principal, we may, in fact, work with a collection agency to try to get them to pay up - for us, it's not about the money, it really is the principle of it. All three of them need to learn a little about a little thing called accountability. We will definitely be keeping tabs on the addresses associated with them over the course of the next six months or so. We will NOT be losing sight of this issue, not in a million years!

Here's my question - if we file the claim once we're far, far away from Alex, what happens? Would we be expected to return to NJ for a small claims matter once it reaches court? Or would we be able to handle stating our case remotely? Do we tell the court that we feared retaliation on Alex's behalf, which is why we did not file sooner? I recently attended jury duty for a personal injury trial, and the judge mentioned that the defendant would not be present because he attends college out of state. Granted, that was a much more significant matter with an attorney representing him. Returning to NJ to get our revenge is no big thing for us, as we could tie it into a trip to visit family. Since we've got that check, we've got time-stamped pictures to prove the work was never performed, we have phone records/text messages, we know we've got a case. I'm not a lawyer, but it seems to me that Alex & co. have nothing for a defense.

Any and all advice will be hugely appreciated, thank you!

 

[Zigner]

Why would you sue the girlfriend OR the mother? You had no contract with them.

Why do you all of a sudden seem too scared for Alex to do the work? You've admittedly had Alex in your home SEVERAL times and had no problem.

How do you know that Alex isn't somehow incapacitated?

 

[modegirl79]

Zinger -

Why would you sue the girlfriend OR the mother? You had no contract with them.
- Correct, we did not have a contract with them. We had an oral contract with Alex. Alex instructed us to write the check in his girlfriend's name. That check also had Alex's name and the name of the project that Alex agreed to do. His girlfriend, along with the mother, both signed the check. I'm not sure why the mother signed the check since it was not written to her. We'd never met the girlfriend or the mother. Alex requested that we write the check to his girlfriend, we obliged. I would think they are involved in this scheme since their names are on the check. We would sue Alex for breach of oral contract and we would sue them for return of deposit. The girlfriend and mother are the ones who officially took our money.

Why do you all of a sudden seem too scared for Alex to do the work? You've admittedly had Alex in your home SEVERAL times and had no problem.
The fact that our repeated attempts to contact Alex by phone and text messaging have been ignored has sent up a huge red flag. We believe he took our money and ran...well, he tried to run.

How do you know that Alex isn't somehow incapacitated?
Sure, it's possible he is. He's a 20-something who appeared to be in excellent shape when we've spoken with him. We would be shocked if he is incapacitated. I believe unless someone is on their deathbed, there is no reason why you would completely ignore your cell phone. Everyone is so tied to their phones these days. I personally had a major surgery a year ago that required a 5-inch abdominal incision. My surgery lasted 2.5 hours, I lost a lot of blood thereby requiring a transfusion, my blood pressure was super low. I got to my room about 2 hours later and shortly thereafter was on the phone with a coworker. By waiting to file this small claim until we move out of state for my husband's job, we're giving Alex PLENTY of time to prove to us that he legitimately has a "major health issue."

 

[Zigner]

Zinger -

Why would you sue the girlfriend OR the mother? You had no contract with them.
- Correct, we did not have a contract with them. We had an oral contract with Alex. Alex instructed us to write the check in his girlfriend's name. That check also had Alex's name and the name of the project that Alex agreed to do. His girlfriend, along with the mother, both signed the check. I'm not sure why the mother signed the check since it was not written to her. We'd never met the girlfriend or the mother. Alex requested that we write the check to his girlfriend, we obliged. I would think they are involved in this scheme since their names are on the check. We would sue Alex for breach of oral contract and we would sue them for return of deposit. The girlfriend and mother are the ones who officially took our money.

Why do you all of a sudden seem too scared for Alex to do the work? You've admittedly had Alex in your home SEVERAL times and had no problem.
The fact that our repeated attempts to contact Alex by phone and text messaging have been ignored has sent up a huge red flag. We believe he took our money and ran...well, he tried to run.

How do you know that Alex isn't somehow incapacitated?
Sure, it's possible he is. He's a 20-something who appeared to be in excellent shape when we've spoken with him. We would be shocked if he is incapacitated. I believe unless someone is on their deathbed, there is no reason why you would completely ignore your cell phone. Everyone is so tied to their phones these days. I personally had a major surgery a year ago that required a 5-inch abdominal incision. My surgery lasted 2.5 hours, I lost a lot of blood thereby requiring a transfusion, my blood pressure was super low. I got to my room about 2 hours later and shortly thereafter was on the phone with a coworker. By waiting to file this small claim until we move out of state for my husband's job, we're giving Alex PLENTY of time to prove to us that he legitimately has a "major health issue."

What if he's dead?

 

[modegirl79]

What if he's dead?

Great question. Not to sound morbid, but don't worry - we'll be keeping an eye out in the obituaries for his name.

Like I said, he's got plenty of time to make himself known to us again. We are pretty sure he's alive and well, yet another criminal in the world. We don't expect to hear from him. He might be in his 20s, but he's still a child. He probably thought we'd just drop this whole thing. Nope, sorry, we won't. As long as it seems like he's alive at the point when we intend to sue several months from now, we'll be doing just that. That check is our paper trail, the key piece of evidence in this whole thing. If it turns out he's dead, oh well, we're suing a dead guy. Our bad.

 

[Zigner]

Great question. Not to sound morbid, but don't worry - we'll be keeping an eye out in the obituaries for his name.

Like I said, he's got plenty of time to make himself known to us again. We are pretty sure he's alive and well, yet another criminal in the world. We don't expect to hear from him. He might be in his 20s, but he's still a child. He probably thought we'd just drop this whole thing. Nope, sorry, we won't. As long as it seems like he's alive at the point when we intend to sue several months from now, we'll be doing just that. That check is our paper trail, the key piece of evidence in this whole thing. If it turns out he's dead, oh well, we're suing a dead guy. Our bad.

Best of luck to you.

 

[modegirl79]

Best of luck to you.

Thanks, Zinger. And thank you for focusing on the "what if's?" playing a Devil's advocate. All valid questions you asked, and I do appreciate that. However, I do not feel as though you provided any information regarding my questions towards the end of my first post.

 

[Zigner]

Expect to return to the state to pursue your claim. Also, expect to have a difficult time (1) serving him, and (2) collecting (if you win).

 

[modegirl79]

Really not a problem for us to return. Like I said, we'll be back here anyway to visit family, so we can just coordinate with that. This is about proving a point and holding someone accountable for a wrongdoing. He thinks he's outsmarted us, and we'll let him think that for the moment. But we'll pop up out of the blue to get the last laugh. You violate the rules, you face the consequences. Simple as that. Regardless of what happens with our pursuit, karma will come back to bite him, indeed.

 

[Zigner]

Really not a problem for us to return. Like I said, we'll be back here anyway to visit family, so we can just coordinate with that. This is about proving a point and holding someone accountable for a wrongdoing. He thinks he's outsmarted us, and we'll let him think that for the moment. But we'll pop up out of the blue to get the last laugh. You violate the rules, you face the consequences. Simple as that. Regardless of what happens with our pursuit, karma will come back to bite him, indeed.

I suspect that you're not going to get the satisfaction that you expect.

 

[HRZ]

OP....your ethics to end run your licensed contractor to hire one of his employees on the side and pay for that work via a girlfriends name do not exactly give you clean hands or business smarts.

BTW is his main employer aware of his antics ?

I give you zero odds to prevail and collect later on from out of state.

 

[Gail in Georgia]

"Here's my question - if we file the claim once we're far, far away from Alex, what happens?'

If you have his correct address he should be served.

" Would we be expected to return to NJ for a small claims matter once it reaches court?"

Yes

" Or would we be able to handle stating our case remotely?"

No

" Do we tell the court that we feared retaliation on Alex's behalf, which is why we did not file sooner?"

Only if you want to appear stupid before the court.

" Returning to NJ to get our revenge is no big thing for us, as we could tie it into a trip to visit family. "

Knock off the revenge business and think logically about this. You state you don't care about the money but a civil case IS about money. You're not going into criminal court. If you don't care about these funds then don't continue with the case. Even IF you care about these funds please keep in mind that winning a judgment is no guarantee you'll ever see a penny of this money. The court may grant your judgment but it would still be up to you to collect these funds.

How much money are we talking about here?

Gail

 

[not2cleverRed]

We are located in NJ.

First off, I apologize if this is long and thank you in advance for taking the time to read and provide your advice:

My husband & I recently worked with a licensed & reputable home improvement company, "Company A," for the second time in a few years. This time, the owner of that company was overloaded with work and sent several young men who did the lion's share of our recent remodeling project. I assume these young men work for him on a contract/as-needed basis. One of the men, "Alex," was sort of the leader of the team, and we decided to offer Alex some extra work on another smaller project. We were happy with the work that was done, and thought he seemed like a nice enough guy. I had a very nice conversation with Alex one Saturday afternoon, and it really seemed like he was looking to better himself and support his young family. We have some little projects we're working on these next few months to prepare our house for sale, so I thought it'd be the perfect opportunity to throw a little more work his way. I must admit Alex himself has no insurance, so we've now learned our lesson that it's definitely not a good idea to work with someone who is uninsured.

Alex visited our home on two occasions specifically regarding our smaller project. The first time was to take a look at the work that needed to be done and provide an estimate. My husband requested the estimate be sent to his email address, but Alex provided this information via text message. After reaching a verbal agreement, Alex stopped by a few days later to pick up a deposit. He said he needed the deposit to purchase some supplies for the project and to secure a few team members to work with him. We agreed - however, we insisted that we write him a check and not provide cash. Alex obliged, but requested that the check be made out to his girlfriend/fiancé with whom he lives. We honestly thought nothing of this - I personally handle the finances in our household, so we assumed that she did the same for theirs. I wrote out the check in her name, but I also wrote the purpose of the check and included Alex's name. Alex said he would be by that following Saturday to complete the project. Alex sent a text to my husband early Saturday morning to state that he came down with a severe stomach bug and would need to reschedule the work. Once again, I was in Alex's corner. Alex had mentioned his son was sick, so I thought it seemed plausible that Alex caught something from his son. Well, that was the last we heard from Alex...

Our check was subsequently cashed a few days AFTER Alex said he needed to reschedule. Admittedly, we still had a little time to place a stop payment on the check. Well, I suppose we had a little too much faith in Alex. The day after the check was cashed, my husband called and texted Alex to ask if he was feeling better and to contact him to reschedule the work. A few days later, I did the same - since he did not know my number, I was hoping he'd answer. The following day my husband left a message and sent a text to say that if we do not hear from Alex within the next three days, we will be contacting our attorney. We do not plan on contacting Alex again, but we definitely do plan to pursue this matter further. However, we do not want to pursue this matter until we move out of state, which will be around April/May 2018. I believe we would still be within the statute of limitations.

Our primary reason for wanting to wait is the fact that WE DO NOT TRUST ALEX! Alex is obviously a completely different person from how we perceived him to be. He's a phenomenal actor and deserves an Academy Award. If he sees that legal action is being taken against him, it would be very easy for him to come to our house and do something very, very foolish. We cannot have that happen.

You had me until here.

The longer you delay, the weaker your case. And no, the court isn't going to take your schedule into account to make appearances super convenient.

You have said nothing heretofore to indicate that this "Alex" has a tendency towards being violent, or has a history of vindictive vandalism. While it may be "very easy" for him to do the things you imagine, perhaps you are the only one imagining them.

My *legal* advice: go to small claims now. If he retaliates, you then will have grounds for a restraining order. Otherwise, move on with your life.

If you wait, not only will your case be weaker, but you'll probably in the interim have similar dealings with other people, making it more difficult to prove it's Alex, if he retaliates.

And honestly? When you first commented about "insurance" I thought we were going to get a story about how "Alex" (or someone working for him) was injured on the little side job, or that his negligence resulted in damage to your property. Think about that.