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  1. #27
    Join Date
    Aug 2008
    Location
    Las Vegas NV
    Posts
    68
    Just remember…

    Your customer is a dirt bag. He has proven this by the way he conducts his business. He has probably screwed people in the past and will continue to screw them in the future. His credit is probably shot and maybe his house may be on the verge of foreclosure. Point being, he has nothing to lose. You have everything to lose. Not sure about the laws where you live, but where I am from the courts don’t look too fondly on businesses picking on the “little man”. Think twice before you steal “his” condenser.

  2. #28
    Join Date
    Mar 2005
    Location
    Houston, Texas
    Posts
    11,863
    I think this has happened to anyone that's in business. Sometimes it's easier to just suck it up and move on. You can't take a lien to the grocery store to buy vittles. If there's an up side to this, you're lucky it's only in the thousands, and not the tens of thousands. Good Luck with this, I've been in this boat before.

  3. #29
    Join Date
    Mar 2004
    Location
    SE Michigan
    Posts
    17,909
    If he wrote a check for partial payment, in many states this can be considered as an acceptance of the proposal/contract and is legally binding.
    " Kill a Commie for Mommy! "

    - Colonel David Hackworth (1930-2005), Korean War Vet

  4. #30
    Join Date
    Aug 2008
    Posts
    7

    Here is an attorney's perspective.

    You guys have helped me out on HVAC, so let me help you on law. First, a legal disclaimer. I am a Maryland attorney and confident of my opinions of Maryland law. Most states are similar, but you never know.

    1. Once something is attached to real property, it becomes what is referred to in law as a "fixture" and is the property of the owner, whether he has paid you for it or not. The definition of "fixture" has a long history in Maryland, and there have enven been cases in which they have decided that things that are attached with screws are not fixtures, since their mounting is temporary, and can be unscrewed, as opposed to things that are nailed down, being more permanent. Sooooo, your condenser unit is screwed in, not nailed in. See what I mean?

    2. This fixture thing is the main reason that states introduced the concept of "mechanic's liens" where in limited circumstances, you can get a lien against the real property of the owner, even if you were a subcontractor. Mechanics lien laws are available in every state. They usually require you to move quickly to action (120 days to write a notice letter in MD, then 180 days to file suit for lien).

    3. Each of you should have 4 provisions in your contracts:

    • An interest on unpaid balances provision
    • an attorney's fees provision in the event that you need to collect on the debt
    • a bad check provision stating penalties for bad checks
    • a provision stating that you retain ownership of the materials until payment is made in full


    4. Collection agencies - I don't like them. Go to an attorney for the same 1/3 fee. He or she wiould either file suit for payment, or for mechanic's lien, if possible.

    5. About the fact that the contract was not signed - THIS DOES NOT PROHIBIT RECOVERY! All it really does is knock out the side issues. But your providing service, and his requirement to pay will survive even though the contract was not signed.

    Any questions, I will be happy to answer at kurt.wolfgang@verizon.net

    Good luck.

  5. #31
    Join Date
    Nov 2004
    Location
    Naples, Fla.
    Posts
    1,403
    Thank you Mr. Kurt.

  6. #32
    Join Date
    Aug 2008
    Posts
    7

    Here is an attorney's perspective.

    You guys have helped me out on HVAC, so let me help you on law. First, a legal disclaimer. I am a Maryland attorney and confident of my opinions of Maryland law. Most states are similar, but you never know.

    1. Once something is attached to real property, it becomes what is referred to in law as a "fixture" and is the property of the owner, whether he has paid you for it or not. The definition of "fixture" has a long history in Maryland, and there have enven been cases in which they have decided that things that are attached with screws are not fixtures, since their mounting is temporary, and can be unscrewed, as opposed to things that are nailed down, being more permanent. Sooooo, your condenser unit is screwed in, not nailed in. See what I mean?

    2. This fixture thing is the main reason that states introduced the concept of "mechanic's liens" where in limited circumstances, you can get a lien against the real property of the owner, even if you were a subcontractor. Mechanics lien laws are available in every state. They usually require you to move quickly to action (120 days to write a notice letter in MD, then 180 days to file suit for lien).

    3. Each of you should have 4 provisions in your contracts:

    • An interest on unpaid balances provision
    • an attorney's fees provision in the event that you need to collect on the debt
    • a bad check provision stating penalties for bad checks
    • a provision stating that you retain ownership of the materials until payment is made in full


    4. Collection agencies - I don't like them. Go to an attorney for the same 1/3 fee. He or she wiould either file suit for payment, or for mechanic's lien, if possible.

    5. About the fact that the contract was not signed - THIS DOES NOT PROHIBIT RECOVERY! All it really does is knock out the side issues. But your providing service, and his requirement to pay will survive even though the contract was not signed.

    Any questions, I will be happy to answer at kurt.wolfgang@verizon.net

    Good luck.

  7. #33
    Join Date
    Aug 2008
    Posts
    7

    More from the attorney

    One more word of advice about those provisions for your contracts - interest, attorney fees, bad check, and maintaining a security interest in the inventory until it is paid for - your local attorney will probably review your contracts and add those provisions FOR FREE - if you give him your collection work to do. The goal is to set your contract up so that when he noeeds to collect for you, you still get paid most or all of your money, yet the attorney gets paid enough to keep him going, too. Win-win.

    Do it now before you have a problem. Once you have a jackass like this guy, it is too late to add things to your contract.

    kurt.wolfgang@verizon.net
    Last edited by 1airwolf; 08-24-2008 at 03:15 PM.

  8. #34
    Join Date
    Aug 2008
    Posts
    7

    More from the attorney

    One more word of advice about those provisions for your contracts - interest, attorney fees, bad check, and maintaining a security interest in the inventory until it is paid for - your local attorney will probably review your contracts and add those provisions FOR FREE - if you give him your collection work to do. The goal is to set your contract up so that when he noeeds to collect for you, you still get paid most or all of your money, yet the attorney gets paid enough to keep him going, too. Win-win.

    Do it now before you have a problem. Once you have a jackass like this guy, it is too late to add things to your contract.

    kurt.wolfgang@verizon.net

  9. #35
    We had a cx that would not pay about 2 months after we installed a new RTU. The boss went to the business at 5am and turned off the RTU at the disconnect. We waited for the no cooling call to come in. They sent me over for a service call. Repoed the blower unit from RTU. Told cx that blower motor has to be replaced and will be back when we get new motor.Took about a month cx paid and i reinstalled blower unit.

  10. #36
    Join Date
    May 2008
    Location
    North Texas
    Posts
    105
    Best advice is a local attorney.

    One of the precincts here has a judge who owned an electrical contractor firm. Best judge to go to for deadbeats.

    Generally best not to get the deadbeat mad. Then he rationalizes that he doesn't have to pay you because you made him mad.

    A lien here in Texas doesn't go away. It stays until the property is about to be sold. Then the title company won't issue insurance until the title gets cleared. Usually at that point someone steps in and pays the lien off.

    Cranking it up a notch, your attorney can file a bad credit report on the deadbeat.

    If you write it off as an uncollectible debt, you can report that as income to the deadbeat with the IRS. CAUTION: may result in extreme heat with deadbeat.

    We always get a check here. Once that check is written, if it doesn't cash it becomes a criminal offense. That's how our sheriff handles it.

  11. #37
    Join Date
    Mar 2005
    Location
    Houston, Texas
    Posts
    11,863
    Quote Originally Posted by sparksandfan View Post

    A lien here in Texas doesn't go away. It stays until the property is about to be sold. Then the title company won't issue insurance until the title gets cleared. Usually at that point someone steps in and pays the lien off.
    That's not exactly correct. Unless things have changed since the last time I filed a lien. It expires after ten years if you don't re-file.

  12. #38
    Join Date
    Jul 2008
    Posts
    24
    Have you went and knocked on the door? I have taken units out and even ripped out duct work before!

  13. #39
    Join Date
    Sep 2005
    Location
    Atlanta GA area
    Posts
    21,057
    I want to add my THX to all that posted to this thread!

    I have updated my contract from some of the details read here. I will run it by the Lawyer before I start to use it. As the gentleman from Maryland said: Do this BEFORE you need it!

    It is my opinion that with a recession coming (I think it is already here, but you would never get a politician to admit that), there will be more of this problem. Better IMO to be prepared AHEAD of time.

    THX again for the posts and the thread.
    GA-HVAC-Tech

    Quality work at a fair price with excellent customer service!

    Romans Ch's 5-6-7-8

    2 Chronicles 7:14

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