What are my chances of winning in small claims?

[jeremy levine]

The building code may dictate that insulation be installed and give your the presumption that a completely compliant finished product was expected.

This is NY and I am sure there is a code req. for insulating exterior walls.

[Al Willits]

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Steve,
They can still go after his assets (bank account, car, etc). The only money I have spent is $20 to file, time, and gas money. If the judge reverses the original judgment, oh well... a hard lesson learned and I'll have to fix everything myself.
""""""""""

I think you just answered your own question, you have little in money invested and if your time isn't a problem, I'd go after him, worst case is its a lesson learned, best is you win and hopefully get some restitution.

Learned long time ago, because someone goes to church, doesn't mean that they're all that holy.

Al

[Jack Norfleet]

He obviously has some money if he has a lawyer representing him is small claims court.

[Randy Denby]

"""""""""
Steve,
They can still go after his assets (bank account, car, etc). The only money I have spent is $20 to file, time, and gas money. If the judge reverses the original judgment, oh well... a hard lesson learned and I'll have to fix everything myself.
""""""""""

I think you just answered your own question, you have little in money invested and if your time isn't a problem, I'd go after him, worst case is its a lesson learned, best is you win and hopefully get some restitution.

Learned long time ago, because someone goes to church, doesn't mean that they're all that holy.

Al

I too learned this lesson the hard way... a member of my congregation was getting into remodeling. I helped him out by selling him HVAC equipment at 10% above my cost. He would install the equipment and then pay me to come start it up. We did 3 systems together.....about 4500.00 my cost for the equipment, and he would have paid me 5000.00 or so plus my hourly rate to "start up" the units. He got paid from the business owner......I never did. But, he did send me a hot check for 2100.00 (for one of the 3 units) And I had him put in jail . So I did get the 2100.00 but ultimately lost 2400 plus my time starting up these systems . Never did get the rest of my money, and he died a year later

[Brian Weick]

Alex,
If you have this in writing - I don't see a problem; However, if this is a verbal contract- that may not bode so well for you in fighting this case. If this (slime ball) says he closed his business,- find out. find out out if he even had a legitimate business and not just a calling card. Did he have insurance-? there are fines he will have to pay if he didn't file for a permit and that process involves verification of insurance - in most states. If he closed his business- so what, does ho own property- liens will be filled against his property in order for you to receive your money. He will not like that! this sometimes can entice him to be a little bit more cooperative.
The problem is - if you didn't have a contract- that may be a problem- as others have said here - it's a he said- she said issue. I own my own business and do not do anything until I clearly list out what is being done. Products being used, where it is being installed,how it will be installed-etc,etc, what ever is involved for the project i have been requested to complete. this protects me - first of all, people will try and say well you said you would do this, or that- NO - I have never had that problem- I think that is an insult. It also protects the one requesting the work - there is a clear understanding in black and white of what is to be done - signed and dated by me and the individual/corporation hiring me. He/she gets a copy - I have 3 copies.
I hope you get that scum ball - and make him pay ,not just for the work he scammed out on - there may be other damages that are applicable as well ~ talk with your lawyer about this. I hope all works out to your benefit Alex.
Sincerely,
Brian

[Brian Weick]

This is NY and I am sure there is a code Re. for insulating exterior walls.

Hey Jeremy- Where's the snow? hmmmmmmm Buffalo!
How you doing?
Jeremy,
All he has to say is I was just hired for the framing - that does not bind him to have the insulation installed as well- there could have been a separate contractor that would have come in behind him to do the insulation, or the homeowner was going ot do it - that will not stand up in court! Even if he was supposed to install insulation by code (verbal contract) the state will get there money from fines and penalties but were does that leave the homeowner- out in the cold.
Brian

[Alex Berkovsky]

This is NY and I am sure there is a code req. for insulating exterior walls.

Jeremy,
Any idea if I can find this code online or is it just better to get in touch with the local buildings dept.? Thanks to all for your thoughts and suggestions.

[edit]
Hmmm... I wonder if there is a way to find out if he was operating a licensed business? According to this site (last line), it's a misdemeanor to operate a home improvement business w/o a license.

[Brian Weick]

Jeremy,
Any idea if I can find this code online or is it just better to get in touch with the local buildings dept.? Thanks to all for your thoughts and suggestions.

[edit]
Hmmm... I wonder if there is a way to find out if he was operating a licensed business? According to this site (last line), it's a misdemeanor to operate a home improvement business w/o a license.

Alex,
do you have a signed/dated contract detailing what he was going to do?
Brian

[Alex Berkovsky]

Alex,
do you have a signed/dated contract detailing what he was going to do?
Brian

Yes, but it does not go into details and doesn't specify insulation. I guess the only thing I have to go to court with are pictures showing that other walls were insulated and my sworn testimony that he said in our phone conversation that he insulated all the walls as agreed before the work started.
I know he has a good chance of winning this appeal, but I hope the judge/arbitrator sees this guy for a crook that he is.

[Rick Christopherson]

It doesn't matter what agreement you may or may not have, or whether insulation was mentioned or not mentioned. Your local building code does require insulation of exterior walls, and he is not permitted to construct the walls without it. Even if the walls were previously framed before code required specific grades of insulation, he could not install new sheetrock without insulation.

Call your state building inspector and ask him/her for the code reference, and bring this with you to court. You may even be able to request an inspection by the building inspector, especially if a permit had been pulled at the time of the work. Even if a permit had not been pulled, you should still be able to request an inspection for a fee comparable to pulling a permit. Given that it is in the building code, a judge cannot overturn the judgment even if a contract existed that specifically excluded insulation. A contractor cannot perform work that he knows is not within code.
========================
Now with that aside, the one thing that troubles me is that you apparently only inspected areas where there were access panels, and the only area where there was no insulation was around the water shutoff. This doesn't automatically mean that there is no insulation in the rest of the walls. If it is a case where the only missing insulation is around the access panels, then correcting the problem is about $20.

It could easily be argued that these areas were not insulated because they were access points. You need to check other areas as well. Remove the electrical outlet and switch covers and check the space between the drywall cutout and the outlet box to see if there is insulation present.

[Alex Berkovsky]

...Call your state building inspector and ask him/her for the code reference, and bring this with you to court.

I just called and was told that it's required, but not in basements.

Now with that aside, the one thing that troubles me is that you apparently only inspected areas where there were access panels, and the only area where there was no insulation was around the water shutoff.

I stuck a camera in the access panel and it clearly shows that the wall is bare.

I have to clarify one statement... I said that no where in the contract the insulation is mentioned. I personally, could not find my copy of the contract. When his lawyer mailed to me a copy of a certified letter for ORDER TO SHOW CAUSE, he included a contract copy (faxed to him by the contractor). In the letter it states that the insulation was not included in the contract. I just looked at that copy again and noticed something peculiar. Look at line #6 which carries over... I says in broken English "All walls sheetrocked", then what looks like something erased, and on the next line, "on extirro wall". I bet he erased something that said "All walls sheetrocked and insulated on exterior walls".

The lawyer also says that I paid him $5,000 for the job; my canceled checks say $8,300. So what do you folks think now?

[Jim Becker]

The word insulation does indeed appear to be on that line...although it's, um...faded...

And canceled checks are pretty good evidence of payment...and hopefully they clearly indicate they are for the same job...

[Tim Morton]

I just called and was told that it's required, but not in basements.

I stuck a camera in the access panel and it clearly shows that the wall is bare.

I have to clarify one statement... I said that no where in the contract the insulation is mentioned. I personally, could not find my copy of the contract. When his lawyer mailed to me a copy of a certified letter for ORDER TO SHOW CAUSE, he included a contract copy (faxed to him by the contractor). In the letter it states that the insulation was not included in the contract. I just looked at that copy again and noticed something peculiar. Look at line #6 which carries over... I says in broken English "All walls sheetrocked", then what looks like something erased, and on the next line, "on extirro wall". I bet he erased something that said "All walls sheetrocked and insulated on exterior walls".

The lawyer also says that I paid him $5,000 for the job; my canceled checks say $8,300. So what do you folks think now?

I agree with Jim...the word insulation is very easy to see and that sentence flows well with "on exterior walls" but the date of 2002 may work against you. Good Luck!!!

[Brian Weick]

Like he tried to erase the word insulation and scratch it off- the sentence itself makes no sense without it- The walls ,,,, and nothing? This guy is a crook! - "Nail him to the wall" Alex! You have better than a good shot at this case in my opinion.
Brian

[Alex Berkovsky]

I am finding out for myself why people hate the court system. The letter from the court asked me to appear for order to show cause hearing last night. The lawyer is asking the court to set aside the judgement in favor of the plaintiff and to dismiss the complaint. I appeared, but neither the defendant nor his lawyer showed up. I was fuming; third time in a row I am showing up and the defendant is not.
When I got home and settled down a little, I read the lawyers copy of order to show cause to the court. This copy is asking to appear on 10/10/07 for hearing. So now, I have a letter from the court to appear on 9/26/07 and a copy of the certified letter sent by the lawyer to the court to appear on 10/10/07. I guess I should try to call the court to see if they can straighten this out (not holding my breath).