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Need Advice - Install - Collecting

Discussion in 'Landscape Architecture and Design' started by DFW Area Landscaper, Jan 26, 2004.

  1. impactlandscaping

    impactlandscaping LawnSite Silver Member
    Messages: 2,332

    Since you didn't have a written contract from the get go, you were basically screwed from the start. People like this really irritate me to no end. They want everything for nothing, and all the while want to beat you down at the same time. If she had agreed to the price earlier as you said, but she wanted some"discount", you should get a micro tape recorder from Office Depot and go to her house and get her on tape agreeing she is satisfied with the work and the overall price.Explain the marks will fade on the stones , and that you got the information straight from Pavestone, yada yada , etc. Then take her to court, produce the tape as evidence, and sue her for defrauding you.You purchased the stones, and you hold the original invoice for the stones, so they belong to you until paid in full.Void her warranty, collect your hard materials that are unpaid, and place a lien against her home.Even if you don't go to court over this,she will eventually have to pay you in full for the lien if she ever wants to sell her house or re finance her home. You have been more than patient with this lady, it's time to step up and play ball...
  2. OP
    DFW Area Landscaper

    DFW Area Landscaper LawnSite Silver Member
    from DFW, TX
    Messages: 2,119


    I appreciate the feedback. I think olderthandirt had the best advice. That's just my opinion, but I appreciate everyone's input. I've taken the liberty of pointing out some of the advice that I thought was good and bad and explaining why.

    Olderthandirt brings up a very good point. If I take to her to court and I can't prove that I've offered to replace the scuffed stones or honor the 12-month warranty on the plant materials, the judge might just decide to give her back the $1,600 she's already paid. That's why I've decided to send her a letter, regular mail, indicating that I will gladly replace any stones that she feels are excessively scuffed and replace any plant materials that haven't survived AFTER she pays me in full.

    Jwholden recommended asking her to sign a document indicating that she owes me money. I think it's a great idea and I also thought of this one a while ago. But I just don't think she's going to be willing to sign an agreement for the full amount at this time, as she's already decided to argue about the quality and she's now using that as her excuse to with-hold payment. It think it would work if we could agree on a discount for the scuff marks, but the maximum I'm willing to come down is $200, and I'm only willing to do that if she can pay the remaining balance due immediately. In fact, if I accept a $200.00 discount, and get her to sign a document, I still have zero assurances that she's gonna pay. Even a judgement doesn't mean I'll get paid.

    Impactlandscaping recommended the mechanic's lien. That was my first choice. But I screwed that up by not getting a signed contract. A written agreement is a necessary ingredient for the mechanic's lien in Texas.

    A few recommended collection agencies and attorney's letters. I don't want to give up a percentage of this when I have the time to do it myself in the winter months. Most attorney's won't even write a letter for less than a hundred bucks. My time isn't worth much in the winter months. Besides, I would think a summons to appear in small claims court would have the same "fear" factor as an attorney's letter or a collection agency. I'm not sure what the collection agency would do when she started arguing about quality.

    A few also recommended removing the paving stones from the landscape under the guise of replacing or inspecting them. I think the lack of paving stones might motivate her to pay or it might motivate her to sue me. If she sued me after I removed the paving stones, I would think she'd have a very strong case to get her $1,600 back, plus court costs, etc. I certainly don't want to be paying her lawyer $150/hr to handle that (though I seriously doubt she has enough cash to get a lawyer). Anyway, I don't want to take that chance.

    Apreciate all the input, guys.

    DFW Area Landscaper
  3. D Felix

    D Felix LawnSite Bronze Member
    Messages: 1,898

    Boy, oh boy did your original question bring back bad memories of the first year. Our situation was slightly different though. We had been paid in full for what we had done to that point, but the old lady (old b*tch is more like it) kept wanting more, demanded that we fix mistakes that weren't ours, etc. and didn't want to pay for it!

    We ended up seeing a lawyer about the whole mess. I don't know what he ended up costing us, but I'm sure it wasn't cheap. However, SHE WENT AWAY! Sort of. She's not calling and insulting us at least. Now we think she's just spreading total bullsh*t about us in the septic ditch of a nieghborhood that she lives in...

    Anyway, something to consider is that a letter from a lawyer has merit. People are afraid of lawyers. They know (or should anyway) the ins and outs of the law, you and I don't. I'd consider one if I were you. Get a lawyer now, you'll need one sooner or later for some reason or another...

    If I were you, any letter I sent to her I would send via certified mail. That way you have a record of the fact that she actually recieved it. Otherwise she can lie in court and say she never got it.

    One more piece of advise that I learned with our little experience: WRITE DOWN EVERYTHING! Especially if you are working on a verbal contract! Write down what you remember NOW before you forget. Write down dates, times, places, what was said, by whom, and what was agreed upon by whom. This is VERY important! Verbal contracts ARE binding (we found that out with our experience).

    Oh, yeah, one more thing: TAKE LOTS OF PICTURES! You will need them.:)

    Hope you come out of this with at least some more money than you have right now.

    Have you learned to get everything in writing now?:D

  4. Peach

    Peach LawnSite Member
    Messages: 86

    I've read it all.. I think. I learned about this stuff the hard way. It's all in another thread and believe me. .. my two nonpayment stories would make most of you shudder. My customers were something other than yours. I can't say what the are. Libel or slander..whichever is written. Yours simply can't afford the price.

    Here are the facts I know-

    She can't afford it. You knew that in advance. That mistake costs a bit.
    She justifies nonpayment with a complaint you provided. (it IS scuff not effloressence.) That mistake costs a bit.
    By the way I don't consider scuff a viable complaint - it ages away but you are correct it isn't gone until bascially the pavers are no longer new looking. It doesn't clean off I mean. It's no big deal. Its simply an excuse for slow payment.
    I think your work looks great ... anyone else would too. I think your price is probably reasonable extrapolating from the bit I can see. Anyway she agreed to pay it .. it doesn't matter if it is a bit high. Forget that one. Her current objection about the profit margin is a clear statement to me that she couldn't afford this landscaping.

    My advice ... taking the pavers is bad for your rep. Getting even more adversarial is bad too. Don't do either. Believe me .. do that and people will hear ... you will lose future profit down the line... You will. In Indiana taking product is definitely theft as well. Payment doesn't matter .I don't understand but it's true . Don't do that.
    Under stand the problem. She COULDN't afford it. Discount an amount for the two problems I mentioned. Tell her you have made this as a final decision. Give her a very very flexible time period to pay ... a ridiculous amount. Like $200 to $50/ month. Apologize for the misunderstanding but firmly tell her you are owed for your work. I am 100% serious. Tell her about the pay schedule and the FINAL WORD on the deductions )they are not discounts either they are deductions). You can tell her why if you have to ... because she can't AFFORD it. That will hit her like a ton of pavers Do not argue. Do not defend. Do not say the deductions are because you scuffed the pavers. You might say one is because you pointed them out. She'll get your drift. You have nothing to argue or defend anyway .. she can't AFFORD it.
    It's psychology. Her pride is at stake. Give her her pride and you have made a friend.
    The only thing you want in writing is a promisasary note with payment amounts and timing. Have this document prepared before your next meeting. It is the only result you will accept. Make it clear. I recommend about $200 off for the two mistakes YOU made.
    Do not brook any further conversation re: scuff or profit. They are ridiculous and abviously only symtoms of the problem. Be nice but firm. Tell her you are concerned about her motives if she rehashes these things. Her pride is hurt and she is trying to hurt yours. That is all this is. Give her an out ... one she can feel she won a bit. Give her what she needs. MAKE HER SIGN and only if necessary tell her you have other ways of collecting the full amount immediately. She already knows this. You do btw. You have a case.
    But you do not want small claims court. You do not want to admit anything in writing or verbally.
    If this tactic doesn't work have a lawyer send a collection letter. Polite smolite. If the extended time doesn't work you will not collect this one anyway.
    If it works ..consider each check a bonus and take the wife/girl out to dinner.

    If she signs the promissary note and does not pay.. now you have your contract. She cannot rehash any complaint. If she agrees to terms and will not sign.... Stay nice, but leave immediately, and deliver the rather nonpolite collection letter very soon.

    Still. Small claims court... I don't think I would. You decide. In Indiana it has no collection power anyway.

    Some rare people love this kind of drama. A person who waved down a landscaper in traffic just might be a suspect for this. I love that part of your story.

  5. OP
    DFW Area Landscaper

    DFW Area Landscaper LawnSite Silver Member
    from DFW, TX
    Messages: 2,119

    Peach, D Felix,

    Thanks for the input. I have made a written journal of every conversation.

    I sent her statement yesterday via regular mail along with a letter. Here's the cut & paste of the letter:

    Dear XXXXXX,

    I want you to be happy with your new landscape. I’m willing to do whatever is reasonably necessary to ensure that you’re happy with the end results. However, I am not able to warranty plant materials or replace any paving stones until I have been paid in full. After payment has been rendered, I will be happy to honor the 12-month warranty on the plants and replace any paving stones that you feel are excessively scuffed. The balance due at this time, which is over 120 days past due, is $1,033.15. The 12-month warranty on the plant materials expires on August 15th, 2004. If you have any questions or would like to discus, please give me a call.

    Well, she called me today. She sounded mad, but I was polite and she couldn't bring herself to be ugly with me because I was polite. She said that she paid $200 in December that wasn't showing up on the statement. I opened Quickbooks and explained that since I had finished the job, I had received two payments of $200 each, the last payment was received on December 22, and it was on the statement that went out on the December billing. She said she would have to go back and recalculate things on her end. She did bring up the issue of a discount again. I told her that I realize the scuff marks are there and I told her I had been back out to the Pavestone plant with photos of her landscape. I told her that I didn't expect the scuff marks to fade anytime soon, it's already been six months, and if she wants me to replace the stones I will be happy to do that after I'm paid in full. She kept bringing up the subject of a discount. I told her that I might be willing to accept a small discount. Sarcastically, she said "How much, forty bucks?" I said "Well, the entire job was about $2,400, so I'd think 5 to 10% off might be appropriate. If we could agree to 10%, that would be right around $300 after the sales tax comes off. But I'm only interested in discounting if you can pay the balance in full." She didn't like that. She said she would send another $100.00 on payday. Just reading between the lines, I get the feeling that'll be the last payment I get from her.

    My plan at this time is to continue writing everything down that happens with this account. If she goes 60 consecutive days without making a payment, I think I'll just file charges in small claims. I'm taking a photo of my incoming caller ID cell phone right now to prove that she called me. From here on out, I'm leaving nothing to chance.

    I can easily live without the balance due. It's probably more trouble than it's worth to consider small claims. But it's just the principal of the matter. If she couldn't afford the landscape, fine. She shouldn't have agreed to have it done. I have little sympathy for someone who refuses to live within their means.

    DFW Area Landscaper
  6. D Felix

    D Felix LawnSite Bronze Member
    Messages: 1,898

    If I were you, I'd do as Peach suggested. Get her to sign a payment plan.

    It's too late now, but the letter you sent said you would replace any pavers that SHE felt were excessively scuffed. You should have said you would replace any that YOU felt were excessively scuffed, not the other way around. Now she can complain that they are ALL scuffed and that they should be replaced. Leaves you eating that cost.

    Personally, I wouldn't bother with small claims. Get her to sign the payment plan, then put a lien on the house. The payment plan should be enough of a contract in order to do that. You may not get the money right away, but she certainly won't be able to get any more loans or credit cards until you see the money from her. You probably have a much better chance seeing money from a lien than you do from court.

  7. OP
    DFW Area Landscaper

    DFW Area Landscaper LawnSite Silver Member
    from DFW, TX
    Messages: 2,119


    I think you're right about the "she feels" vs "I feel" thing. I got to thinking about the other day after I mailed the letter. Oh well.

    As for the mechanic's lien in Texas, yes, a written contract is a requirement. However, the mechanic's lien must be filed within so many days of project completion. The project was installed in August. It's been over 120 days. I forget, but I think the time limit to file the mechanic's lien is either 30 days or 60 days.

    A small claims judgement is picked up by the credit reporting agencies. If the credit card companies see an unpaid judgement, I doubt they're going to loan money.

    DFW Area Landscaper
  8. OP
    DFW Area Landscaper

    DFW Area Landscaper LawnSite Silver Member
    from DFW, TX
    Messages: 2,119


    Update: She sent $100 on February 3rd and then another $100 on April 14.

    Today, I go out to the mail box and I have a payment from her. Another $200, leaving her with a balance due of $660.43.

    But there's also a letter:

    As you know my dealing with you and your job on my courtyard has been a strain on me emotionally and I'm disappointed that my trust in your business was too great early on before you had enough experience and your own equipment so my pocketbook would not have to support the lacking. Please find the enclosed $200 check wich brings payments to you as $2000.

    Our initial agreement was for $2193.66. I agreed to the additional lights and according to your list that you gave me, your estimated cost was $147.91 and actual cost was $107.74. I enclosed a copy in case you needed it. Even with your estimated cost, I was overcharged which has been an issue as well as dissatisfaction with the pave stone scraping/marring. I called Calloways last fall and receive RETAIL costs for the items you planted and I know in spite of your supposed cost, that I was over charged. I feel you took advantage of my loyalty to OSU and hoping that I didn't know much so you could take advantage of me. I want my dealings with you to be over.

    Earlier you and I had discussed a discount. You offered a 10% discount with which I was disappointed, yet I knew it was a mute point until I was close to being through with a payoff. That time is approaching. I would like to settle this and have only one more payment to you. You're trying to charge me a total of over $2,500 and I would like to make the offer of one more payment of $100. That brings my total payments for the job to $2100. Please let me know if you are agreeable to this so I can try to finish this in June.

    No need to think I would ever contact you again for anything once we've settled.

    Then she signed the letter.

    She didn't admit in writing that she ok'd the extra $200 plus sales tax for the lights. But other than that, I think I've got her in small claims.

    Her concerns are with my profits. Any small claims judge, I would think, would read that letter and rule in my favor. It doesn't matter how much I made. That's a moot point.

    Any thoughts or advice? It would seem things have changed dramatically with my chances in small claims.

    DFW Area Landscaper
  9. capital

    capital LawnSite Member
    Messages: 118

    Write off the bill to bad debt and move on............you are wasting time on a bad decision on your part. Learn from this and move on, based on the numbers of post you have written and time you have wasted you would of been better off replacing the scruffed stone up front..................sending her three statements IE 89 days and off to a collection agency. Your Time is Money and you have lost money so why persue more time and loose more money ?
  10. D Felix

    D Felix LawnSite Bronze Member
    Messages: 1,898

    What you charge is what you charge. Just because someone else charges differently doesn't mean that you should charge what they charge. Loyalty to a college should have nothing to do with it.

    When we give an estimate, the plants are listed with a TOTAL plant price, not individual plant prices. If a client is not happy with the cost of plants, then we move on.

    If you want to take her to small claims, go ahead. It may not be worth it though. I would be more willing to turn it over to a collection agency than to take her to court. I don't remember the whole thread, but now that you have the letter that backs up most of what you agreed upon, a collection agency is probably the way to go. Chances are that even with a court ruling in your favor, you still won't ever see another dime.


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