Showing posts with label Home Improvement Fraud. Show all posts
Showing posts with label Home Improvement Fraud. Show all posts
Mechanic's Liens and Permits: A New Court of Appeals Case
An Evansville area contractor lost its lien and its appeal by not getting the building permit in the proper way. Hopper Resources Inc., Construction Div. v. Wendell Webster (PDF format) decided yesterday turned on the way that the contractor obtained the building permit:
But losing the foreclosure was not all that the contractor lost - the contractor also lost on the breach of contract claim. The Court of Appeals sank the breach of contract claim in this paragraph:
read more “Mechanic's Liens and Permits: A New Court of Appeals Case”
On November 25, 2003, Shamo went to the Building Commission office and obtained an Improvement Location Permit for the addition of a bathroom and a porch to Webster’s residence. Shamo completed a “Homeowner Affidavit” stating that “Wendel [sic] Webster” thereby swore that “either [he] or a member of [his] immediate family” would “perform the . . . work” of adding the room and porch at his residence, “for which Building Permit #106771E” was being issued, and that he would not be “subcontracting out any of the work” thereon. (Ex. A). Shamo signed Webster’s name on the affidavit....Contractor filed suit to foreclose the lien. Contractor lost at the trial court level and appealed. The Indiana Court of Appeals noted that foreclosure is an equitable action and listed several equity maxims: One who seeks equity must do equity, One who comes into equity must come with clean hands, and equity follows the law ( see page 7 of the opinion).
But losing the foreclosure was not all that the contractor lost - the contractor also lost on the breach of contract claim. The Court of Appeals sank the breach of contract claim in this paragraph:
Next, Hopper argues that it “was entitled to recover on breach of contract,” citing “unrefuted evidence” that it “was owed and ha[d] incurred damages” in the amount of $7,500.00 “as a result of Webster breaching the parties’ contract by running Hopper off the job and refusing to pay.” Hopper’s Br. at 29, 30. The evidence was that Webster refused to allow further work by Webster after the inspector found that the work failed to comply with Code. The Homeowner Affidavit expressly provides that “if the Inspector should find the work in the violation of the Code, then [the homeowner] shall employ a master installer of the required trade or craft to change, alter, or repair the work that is in violation.” (Ex. A). Hopper offered no evidence to establish that it held such credentials...Absent a showing that Hopper held credentials to perform the corrective work required by the Homeowner Affidavit, the circumstances here did not require that Webster allow Hopper workers to perform further work. Therefore, Hopper’s breach of contract claims must fail.Reading the case, I was surprised that the homeowner did not file a counterclaim based on Indiana's home improvement fraud statute. The homeowner filed a counterclaim and asserted an affirmative defense of fraud, but the counterclaim was struck by the trial court. The Home improvement statute says the following about permits:
IC 24-5-11-9Considering how the contractor obtained the permit in this case and the type of permit, I think the contractor got lucky in escaping a home improvement fraud suit.
License or permit as prerequisite
Sec. 9. Where a license or permit is necessary for any part of a home improvement, the home improvement contract shall be subject to obtaining the necessary licenses or permits prior to any work commencing.
Contractors - do you know how to protect yourself from home improvement fraud?
Most contractors do not know how to protect themselves from Indiana's Home Improvement Fraud statutes. Most refuse to talk to an attorney for fear of the costs of legal services. Instead they may face civil and/or criminal penalties. I know Indiana contractors run on narrow margins. Having narrow margins does not mean that a contractor need be lumped into the category of fraudster.
I intend to follow up this post with more details for both contractors and the general public on home improvement fraud. However, let me illustrate the problem a bit more with these items I found with Google.
A forum posting from a person who appears to have been a contractor here:
This headline from the Anderson Herald-Bulletin: Anderson firefighter arrested on home improvement fraud charges
read more “Contractors - do you know how to protect yourself from home improvement fraud?”
I intend to follow up this post with more details for both contractors and the general public on home improvement fraud. However, let me illustrate the problem a bit more with these items I found with Google.
A forum posting from a person who appears to have been a contractor here:
Hi- I am looking for answers with legal questions; i used to own a business in indiana Construction--15 years--i am charged with theft--due to 2-downpayments for work not started. my company has unique circumstances and is out of business as of 1997 because i havent ben able to return the money paid to start these jobs the county or state says that i stole this money simply cause i did not return the money i am since then broke and still somehow will return this money but in the meantime they are prosecuting me and i am fighting this because i believe this is maliscious prosecution of a debt that i owe and the prosecuter has turned it criminal --according to the little info i have i read a brief that the fair debt practices act says this is malicious prosecution because this is a debt and therefore falls under a civil only collection practices --does anyone know where i may find an attourney to help my fight and any idea's would help--also is this just me selfishly justifying myself or does my argument make any sense to anyone else (many factors brought about this:whether/personal) please help me i pray for someone to help me make sense of it all --may jeses bless you'All Sincerly Stan
This headline from the Anderson Herald-Bulletin: Anderson firefighter arrested on home improvement fraud charges
Finally this from Indiana's Attorney General
FOR IMMEDIATE RELEASE
January 31, 2007Court Orders Indianapolis Well Driller to Pay More than $265,000
Dee Hughes Entered into Home Improvement Contracts and Failed to Complete JobsINDIANAPOLIS, IN – Indiana Attorney General Steve Carter announced today that the Marion Superior Court has ordered Miliadee Hughes, also known as Dee Hughes, to pay more than $265,000 for entering into home improvement contracts and either failing to complete the jobs or doing no work at all. The judgment is the result of a lawsuit the attorney general filed against Hughes last November and includes refunds for 9 consumers.
Introducing Indiana's Crime Victim's Statute
Indiana law provides a special remedy for victims of some crimes. This remedy is the Offenses Against Property statute. One can find the statute at IC 34-24-3. This article is a bit of a follow up to my post Trademarks: Hershey Sues in Indiana Over Parody.
As I wrote in that article, I find it difficult to explain what attraction the Crime Victim's Statute has for that case.
As for my list, I complied this for an article I never quite finished on this statute. Which means the chart might have a bit more interest to lawyers than to laypeople. The first column lists the crimes which can be used for a civil suit. The remaining columns show the kind of mental state is required to prove a case. Yes, one must show the defendant acted with criminal intent required under the criminal statute.
As anyone can see, the crimes listed are not ones to truly attract a lot of civil l
litigation. Some do not even have a very wide application in Indiana (like unlawful acts relating to caves) and others probably lack the prime requirement for a civil suit: a defendant with money.
My experience with the statute begins and ends with check deception, conversion and criminal mischief. The criminal mischief case involved a defendant splattering a very red paint throughout a very white kitchen. While another statute exists for check deception, this statute has fewer procedural requirements.
With conversion cases, this statute allows for attorney fees where common law conversion does not. The attorney fee provision also lead to the use of the statute with the criminal mischief case. Note that the statute requires payment of reasonable attorney fees. However, the judge or jury decides what is reasonable. In my case, the judge cut off about a thousand dollars of fees without any explanation. I put it down to the vagaries of the judicial mind.
I think that we might see use of this statute as part of a qui tam action (welfare and Medicaid fraud), computer trespass and home improvement fraud. Remember, I already mentioned the need for a defendant with money and I presume any use of this statute requires a fund for a damages award. (For those wondering why I emphasize a defendant with money , a suit for damages means a suit for money). I think anyone will see that the statute's protections are far more limited than one might suppose from its title.
I am sure that I have not provided anyone with a clue about why Hershey chose Indiana and this statute.
read more “Introducing Indiana's Crime Victim's Statute”
As I wrote in that article, I find it difficult to explain what attraction the Crime Victim's Statute has for that case.
As for my list, I complied this for an article I never quite finished on this statute. Which means the chart might have a bit more interest to lawyers than to laypeople. The first column lists the crimes which can be used for a civil suit. The remaining columns show the kind of mental state is required to prove a case. Yes, one must show the defendant acted with criminal intent required under the criminal statute.
As anyone can see, the crimes listed are not ones to truly attract a lot of civil l
litigation. Some do not even have a very wide application in Indiana (like unlawful acts relating to caves) and others probably lack the prime requirement for a civil suit: a defendant with money.My experience with the statute begins and ends with check deception, conversion and criminal mischief. The criminal mischief case involved a defendant splattering a very red paint throughout a very white kitchen. While another statute exists for check deception, this statute has fewer procedural requirements.
With conversion cases, this statute allows for attorney fees where common law conversion does not. The attorney fee provision also lead to the use of the statute with the criminal mischief case. Note that the statute requires payment of reasonable attorney fees. However, the judge or jury decides what is reasonable. In my case, the judge cut off about a thousand dollars of fees without any explanation. I put it down to the vagaries of the judicial mind.
I think that we might see use of this statute as part of a qui tam action (welfare and Medicaid fraud), computer trespass and home improvement fraud. Remember, I already mentioned the need for a defendant with money and I presume any use of this statute requires a fund for a damages award. (For those wondering why I emphasize a defendant with money , a suit for damages means a suit for money). I think anyone will see that the statute's protections are far more limited than one might suppose from its title.
I am sure that I have not provided anyone with a clue about why Hershey chose Indiana and this statute.
Indiana Home Improvement Fraud
The time is coming for home repairs, do not fall victim to. home improvement fraud. Most home improvement contracts fail to meet the requirements of Indiana’s Home Improvement Fraud Statute.
If you contact for any alteration, repair, or other modification of your residential property that costs more than $150.00, then this statute applies to that contract.
The law generally requires:
The law has additional details required when insurance pays to repair damages to the residence.
The Home Improvements Statute falls within Indiana's Deceptive Consumer Sales Act (see my article on that statute starting here) . For a successful suit, you must also follow that statute.
The Deceptive Consumer Sales Act allows for the following remedies:
read more “Indiana Home Improvement Fraud”
If you contact for any alteration, repair, or other modification of your residential property that costs more than $150.00, then this statute applies to that contract.
The law generally requires:
- The telephone numbers and names of any person for handling consumer problems.
- Any time limitation on the consumer's acceptance of the home improvement contract.
- A reasonably detailed description of the proposed home improvements.
- The approximate starting and ending dates.
- A statement of any contingencies that would materially change the approximate completion date
- Be in a form that each consumer who is a party to it can reasonably read and understand.
- The contract price.
The Home Improvements Statute falls within Indiana's Deceptive Consumer Sales Act (see my article on that statute starting here) . For a successful suit, you must also follow that statute.
The Deceptive Consumer Sales Act allows for the following remedies:
- The actual money damages or $500.00, whichever is greater.
- For willful deceptive acts, the court may increase damages to: 3 times the actual damages of the consumer suffering the loss but not more than $1,000.00.
- Attorney fees.
- Read any contracts before you sign off on them to make sure that you are not going to be a victim of home improvement fraud.
- If you have a contract that is bad, I can go to court for you.
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