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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 100052
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am a contractor,flooring ,tile etc. There is a dispute

Customer Question

I am a contractor,flooring ,tile etc. There is a dispute with homeowner on payments that were made a month ago thru a credit card machine . He has backcharged 5000.00 . and I do not agree with this . I'm a very small company, myself and my wife are the only employees,this could finish me ,what can I do?
I have been told to file a lien on the property ,but I don't know what to do,there was no contract signed just an estimate/invoice
Submitted: 11 months ago.
Category: Legal
Expert:  Ely replied 11 months ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. The fact that there was only an oral agreement to the work does not invalidate the work. The oral agreement is still a binding contract. The estimate is proof of the agreement, as was the work itself.

The customer took advantage of the credit card's policy to challenge the charge. The credit card company will only reverse the charge if the customer can show that the charge was unauthorized, which he likely lied and stated that it was.

At this point, someone in your situation has two options:

1) File a LIEN. See HERE for an explanation of this is done. This may force them to pay, or the lien would not be released; or

2) File a small claims court matter for breach of contract and money had and received. To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) the plaintiff's performance or tendered performance; (3) the defendant's breach of the contract; and (4) damages as a result of the breach. Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 923 (Tex. Ct. App. 2006).

Money had and received is a cause of action where money is held by a party that rightfully belongs to you.

This would be a small claims court case. See HERE. Although the directions are for Harris County, they are very good and give a general overview for any Texas county.

A letter threatening this may be enough to have them pay without having to file anything.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 11 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never rated positively. I am simply touching base. Let me know. Thanks!