Legal advice needed...please

Southpaw5 · #1 10-19-2011, 11:32 AM

Hello,

Looking for advice from the lawyers and law savvy TB’ers

My Wife, who is a self employed LMCT(Massage therapist) , has been experiencing major issues with the Studio she previously worked for/with. Basically, the owner has written multiple bad checks and she hasn’t actually been paid in over 5 weeks.

I’ve contacted both her(my wife), and the owners banks to get as much information as I can, and it’s clear these were returned NSF(Non sufficient funds) even though they sat at my wife's bank for 18 days(11 Business days). Also, his is no the first time this has happened either.

The owner has disappeared for over 3 weeks and has not returned a single phone call or email. These checks were for the 2 weeks prior to her disappearance which has caused my wife to have to beg her last boss for a couple days a week as a cashier just to get by. We should start to get some income from that at least in a week or so.

The problem now is, what can we do? Since she is self employed, the states’ Attorney General won’t help, nor will the National labor relations board. I know, because I called both. The Banks cannot help, and I seriously doubt that even if she can get in contact with the owner, we can obtain a check that will clear the bank and not bounce.

So what's next? Do we need to contact the police? The local DA? Hire a lawyer? I don’t like the last option but I really have not idea what to do next as most of the states laws appear to apply specifically to actual employees.

Any one else experience a similar problem in their line of work? Any help is greatly appreciated.

Thanks

Dave

Lonesomedave · #2 10-19-2011, 11:58 AM

man, that sucks.

i am a tennessee lawyer and not a massachusetts lawyer, so i have to say right up front, i don't know the law in massachusetts... and my usual advice to someone which is "contact your own attorney and see what can be done" is useless here because that would cost so much, that i am afraid you would be throwing good money after bad.

in tennessee, to be a criminal bad check, you must have given something of value in return for the check... you get groceries, for example and give them a check which then bounces.

here, i am afraid that would not be the case. your wife performed services after which she received bad checks. she is in no worse shape than if the woman hadn't paid her at all (or made a pretense of paying her).

however, if she gave her these checks as an inducement to continue to provide services, maybe you could say that the last 4 were criminal...i don't know.

bottom line, since she was not an employee, in tennessee, you would be limited to suing her in General Sessions court to try and recoup. this leaves many people out in the cold because there are no punitive damages and each side must pay their own lawyer in the absence of an agreement.

i guess you have to decide if it is worth it to sue on your own-- or on the off chance you can afford a lawyer, knowing there is really scant possibility of recovery.

obviously, my advice is to consult a Massachusetts attorney for REAL advice, but i realize why this might be impractical... i am very sorry.

Jim Nazium · #3 10-19-2011, 12:47 PM

I think you should call a couple of hard, pipe-hittin' brothers and have them go to work on Homes with a pair of pliers and a blow torch.

Balog · #4 10-19-2011, 01:55 PM

Ianal but it sounds like criminal fraud to me. I'd consult the police. Can't cost anything, right?

bassguppy · #5 10-20-2011, 12:48 PM

I'm not a lawyer but has your wife contacted any other employees from the studio to see if they got paid? Be wary that the employer is preparing for bankruptcy and in that case your wife may have to line up behind the other creditors.

See if you can get a background check on the owner but that may cost $$. Not sure if you can file in small claims court.

Also, I'm not sure if you work or not but it's possible your employer may have some sort of legal advice/lawyer firm they offer you as part of your benefits package. If applicable check with your personnel dept.

hbarcat · #6 10-20-2011, 01:19 PM

This sounds like the perfect case for small claims court. Go to your county courthouse and ask the clerk for the form and then fill it out according to the instructions. You will be the plaintiff and the deadbeat who shorted your wife will be the defendant. There will be a small fee, probably about $40. It's just that easy.

You will not need a lawyer. In fact, no lawyers are permitted in small claims court. The sheriff will present the defendant with a summons and you will both go to appear in court at the appointed day and time.

When the judge hears your case he will ask both you and the defendant for your versions of what happened and then render a decision. You need to bring along as much documentation as you have available showing how much he owes you.

Assuming the judge rules in your favor, the defendant will be ordered to pay your wife what she is owed. That should end it. However, if he doesn't pay for some reason, then you will have to take further legal action and the courts will take steps to compel him to cough up the dough (that's the theory, at least).

There is a limit to the amount that can be collected in small claims court - probably somewhere around $5,000. If your wife is owed substantially more than this, you might consider a full lawsuit. But then be prepared to hire a lawyer, and that won't be cheap.

Good luck.

gnjpowell · #7 10-20-2011, 01:23 PM

Prolly SOL. Don't spend a lot of money on sharks as even IF you win you'll never collect a dime if the crook has no dough and nothing for the court to attach and sell. BTDT. Suks!

Southpaw5 · #8 10-20-2011, 02:02 PM

OK a bit more information:

Yes there are other "independent contractors" I'm using this loosely, as it turns out there is a form which may require all of them be classified as employees. There was only one left at the time this all went down. She has apparently received a check yesterday. who knows if it will stick though.

Basically the owner has far too much control for them to actually be independent. She controls the schedule, clients, materials, and all clients are only to be seen on premises. She has a fear that they will "steal" the clients' from her otherwise. They are not truly independent.
The other woman actually saw the owner yesterday and was able to officially resign on the spot at which point she received a new check.
The owner, is still acting like nothing is wrong, and the sad part is everyone know there is a great deal wrong. Her Brother and my Brother-in-law are very good friends since they were kids. They(She and her brother) are are however no longer on speaking terms as she has been refusing to take her medication and thinks everyone is out to get her. Also as it turns out, she has been hiding the money in a separate account all along and only moving it a "she see's fit". The other IC saw 20K in payment checks from her clients' sitting on her desk yesterday.

Basically she's sick and needs to get help, but is too messed up to understand what she's doing. We're giving her one last chance before this goes to Small claims court and possibly reporting her to the police just in case there are criminal implications.

Also, regardless of whether my wife''s pay is received, we will be submitting the information to the IRS so they can decide what to do about the labor classification issue. Hopefully at least that will stop her from doing this to anyone else. and FYI this happened with about a half dozen other therapists during my wife's' 2 year tenure at the spa.

whew....

Balog · #9 10-20-2011, 02:08 PM

What medications is she not taking? Sounds like the possibility of some serious mental health issues going on there.

Southpaw5 · #10 10-20-2011, 02:40 PM

Quote:

Originally Posted by Balog

What medications is she not taking? Sounds like the possibility of some serious mental health issues going on there.

Bingo, not exactly sure, my wife would know better, but if memory serves correctly, Bipolar disorder

hrodbert696 · #11 10-21-2011, 04:35 AM

No legal advice is really valid unless you get it from a lawyer who is a member of the bar in your state. Small claims court may be an option. It really depends on the amount of money involved. If you're talking a thousand bucks or something, you might take it through small claims. If you're talking ten thousand, it will be too big for small claims and you'd need to hire a lawyer. That can get expensive, but just to consult for half an hour and have a lawyer assess the merits of your case probably wouldn't cost over $100-150 - not worth it if you're just talking about one grand or less, but maybe worth it if it's more than that. It's worth spending a thousand on a lawyer to recover ten thousand in lost income.

Another avenue that occurs to me, if your wife is legally an independent contractor, is that you might be able to go to a debt collection agency - what you basically have is an unpaid bill, after all. I assume the collectors charge a fee or a percentage, no idea what it is, but it doesn't hurt to ask. Then the bad checks will at least make their way to the employer's credit report.