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Richard
Richard, Attorney
Category: Legal
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Experience:  Attorney with 29 years of experience.
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I searched out a fence contractor and after 5 weeks, picked

Customer Question

I searched out a fence contractor and after 5 weeks, picked one from 6 that provided bids to me. This is for a residential fence. We met and signed a general contract that outlines the work to be done and what I will pay for that work. The contract does not have time lines for the start or completion of the project. I gave the contractor 50% up front money and he told me and my wife that he would begin work in about 10 days. That we would be seeing material delivered in about 8 days. At the 8 day point we had nothing delivered. I made contact with him to let him know and ask him to come out and mark the area in the yard (front and back). He came out and did that. At that meeting I asked him again when he would start and he said that it would be in 4 days but we would see materials delivered sooner. No materials arrived and I informed him again and made it clear to him (as I did on the onset) that this project was the most important project we had for our new home. The 4 days came and no materials. I made contact with him several times to both illustrate my dissatisfaction and my concerns. He informed me that he had placed an order with a vendor in Ohio and they had put the material on a truck and it was suppose to have been delivered by now. He made another commitment to come out because he was going to purchase material from a local supplier. After he did not arrive for that promise date, I was able to make contact with him again and he told me he had been floating money and that he could not purchase locally because he did not have the funds. I asked him to refund my deposit and he said he would. I asked him to put in writing and txt or email it to me and that I would send to him a summary of our situation and my expectations, and that I would like for him to make any corrections needed and respond back with an agreement. He did not. Today I sent to him via certified letter a copy of that email and my reasons for asking for the refund and the terms of that....5 business days, and that I would only accept cashiers check, money order or cash.

I am in Indiana. My question is it has now been 24 days since we paid the deposit and he has not done one thing for that project. Do I have a legal right to cancel the contract and demand my deposit back?
Submitted: 1 year ago.
Category: Legal
Expert:  Richard replied 1 year ago.
Hi! My name is XXXXX XXXXX I look forward to helping you!

Yes, you absolutely have the right to terminate and receive all your money returned. Even though your contract does not have a specific time frame, a "reasonable period" is implied and his verbal promises solidify that the reasonable period of time has been far exceeded. He's thus in breach of contract! What you want to do is raise the stakes on him so that he knows that not complying with your demands is going to cost far more in the end than simply giving you your refund now. You should send him a certified, return receipt requested letter detailing the history, terminating the contract due to his default, and demand that he refund your money in total within a short specified period of time. Inform him that if your demand is not timely complied with, you will have no choice but to file a suit against him for your damages. Be sure to specifically mention that you will be filing this claim not only as a breach of contract case, but also as fraud and deceptive trade practice causes of action, which will entitle you not only to your damages, but also an additional amount equal to multiple times your actual damages as punitive damages. That should provide plenty of incentive to comply with your demands; but, if it does not, file your suit. Even if you have to file the suit, that's likely all you will need do. In my experience, he will settle this without a hearing rather than risk punitive damages and the fraud and/or deceptive trade practice judgments being on his record.



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Customer: replied 1 year ago.


Richard,

Great advice and very prompted too. I have below I have included a copy of the email I sent to him which is also the letter I sent to him via certified mail today (return receipt). If he doesn't respond to this I will send another one with all the other details that you point out that should go in that correspondence.

////////////////////////////////////////////

XXXXXXXXXX

SUBJECT: Refund on installation of fence re: XXXXXXXXX

DATE: 10/14/2013

COPY OF EMAIL SENT ON 10/12/2013. See below

XXXXXXX,

Please see the information below. This is to officially inform you of our intent to recapture the $7060 that you promised to refund me.

I can meet you at your bank if you wish to pay cash if you would like to pay with cashiers check or money order, you can bring it by our house or I can meet you some place half way between your home and mine

Regards,

XXXXXXX.

-----Original Message-----
From: nolandatcss <XXXXX@XXXXXX.XXX>
To: davemccarty1 <XXXXX@XXXXXX.XXX>
Cc: NBrouss423 <XXXXX@XXXXXX.XXX>
Sent: Sat, Oct 12, 2013 7:09 pm
Subject: Fence at XXXXXXXXXXXX

Dave

This is a short summary of the issue(s) we have discussed.

You and I entered into an agreement on Saturday 9/21 for you to build/construct a wooden fence on our property XXXXXXX We gave you a $7060 good faith check (# XXXXX) and according to our bank records you deposited that check in your account and it cleared on 9/23. At that time (on 9/21) you indicated that you felt you would have the fence completed by some time during the second week of October. On Tuesday October 1st, at my request, you came out and marked the property with stakes indicating the location of the post. At that time you indicated that we would see materials brought to the back of our property as early as Saturday 10/5 and that you may be able to start work the following as early as Tuesday 10/8 and Wednesday 10/9 at the latest.

Materials have not arrived as of today (10/12/2013). You and I have had no less than 5 phone conversations on this and several email/text messages too. On Thursday of this week (10/10) you indicated that you would start on Saturday 10/12 even though your supplier "Master Fence" had still not delivered, You mentioned to me that you would purchase the materials at Menards if the material did not arrive so you could get started. Today after I made contact with you this morning, you indicated that you had an emergency that you would not be able to begin today. Mid afternoon today, I indicated that I was not satisfied with the lack of progress on the project and requested that you refund our money (more than $7060). After several text messages and phone calls to you, you did call me back at 5:56 PM and indicated that you would refund my money. That after several attempts to get resolution with your supplier you had not been successful yet. You also indicated to me that you were floating money and did not have the funds to purchase the goods at Menards to get the project under way. You agreed to refund the money back to us. I indicated to you that I would be willing to wait until end of business on Monday to see if you received your funds from the company you had just finished a job at yesterday.

This is an adder to this email in the sense that you and i did not discuss this, but I talked with Kathy after you and I talked and this next paragraph is a result of that.

At this point Dave, Kathy and I must pursue other avenues to get the fence done prior to mid November, however we will need the $7060.00 back in order to do that. I am willing to provide to you 5 business days for you to do that. So by end of business on Friday 10/18 we will need our funds back in full. We will need either a cashiers check, money order or cash. Unfortunately, if we do not receive the $7060 by this time frame, you will leave us no other choice but for us to look at pursuing this through legal channels. This is certainly not anything we would want to have to do and I assume you would prefer that not to happen either.

I do not take any of this personal and understand that this is a business issue. At the same time, you are holding $7060 of ours that we need back to move on to contracting another contractor.

Please make any corrections you feel necessary to the email and then send back to me. Please do that within the next 24 hours.

Regards

Noland

Expert:  Richard replied 1 year ago.
Thanks for your reply Noland. I think your correspondence is great! You should consider law school! :) Now, if he doesn't refund your money, send the additional letter. Please keep me updated, if you don't mind! Have a great day!
Richard, Attorney
Category: Legal
Satisfied Customers: 47036
Experience: Attorney with 29 years of experience.
Richard and 13 other Legal Specialists are ready to help you
Expert:  Richard replied 1 year ago.
Thanks so much for the positive rating and the generous bonus! I appreciate your kindness and the opportunity to serve you!

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