Come On, People! Protect Your Financial Interests by Using Common Sense!

By Philip E. Goss, Jr., Esq.

In the law, there is something referred to as a “rebuttable presumption.” A rebuttable presumption is an assumption or inference that is accepted as true, unless rebutted by adverse evidence. Two common examples of rebuttable presumptions are that, in a criminal trial, a defendant is presumed innocent until proven guilty, or that a child born during a marriage is actually the progeny of the husband.

Each can be proven false, but the starting point is that each is true.

My mother wasn’t an attorney, but she taught me my first rebuttable presumption. As children are wont to do, I would frequently come home with some wild story told to me by another kid. Of course, these stories were usually false or greatly exaggerated.

My mother told me some 50-plus years ago to never believe what another kid told me until I could verify that it was true. This is a lesson adults need to remember, but with a twist:

Never believe anything said by anyone who has a financial interest in getting you to part with your money or other resources, until you verify what is told to you.

Today, I spoke with a very smart person who typically exercises good judgment in her business and personal life. However, for some reason, over a year ago she decided to commission a cabinetmaker to remodel her kitchen. After months of promises and missed deadlines, the cabinetmaker is out of business and her several-thousand-dollar-advance payment is long gone.

Of course, I asked the expected questions. No, she did not get a written contract. No, she did not check references. No, she did not verify that the cabinetmaker was bonded, licensed or insured. And no, she failed to check if the corporation under which he operated and solicited her business was, in fact, in existence.

The sole “yes” that will be part of this story is the fact she has likely lost all the money she put into the remodeling endeavor.

Another client used one of these referral services that, for free, will match you to a business that does whatever home-related task that you require. That client was matched with a painter who took a $1,000 deposit and then dropped dead 10 days later.

Obviously, the painter’s unexpected death was not the referral service’s fault. But when my client tried to get a refund, he discovered that the painter was, in fact, delinquent in his corporate status for several years and had many civil judgments against him. Apparently, the background of the painter wasn’t as important to the service provider as was the fee it would receive for the referral.

Whether you live in South Florida (which, in my opinion, is the fraud capital of the world) or in Middle America where people are honest to a fault, you must protect yourself against anyone seeking to trade their goods or services for your hard-earned money. At a minimum, if you’re spending money on a good or service with someone with whom you have no past positive experience, do the following:

• Get a written agreement as to what is being done, the time frame for completion, the fees to be paid, and on what schedule payments are due.
• If a warranty is part of the deal, get it in writing.
• Check references. I repeat, check references.
• If you’re dealing with a corporation that shields the service provider from personal liability (and therefore, limits your options for collection in the event of breach), ask for a personal guarantee in addition to a warranty.
• Never, and I mean never, pay a substantial part of the entire fee up front. If you do, you may never see the service provider again or, in the least and counterintuitively, he/she will not be responsive to you. Similarly, never pay the last installment unless and until the job has been inspected by you and you are completely satisfied. Do not fall into the trap where a promise is made to return and finish the final details. Once they are gone, they are gone, forever.

As Thomas Tusser once opined, “A fool and his money are soon parted.” Consider it to be a rebuttable presumption that, if you do not use your natural common sense and protect your financial interests, you will someday be “ripped off” by unscrupulous service providers. This I promise!

Attorney Phil Goss, Jr. welcomes any email comments or questions at [email protected] and will attempt to respond personally, time permitting.