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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26694
Experience:  Began practicing law in 1992
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I just received a summons , my ex employer is suing me for

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I just received a summons , my ex employer is suing me for fraud as I was a sales manager and sold work on the side without going through them. they said they offered me the option to pay them for it, but that was never mentioned. They are including my wife in this as they say she knew or should have known. What do I need to do?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

JD 1992 :

Did you "sell work" that they should have been paid for or was it work someone else did?

Customer:

It was work that they ended up doing as I paid them to do the repair, when they were there, they said there was more wrong. They probably spent 300.00 on extra material, and they had told me before I got fired that it would be 26 hours of labor.

JD 1992 :

So their claim is just BS?

Customer:

yes, I

JD 1992 :

Are you intending to hire a lawyer or try and handle it yourself?

Customer:

Yes, I had the customer ( friend) pay me to save him money, than the crew said there was more damage. I made up an estimate, not on their contracts and that is what the customer had. I agree I should pay the 26 hours labor and material, but there was no fraud involved and wife had nothing or knowledge of this

Customer:

I think I need to have an attorney

JD 1992 :

How much are they suing you for and what court is it in?

Customer:

5 counts of fraud for in excess of 25000. and Allen county Court in Lima, Ohio

JD 1992 :

Yes, you definitely need a lawyer if it is that much money. Your lawyer should be able to get your wife out of it pretty quickly.

JD 1992 :

What specific questions do you have?

Customer:

What type of Lawyer do we need?

JD 1992 :

You would want a lawyer who does civil trial law or civil litigation. You can go to www.lawyers.com and search by location and by area of practice.

Customer:

If the customer made the check out to me, how can they sue me for it?

Customer:

It did not mention the company anywhere on the estimate

JD 1992 :

I'm not sure what their basis is. My guess is they are saying that since you worked for them anything that could have some to them directly should have so it is something like "unjust enrichment" or "breach of duty".

JD 1992 :

Essentially you were running a small business on the side and subcontracting the work out to them, correct?

Customer:

correct, alot of sales people in the company does this. Plus they are saying I would get kick backs from sub contractors, which I did, on some big jobs, but that was out of their pockets

JD 1992 :

It's a complicated kind of case. There are some theories of law that say if an employee gets a kickback they are obligated to turn it over to the employer or refuse it.

JD 1992 :

I think they have a harder time on the other part of the case unless you had a written contract preventing you from doing that kind of work.

JD 1992 :

And I don't see a case against your wife at all.

Customer:

The company made 18% on every sub contract for nothing, but want to control them too, the sub contractors feel they can give money or gifts to whom ever they wish

JD 1992 :

You have some potential liability on that issue but probably not on the other.

JD 1992 :

As I said, there's some law out there saying that an employee has to turn that money over to the employer. It's not 100% and is very fact intensive but it is something that will have to be addressed.

JD 1992 :

The side business is a different matter.

Customer:

My wife purchased a home in April and they are saying she gained from me getting this extra money, and that is how she purchased the home, which is not true

JD 1992 :

That claim will probably be disposed of pretty quickly. It's a huge reach to make that claim.

Customer:

They will not be able to do anything against the home she just got?

JD 1992 :

Probably not.

JD 1992 :

They will ask the court to impose a "constructive trust" on it but based on the facts you've given they are very unlikely to succeed.

JD 1992 :

Does your wife work?

Customer:

How can they say I owe a certain amount of money, or is this just the basics?

Customer:

Yes, she works for a doctors office

JD 1992 :

This is just what is done in lawsuits. You make big allegations knowing that you aren't likely to get that much.

JD 1992 :

I'm not sure why they included the wife in this.

JD 1992 :

Bad strategy.

Customer:

Last question, I got paid along with all the other managers in 2011 and they said they overpaid us and took a lot of money back from our pay, was that legal? it was around 15000.00

JD 1992 :

It is conceivable it is legal under a very rigid set of facts but what you would want to do is countersue them and then the burden would be on them to prove it was legit.

Customer:

ok, thank you, XXXXX XXXXX talk to attorney on Monday

JD 1992 :

Anything else I can assist you with?

JD 1992 :

One question on the pay they took back, did you sign anything authorizing them to do so?

Customer:

No, they sent notices out to each manager and told them how much they owed, and said it would be taken out of our checks until it was paid in full... Than in November of 2012, they called me and wanted me to pay it off, since I did not have 4800.00 which was left, they took it out of my next big commission check

JD 1992 :

That was illegal then. They can't take money out of your check without written authorization if you are an employee. You may still have owed them money but an employer is not allowed to withhold money without an agreement in writing. Discuss this with the lawyer because you may be able to get damages for it even if you actually owed them reimbursement for the money.

Customer:

ok, thank you, XXXXX XXXXX case something the lawyers will discuss before court date or wait until court?

Customer:

It is set for 8-15-2013

JD 1992 :

They'll discuss it ahead of time and try to see if some agreement can be reached.

JD 1992 :

You need to hire the lawyer ASAP. If you were just served that isn't really going to be the trial date but this involves a lot of issues and you want the lawyer to have plenty of time to research and prepare for them all.

Customer:

They have not paid me my last salary check or commissions, they still have my 401K and company stock. I still had 2 weeks vacation and 1 week personal time.

JD 1992 :

How long ago did you leave there?

Customer:

Got ter

Customer:

Got fired on May 15

JD 1992 :

They should have paid you by now as well so that's another counterclaim you have.

Customer:

Thanks, XXXXX XXXXX think of anything else, but glad to discuss this with you.

JD 1992 :

You're very welcome and best wishes to you on this.

JD 1992 :

I'm going to exit and assist others but please don't forget to leave a Positive Rating, of course I'd suggest Excellent, so I get credit for my work.

Customer:

no problem, thanks

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26694
Experience: Began practicing law in 1992
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