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Loren, Attorney
Category: Legal
Satisfied Customers: 28537
Experience:  30 years experience representing clients.
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On this past Tuesday, I agreed to have some cement work done

Customer Question

On this past Tuesday, I agreed to have some cement work done on my home by a private contractor. His references were reputable and I agreed to the work without a contract, he agreed. I gave him an advance of $1,100.00 for materials as he requested. He said he would be at my house at 0900 on the next day Wednesday to begin the project. Two big mistakes already I know.
On Wednesday at 0900 he was nowhere to be seen. He did not call, email or text me. Finally, late that afternoon I emailed him asking why he didn't show. I got no response.
I just figured he had gotten busy with another job and, as he seemed a "good" guy, he would probably show on Thursday morning. I was in no hurry for the work and in Bozeman, contractors are crushed with projects. However, I contacted the bank where he cashed my check and they said he had cashed it not 15 minutes after I gave it to him, paying a 10% fee because he apparently had no bank account in town. RED FLAGS No show for two days, he paid a $100.00 fee to cash the check and had not answered my texts, emails, or calls.
As I could not contact him by any means, I called the contractor who recommended him
to see if he knew where he was and told him I was going to see the Police as I, of course, suspected fraud. 10 minutes later my guy calls me with one excuse after another. At that point, I told him our deal was off as I didn't trust him to be reliable.
I ask him to return my money ASAP and I wouldn't give him any negative reviews. He was full of excuses and said he would start the work that afternoon. I told him no I can't be waiting around for him and am postponing the project. He hung up mad.
He called again later trying to make amends but I had had enough. He gave me the old song and dance about having already spent the money on materials. I said that's too bad but he could return them to the supplier if he was a valued customer.
Finally, after two other calls, I told him to send me a money order or cashier's check for the full amount. I told him to put it in the mail today Friday so that I received it in Monday's. mail. I told him even though we had a verbal agreement, consumer law allows three days for a change of mind and that I had met that requirement.
He called again arguing. I told that I was tired of all his shenanigans and should I not
receive the full amount by Monday, I was going to contact the Bozeman Police. I believe I am within my rights as he failed to meet his original obligation. I have a feeling that had I not contacted his friend who recommended him he would be long gone.
I don't feel he will return my money. Is the Police the best recourse or do you recommend another manner of making him pay me back? I would also like an opinion as to whether I am on solid legal grounds in canceling the work and requesting my down payment be returned. Thank you.
Submitted: 2 months ago.
Category: Legal
Expert:  Loren replied 2 months ago.

Good day. I am Loren, a licnesed attorney, and I look forward to assisting you.

You can sue the contractor for breach of contract. I would recommend suing in small claims court. Small claims court is designed to be "user friendly" so that you can present a claim without an attorney. Also, it moves much more quickly than regular court. You can get the necessary forms to start from the clerk of the court.

With regard to the 3 day right of rescission, it does not apply to all consumer contracts, and it does not even apply to most. Only a few specific types of contracts apply, such as door to door or telephone solicitation.

Additionally, for those transactions to which it does apply, the cancellation must be in writing. A cancellation over the telephone would not be sufficient.

You can still sue for breach, though, and seek the return of the deposit.

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