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CalAttorney2
CalAttorney2, Attorney
Category: Business Law
Satisfied Customers: 10244
Experience:  I am a businesses law attorney, with experience advising and representing owners and investors.
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I owned a Curves Franchised, when I bought it second hand,

Customer Question

I owned a Curves Franchised, when I bought it second hand, I also bought the merchant data machines to bill the customers. From Northern Leasing, they faxed me a contract for me to sign 3yrs. The day I opened I did not recieve the equipment. For one week no machines. Had no way to bill my clients.Or except new members. Very stressful. Noway to contact the Northern Leasing, couldnt not find the paperwork. Being I was new owner and very scared. So I went to my bank Suntrust in tears. and they set me up in one day, with First Data, merhant machines. When Northen Leasing finally came, UPS we didnt not sign or take them. They harrassed me for years, somtimes 50 times a day. calling. Letters non stop.I sent a letter from a lawyer and they ignored it. The lawyer said they never delivered the goods on timed breach of contract.
So I didnt hear from then for one year and then I hear from then again. They say It is with a lawyer and I will have to go to New York, I live in Fl. They will settle for 500.00. When i owe 2,000. But i never once did any bussiness with them, i did it with my bank , Suntrust. So how do i end this madness. pay the 500.00? i hate pay money i dont have. I already paid a lawyer $200.00 about 4yrs. ago. thank you kathi XXXXXXXX
Submitted: 4 years ago.
Category: Business Law
Expert:  CalAttorney2 replied 4 years ago.

Attorney William B. :

Hi Kathi, I would like to assist you with your legal issue today. I cannot provide you with advice specific to your legal problem (no attorney/client relationship and I do not have the facts sufficient to provide a complete legal opinion). I can however, provide you with general legal principles that apply to situations such as the one you are describing.

Attorney William B. :

My understanding from your post is that you are describing the following: (1) a written contract signed in Florida between a supplier of merchant machines, and a proprieter for the lease of equipment; (2) the supplier failed to provide the equipment in a timely manner under the terms of the agreement; (3) the failure to provide the equipment caused economic harm to the proprieter through an inability to perform business; (4) the proprieter immediately leased alternative equipment from a third party which provided the equipment in a timely fashion; (5) after receiving the replacement goods, the initial supplier's product arrived, and was refused by the proprieter; (6) the supplier demanded enforcement of the contract; (7) the proprieter's attorney wrote a letter identifying the supplier's material breach and the proprieter's election to void the contract; (8) the supplier did not contact the proprieter for approximately one year after this notice; (9) the supplier now threatens suit for breach of contract, and wishes to enforce the contract in New York state.

Attorney William B. :

Given the facts as stated, it appears that the attorney's letter regarding a material breach and voiding the contract is reasonable. A proprieter that cannot perform business without a necessary piece of equipment can be entitled to void the contract when a supplier who is aware of the fact that the equipment is critical and fails to produce the product without any acceptable excuse.

Attorney William B. :

I should start by stating that this is a contracts question, and all contracts questions must start with a careful reading of the contract (please make sure you do, it will include terms for prompt performance, breach, etc. that you should read and these terms are required to be in language that is understandable.

Attorney William B. :

There is also a waiver issue in the fact patter identified above, waiting for over a year after being notified by an attorney that a contract is being declared void by one party raises an issue called "estoppel" this basically means that the other party did not raise the issue earlier, so they cannot raise it now. (This is a very fact specific argument, so I cannot tell whether or not it applies, but I can tell you that it is something you should consider given the generic facts as I have summarized them.

Attorney William B. :

The forum issue is straightforward from a legal sense: Courts will allow parties to select the choice of "law" (e.g. this case will be decided under Idaho law), but they cannot select the forum (if the case is properly venued in Texas, it must stay there). If you have no business relations in a state outside of Wisconsin, do not reside there, and did not enter into a contract there, there does not exist a proper basis for venue outside the state.

Attorney William B. :

As far as the valuation of the potential claim, a $2,000.00 claim generally falls within the "Small Claims" jurisdiction, where individuals represent themselves (only entities such as corporations are required to have attorneys, as they cannot appear themselves), but trials are less formal, and the process is much less expensive. I cannot provide you with strategic advice in this matter, the following are only three of perhaps many possibilities that are more accurate or relevant given your particular facts and case, the following may be reasonable possible outcomes: (1) the supplier sues the proprieter out of state, receives a small judgment, and attempts to enforce it in state, the judgment is subject to "collateral attack" for lack of jurisdiction (forum); (2) the supplier sues the proprieter in state in small claims court at which point the parties each present their prospective arguments; and (3) the proprieter sues the supplier for whatever costs and expenses were incurred for the lost profit due to the suppliers' failure to produce the product on time initially.

Attorney William B. :

I hope the above is helpful, please let me know if you need more information, if I need to clarify something, or if I missed or misunderstood something. I will be happy to follow up.

Attorney William B. :

Dear Kathi, I do want to add that as a practical matter, most litigants (including large scale companies) will evaluate the costs and benefits of litigation prior to engaging in suit. This is the difference between a legal right and a practical claims analysis. I have no way to assist you with evaluating your own claim, I do not have the information to actually evaluate the value of the claims or counter claims in any potential or hypothetical suit, I cannot tell you how aggressive the creditor you are dealing with, nor how strong the claims are, but these are things litigants or potential may wish to consider in evaluating threatened litigation.

Expert:  CalAttorney2 replied 4 years ago.
Dear Kathi,

I want to follow up with your breach of contract question. If you have any further questions (or if my response was not helpful), please do not hesitate to follow up, I do want to help as much as possible.

If you have not yet done so, and if I have fully answered your question, I would appreciate it if you rated my response to your post. I wish you the best of luck with this matter, and with your business venture.

Best regards,
Bill
Expert:  CalAttorney2 replied 4 years ago.
Dear Kathi,

I hope that the information I provided in this post was helpful. I would appreciate it if you would give me a positive rating as I only receive credit based on your positive evaluation of my work.

If you are unsatisfied for any reason, or require more information, please ask and I will follow up.

Best regards,
Bill
Expert:  CalAttorney2 replied 4 years ago.
Dear Kathi,

I wanted to follow up on my response to your inquiry regarding contract enforcement. I hope that the information was helpful, if you have any further questions please let me know.

If I was able to respond fully to your inquiry, please rate my response as I only receive credit for a positive rating.

Best regards,
Bill

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